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68 Cards in this Set
- Front
- Back
What is law?
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body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects
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Substantive law
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the rules and regulations themselves (statutes, ordinances,etc)
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procedural law
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the means, methods, and steps (the processes) for promulgating, implmenting, and enforcing the rules and regulations
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Where do laws come from? What is teh source of law?
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Law is derives either from:
(1) human authority and institutions (2) sources and authority apart from humankind and experience |
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different ways of classifying jurisprudence
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common law
civil law socialist law Islamic law Mosaic law Canon law |
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precedent
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principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts
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sources of American law
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Constitution
legal precedents statutory law/ordinances executive orders treaties administrative regulations |
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Constitutions generally....
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-establishes a body politic
-identifies those for whom the Constitution was created -sets forth the fundamental principles, values, and purposes of hte polity -establishes the basic structures and institutions of civil govt -identifies the legitimate powers and duties of civil govt -describes the rights and citizens free from govt infringement -outlines the mechanisms for creating and amending law, including the Constitution itself |
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common law
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system of jurisprudence developed in England and transferred to the American colonies. As distinguished from civil or statutory law, the common law comprises the body of laws derives from principles, usages, rule of action, customs of immeorial antiquity, and previous decisions of judicial tribunals. The principle doctrine of common law is stare decisis which requires courts to adhere to legal principles set forther in prior cases decided by superior courts of the jurisdiction
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principle doctrine of common law
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stare decisis
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strengths of precedent
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stability/consistency/continuity because common law is deeply rooted in tradition
predictability over a 1,000 years of experience and experimentation, common law reveals that which works and that which does not reflects popular consent because it has been accepted and maintained for such an extended period of time |
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weakness of common law
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inflexible and difficult to change
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King Alfred the Great
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Anglosaxon
began a common legal system as he unifed those living in England wrote "Domboc" a book of laws |
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William the Conqueorer
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French king from Normandy
Battle of Hastings--overthrows English government post 1066--common law develops |
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Henri de Bracton
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"On the Laws and Customs of English"--book of compilation of legal precedents
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Sir William Blackstone
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"Commentaries on the Laws of England"
one of the most important in study of Anglosaxon law precedent categorized into different branches of law comprehensive accessible to broad audience survey of common law |
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civil law
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system of jurisprudence based on Roman law (and later Canon law) and found in much of the world once governed or influenced by the Roman Empire (except England). The authoritative source of law in a civil law system is written legal codes or statutes arrived at through legislation, edicts, and the like. The civil law judge applies the relevant code or statute
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Emperor Justinian
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established civil law
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American legal system?
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American operates under a sort of hybrid between common law and a code based system
ex. criminal law codes |
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criminal law
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prohibits, prosecutes, and upon conviction, punishes conduct that the public (usually speaking through their legislatures) has defined as offenses against the public
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civil law
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concerned with civil rights and civil duties and their enforcement. All legal questions that do not involve crimes are matters of civil law. Civil law deals with non-criminal wrongs such as breach of contract, torts, divorce, etc
-->questions of LIABILITY |
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In a civil case, what is the standard of proof?
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preponderance of evidence
= more likely than not |
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In a criminal case, what is the standard of proof?
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proof beyond reasonable doubt
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Why is the standard of proof higher in a criminal case?
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greater degree of evidence necessary when someone could be deprived of their liberties--minimize error
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absolute discretion
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opposite of rule of law
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Rule of law maxims
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"we are a nation of laws, not of persons"
"no person is above the law" |
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The Law is King, Thomas Paine
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"but where, say some, is the king of American?...[I]n American the law is king, for as in absolute government the king is law, so in free countries teh law ought to be king; and there ought to be no other"
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Rule of law means:
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(1) LAW, not the discretion of an individual or some governing group, is the supreme authority in society
(2) the power of the civil government is limited by law (3) the limits imposed by law can be enforced through established procedures |
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What (2) dimensions make up rule of law?
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SUBSTANTIVE
PROCEDURAL |
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substantive expression
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rule of law is expressed substantively through dule enacted law. The highest expression of written law in our legal system is the US Constitution
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What is the procedural expression of rule of law?
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DUE PROCESS
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Whenm is a citizen entitled to due process?
