23 terms

Ch. 1 The American Legal System

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five sources of law
1. common law
2. equity law
3. statutory law
4. constitutional law
5. executive orders and administrative rules
law
a set of rules that attempt to guide human conduct and a set of formal, governmental sanctions that are applied when those rules are violated.
common law
"discovered law", sometimes judge-made law.
An inductive system in which a legal rule is arrived at after consideration of many cases.
It's ability to adapt to change is directly responsible for its longevity.
Fundamental Concept: Judges should look to the past and follow court precedents.
Deals with smaller, individual problems.
stare decisis
let the decision stand (in latin). Common law.
benefits of precedent
it builds predictability and consistency into the law-which in turn fosters judicial legitimacy, especially in the public's eye.
four options for handling precedent
1. accept/follow
2. modify/update
3. distinguish
4. overrule
case reporter
a collection of single court cases
citation
an identification number, which reflects the name of the reporter in which the case can be found, the volume of that reporter, and the page on which the case begins. In the case reporter. Example:
Adderly v. Florida 385 U.S. 39 (1966)
typical remedies in equity law
1. Temporary restraining order (TRO)
2. Preliminary injunction
3. Permanent injunction
equity law
another kind of judge-made law. Not that different from common law.
Differences in procedures and remedies are all that distinguish the two.
Not tried in front of a jury. Rulings come in the form of judicial decrees.
Judges can issue orders that can either be preventive (prohibiting a party from engaging in a potential behavior it is considering) or remedial (compelling a party to stop doing something it is currently doing)
statutory law
created by elected legislative bodies at the local. state, and federal levels.
Statues tend to deal with problems affecting society or large groups of people(common law = smaller, individual problems).
It can anticipate problems (common law can't).
The criminal laws in the U.S. are all statutory laws.
They are collected in codes and law books (instead of in case reporters).
statutory construction
the process of judicial interpretation.
constitutional law
The supreme law of the land. provide the plan for the establishment and organization of the government. they outline the duties, responsibilities, and powers of the various elements of government. they usually guarantee certain basic rights to the people, such as freedom of speech and freedom to peaceably assemble. approved or changed by a direct vote of the people. statues.
void for vagueness doctrine
a law will be declared unconstitutional and struck down if a person of reasonable and ordinary intelligence would not be able to tell, from looking at its terms, what speech is allowed and what speech is prohibited.
overbreadth doctrine
a law is overbroad if it does not aim specifically at evils within the allowable area of government control but sweeps within its ambit other activities that constitute an exercise of protected expression.(Can be declared unconstitutional).
Executive orders and Administrative Rules
Orders issued by elected officers of government (executive orders or declarations). Rules generated by the administrative agencies of government, at the federal, state and local levels.
Government executives: the U.S. president, governors, mayors, county executives, village presidents.
Trial courts
fact-finding courts. juries.
Appellate courts
law reviewing courts. no juries.
writ of certiorari
a discretionary order issued by the court when it feels an important legal question has been raised. When the Supreme Court grants this, it is ordering the lower court to send the records to the high court for review.
Types of Supreme Court Decisions
1. Opinion of the court (majority opinion)
2. Concurring opinion
3. Dissenting opinion (minority opinion)
4. Plurality opinion
5. Per curiam opinion (unsigned opinion)
6. Memorandum order
1st Amendment Freedoms
1. Speech
2. Press (professionals)
3/4. Religion: establishment (no state religion)/free exercise (may practice any religion)
5. Peaceably assemble
6. Petition the government for a redress of grievances
Branches of Government/Powers
1. Executive: President. Power to enforce laws
2. Legislative: makes laws (congress, state legislature). Power of Purse
3. Judicial: interprets law. No power, rely on president to enforce laws
Civil Disobedience
People's Power