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The Law of Journalism and Mass Communication: Chapter 1
Terms in this set (125)
Citizens United V. Federal Election Commission
2010 decision holding that under the First Amendment, corporate funding of independent political broadcasts in candidate elections cannot be limited; declared some campaign finance laws unconstitutional
Aristotle thought people are...
self interested; they pursue their own interests to the exclusion of the greater good or the cause of justice
Astute people recognize that personal interests and short term goals must...
sometimes give way to communal, universal or long term objectives
The Four Foundations of the Rule of Law
1. All individuals and private entities are accountable under the law
2. The laws are clear, public, stable and just; are applied evenly; and protect fundamental rights
3. The process by which the laws are enacted, administered and enforced is accessible and fair
4. Justice is delivered in a timely manner by competent, ethical, independent and neutral representatives who serve the public good
Who was Lon Fuller?
Harvard legal scholar who articulated a foundational understanding of the rule of law
Fuller's rule of law is...
A set of standards intended to create norms and procedures that provide for consistent, neutral decision making equally for all.
Fuller thought the rule of law requires laws to be (8 points)
1. general and non discriminatory
2. widely known and disseminated
3. forward looking in their application rather than retroactive
4. clear and specific
5. self-consistent and complementary of each other
6. capable of being obeyed
7. relatively stable over time
8. applied and enforced in ways that reflect their underlying intent
The law functions best when...
it makes clear, comprehensible and consistent distinctions between legal and illegal behavior
Good laws must be...
publicly disseminated and sufficiently clear and precise to properly inform citizens of when and how the law apply (as well as when they do not)
What are vague laws?
Laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish
Define their terms and detail their application in order to limit government officials' discretion. (They advance the rule of law by reducing the ability of officials to apply legal rules differently to their friends and foes)
What is discretion?
The authority to determine the proper outcome
A principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary
Example of an overbroad law:
A law that sought to limit noisy disturbances of residential neighborhoods at night if it prohibited all discussion out of doors, anywhere at any time.
The doctrine that courts follow precedent; the basis of common law, it literally means to stand by the previous decision
The outcome of a previous case that establishes a rule of law that courts within the same jurisdiction rely on to determine cases with similar issues. AKA stand by what courts have decided previously. Encourages predictable application of the law
True of false: laws are not inflexible
Marbury v. Madison (year, and why important)
1803; established the courts' power to interpret laws
The laws of journalism and mass communication generally originate from six sources. What are these six sources? What do they do?
1. Constitutions: establishes the nature, functions and limits of government
2. Statutes: written law formally enacted by city, county, state and federal legislative bodies (all criminal law are statutes) (rules of copy right, broadcasting, advertising and access to government meetings and information)
3. Equity law: law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy
4. Common law: Judge-made law comprised of the principles and traditions established through court rulings; precedent-based law
5. Administrative law: The orders, rules and regulations promulgated by executive branch administrative agencies to carry our their delegated duties
6. Executive Orders: Orders from a gov't executive, such as the president, a governor or a mayor, that have the force of law
Black letter laws: Definition and example
Formally enacted, written law that is available in legal reporters or other documents; statutory law and constitutional law are both examples
Doctrines: What point of law it has to do with and definition
Has to do with equity law and common law; principles or theories of law that shape judicial decision making
Questions not subject to political review because they fall into areas properly handles by another branch of government
True or false: State constitutions are not distinct and independent from the US Constitution they mirror
False: They are distinct and independent
A principle according to which the states are related to yet independent of each other and are related to yet independent of the federal government
experimentation and variety in government
When was the bill of rights ratified?
What is supremacy?
Article 4, Part 2 of the US Constitution (commonly called the supremacy clause) establishes that the federal law takes precedence over, or supersedes, state laws
The US Constitution explicitly delegates the power to enact statutory laws to...
The US Congress and the state, county and city legislatures
True of false: The ordering of the amendments was intentional and reflects any hierarchy of principles
What are the two ways to amend the Constitution?
1. The first and only method actually used is for both chambers of Congress to pass a proposed constitutional amendment by a two-thirds vote in each
2. two-thirds of the state legislatures to vote for a Constitutional Convention, which they propose one or more amendments.