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(1) Before civil government can exercise its powers adverse to one's interests (life, liberty, property) it must first provide a measure of due process
(2) There can be no criminal punishment or civil liability without the prescribed process of law. THe law must follow defined, pre-determined rules (or processes) in the course of reaching a particular outcome (3) The greater the interests at stake, the most exacting the due process |
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Origins of due process
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-elements as far back as the mosaic law (ex. Exodus 23: 1-3, 6-9)
-component of the Magna Carta (art 39-40), which imposed limits on the discretionary power of the king -explicitly written into the 5th and 14th amendments of the Constitution |
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(3) features of Due Process
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(1) Notice
(2) Hearing (3) Legal equality |
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Notice
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due process requires that there be adequate advance specification of what the law requires before the law can be applied adverse to one's interests
---the opportunity to be aware of the law -no ex post facto laws (Const. Art. 1, Sec 9-10) -vagueness doctrine |
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Hearing
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due process requires that an individual be afforded the opportunity to be heard in one's defense before an impartial tribunal before being subjected to some penalty
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Legal equality
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due process requires that laws be applied in like manner to people in like situations (designed to control discretion and invidious discrimination)
--equal justice under the law |
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How do we make a hearing as fair as possible?
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-jury of peers: act as a buffer between the powerful state and the individual
-right to public trial--public scrutiny serves as a check -right to assistance of counsel -right to a speedy trial -separation of power between judge and jury -right to confront one's accusors |
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Constitution Day
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signed on Sept 17, 1787
ratified on June 21, 1788 implemented on March 4, 1789 |
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Constitution
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jurisdiction's expression of its fundamental, authoritative law. Made and/or ratified by those in whom the sovereign power of the civil states resides
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Influences on the American constitutional tradition
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the American constitutional and political traditions drew on diverse sources including Hebraic, biblical, Protestant, classical and civic republican, Enlightenment liberal, and English common law and constitutional sources. The english tradition was among the most immediate and influential
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defining features of American constitutional tradition
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-consent of the governed
-limited government -representative government -separation of powers -rule of law--checking arbitrary discretion -due process of law -individual rights -right to resist tyrannical government |
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themes and principles of the US Constitution
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-popular sovereignty
-republicanism (consent of the governed, republic democracy) -limited government -rule of law/ due process -diffusion of government powers -individual rights and autonomy --->fundamentally about restrictions of government power |
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Preamble
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statement of purpose and creation of body politic
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Article I
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powers of the legislature
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Article II
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powers of executive
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Article III
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powers of the judiciary
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Article VII
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ratification process
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Article V
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amendment process
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Article VI
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powers of national government
-responsibility of debts -supremacy of federal laws and treaties -oaths of office |
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Federalists
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supporters of the Constitution, preferred a strong central government
ex. Madison |
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Antifederalists
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required the Bill of Rights to ratify, supported states rights
ex. Jefferson |
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9th Amendment
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addresses potential danger of explicitly listing rights--enumeration of rights shall not be construed to deny rights to the people
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12th Amendment
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electoral college votes for President and Vice President
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13th, 14th, 15th Amendments
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post Civil War amendments, abolishes slavery
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16th Amendment
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gives Congress the power to collect income tax
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17th Amendment
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popular election of senators
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19th Amendment
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gives women the right to vote
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22nd Amendment
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places limits of number of terms a president can serve
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26th Amendment
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voting age
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24th Amendment
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prohibits poll tax
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27th Amendment
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most recent amendment, Congressional pay raises do not take effect until the following term
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judicial review
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power of the courts to declare unconstitutional --and hence null and unenforceable--any act of Congress, Presidential order, state law, or administrative regulation that the court deems to be in conflict with the Constitution
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Why do we give the Supreme Court the power of judicial review?
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Checks-and-balances; critics remark on the un-democratic nature, unelected justices have ability to overturn decisions made by democratically elected legislators
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Where does the Supreme Court derive the authority of judicial review?
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implied
-Supremacy clause -Judiciary Act of 1789 Marbury v. Madison |
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Theory of Incorporation
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the application of the Bill of Rights, selectively, to the states
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1st Amendment
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Freedom of:
-religion -speech -press -assemblage |
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Intent of free exercise guarantee?
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meant to prevent Congress from prohibiting or compelling religious worship
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