All amendments to the constitution must also by ratified by the three fourths of the state legislatures
What happens when the language of a statute is unclear, imprecise, or ambiguous?
courts determine the law's proper meaning and application through a review process called statutory construction
Courts tend to engage in this; narrowly defines laws to their literal meaning and clearly stated intent
The effort to interpret laws according to the "plain meaning" of words; limits any tendency courts might have to rewrite laws through creative and expansive interpretation
True of False: The power of courts to engage in statutory construction is inherently democratic
FALSE because judges in many states are not elected- making it nondemocratic
True of False: Courts may invalidate state statutes that conflict with federal laws, or city statutes that conflict with either state or federal law
The judicial practice of interpreting statues and rules by relying heavily on the judgments and intentions of the administrative exerts and legislative agencies that enacted the laws
A legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional
The power of the courts to determine the meaning of the Constitution and decide whether laws violate the Constitution
True or False: US common law rests on the presumption that prior court ruling, or precedent, should guide future decisions
research in the thousands of court decisions collected into centuries of volumes
to change rather than follow or reject precedent
Supreme Court justices who interpret the Constitution according to the perceived intent of its framers
Distinguish from precedent
To justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities. AKA by assering that factual differences between the current case and the precedent case outweigh similarities
True or False: Newspapers are not independent members of the press with a protected right to control their content
To reject the fundamental premise of a precedent; generally occurs only to remedy past errors or to reflect a fundamental rethinking of the law.
Example: in 1997 Supreme Court overruled a 12 yr old precedent that had prohibited public school teachers from providing remedial education in parochial schools. The Court said the precedent has mistakenly confused government efforts to fulfill its mandate to educate all children with unconstitutional government establishment of religion
True or False: Legislatures make equity law in order to provide fair remedies and relief for various harm
FALSE; Judges make equity law
What presumption is equity law based on?
That fairness is not always achieved through the rigid application of strict rules, and fines are not always the correct remedy for a legal harm
True or False: Administrative law may constitute the largest proportion of contemporary law in the United States
True or False: regulatory rules have the force of law
True or False: The power of courts to void agency rules and actions is not limited to situations in which the agency clearly has exceeded its authority, violated its rues and procedures or provided no evidence to support its ruling
False; it is limited
Can the authority, or even the existence, of administrative agencies change?
True or False: Heads of the executive branch of government have limited power to issue executive orders, which have the force of law
What do trial courts do? Whats another name for trial courts?
do fact-finding, apply the law, and settle disputes; federal district courts
What do the Courts of appeal do? What courts are included in the Courts of appeal?
review how lower courts applied the law, create equity and common law and apply and interpret constitutions, statutes and orders, can reshape laws or even throw them out as unconstitutional; Federal circuit courts and supreme courts in each system
a court's authority to hear a case; the geographic or topical area of responsibility and authority of a court- that is in its own geographic or topical area...
Where are cases involving controversies between states, between citizens of different states or between a state and a citizen of another state heard at?
The federal courts
True or False: The Constitution requires the publication of executive orders
False: it neither defines nor requires the publication of executive orders
The US test to establish jurisdiction over online disputes requires courts to answer 3 questions in the affirmative. These three questions are...
1. Did the defendant purposefully conduct activities in the jurisdiction of the court?
2. Did the plaintiff's claim arise out of the defendant's activities in this local?
3. Is it constitutionally reasonable for the court to exercise jurisdiction
What Courts are a part of the Federal Court System?
US District Courts, US Circuit Courts of Appeals, Supreme Court of the United States
What Courts are a part of the State Court System?
Country, municipal, traffic, magistrate, etc.; Special Court; Superior Court; Court of Appeals; State Supreme Court
a practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor
True or False: Anyone who loses a case at trial may appeal the decision
True, however courts of appeal generally do not make findings of fact or receive new evidence in the case
Literally, "new" or "over again." On appeal, the court may review the facts de novo rather than simply reviewing the legal posture and process of the case. (only in rare cases do courts of appeal review case facts de novo)
Whether the proper law was applied and whether the judicial process was fair and appropriate; fair legal proceedings. Due process is guaranteed by the fifth and 14th Amendments to the US Constitution
True or False: Decisions in appellate courts are based primarily on which are arguments, or briefs, and on short oral arguments from the attorneys representing each side of the case.
amicus curiae and amicus belief
A submission to the court from amicus curiae, or "friends of the court" which are interested individuals or organizations that are parties in the case. Their filings are called amicus brief
Two Levels of Appellate Courts
Intermediate courts of Appeal and Supreme Court
How many circuit courts are there?
13 intermediate level appellate courts
Literally, "on the bench" but now meaning "in full court." The judges of a circuit court of appeals will sit en banc to decide important or controversial cases.
to ratify, uphold or approve a lower court ruling (Courts of appeal may affirm the decision of the lower court with a majority opinion)
to reverse the ruling of a lower court (courts of appeal can do this)
A separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles
a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision
to send back to the lower court for further action
How many sitting judges must sign a circuit court of appeals decision before it is final?
two of the three
When was the Supreme Court established?
the authority to consider a case at its inception, as contrasted with appellate jurisdiction
writ of certiorari
a petition for review by the Supreme Court of the Unites States
When does the Supreme Court grant writ of centiorari?
for compelling reasons, such as when a case poses a novel or pressing legal question. when different US circuit courts of appeal have issued conflicting opinions, whether an issue is ripe for consideration (real or present controversy rather than a hypothetical question)
term used to describe a case in which the issues (controversies) presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evades review
Who makes up the Supreme Court?
1 chief justice and 8 associate justices
What do liberal justices tend to believe?
that the government should play an active role in ensuring individual liberties. They also tend to support regulation of large businesses and corporations and to reduce emphasis on property rights
Once the court agrees to hear a case, the parties...
file written briefs outlining the facts and legal issues in the case and summarizing their legal arguments
A majority of the justices must agree on ______________ for the court to establish binding precedent
a point of law
______________ are circulated among the justices, and ____________ may attempt to shift votes
draft opinions; negotiations
It may take ______ for the Court to achieve a final decision, which is then announced on decision day
per curiam opinion
an unsigned opinion by the court as a whole (although a single justice may draft the opinion, the authorship is not made public)
an order announcing the vote of the Supreme Court without providing an opinion
Judges - in particular, Supreme Court justices - who rely exclusively on a careful reading of legal texts to determine the meaning of the law.
The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.
True of False: Grand juries determine guilt
False; they do not determine guilt. Instead, grand juries are summoned on occasion to hear the state's evidence and determine whether that evidence establishes probable cause to believe that a crime has been committed
a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt
A grand jury may be convened on the county, __________, or federal level; With ___ to ____ members, grand juries are usually ___________ than trial juries
state; 12 to 23; larger
If the state fails to establish _____________________, the case may not proceed
If probable cause is found, the person is ___________
________________________________ is required to establish guilt in a criminal trial
Proof beyond a reasonable doubt
civil suits generally involve...
two private individuals or organizations that cannot resolve a dispute
the party who files a complaint; the one who sues
the party accused of violating a law, or the party being sued in a civil lawsuit
a private or civil wrong for which a court can provide remedy in the form of damages
liability without fault; liability for any and all harms, foreseeable or unforeseen, which result from a product or an action
True or False: Under a strict liability standard, the plaintiff does not need to demonstrate fault on the part of the defendant in order to win the suit.
Under strict liability, the individual who _________________________ is liable for all resulting harms
produced the product or took the action
What is the path of civil lawsuits?
Service of Process
Answer to Complaint
Final Judgement or Appeal
motion to dismiss
a request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way
a request that a court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant
Before a case goes to trial, the disputing parties may agree to an out-of-court settlement. When this occurs, there is....
no public record of the outcome of the case
the pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered
a command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for noncompliance
civil suits are settled by the parties before trial almost __% of the time
if no settlement is reached in a civil lawsuit, the case may then proceed to a __________________, which is required if either party requests it
the locality of a lawsuit, where the original court hears the suit
the location from which a court draws its pool of jurors
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge. Goal to form an impartial jury
during jury selection, a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through peremptory challenges.
the party making the appeal; also called the petitioner
wants the verdict to be affirmed; The party against whom an appeal is made
a judge summarily decides the case and issues a judgement; when parties ask a court to dismiss a case they file a motion for this; parties moving for this seek to avoid the cost and risk of losing a trial by providing evidence that neither party disputes the underlying facts; results in a legal determination without a full trial
legal research often beings in _____________ sources that analyze, interpret and discuss the ______________ documents.
How to make a legal citation
names of the parties in the case, the number of the volume in which the case is reported, the abbreviated name of the official legal reporter (or book) in which the case appears, the page of the reporter on which the case beings and the year in which the case was decided.
FEC v Wisconsin Right to Life Inc., 551 U.S. 449 (2007)
This citation shows that the first party filed an appeal from a decision in favor of the second party. The case appears in volume 551, beginning on page 449, the case was decided in 2007
Three steps to read the law
1. Pre-read the case
2. Skim the entire case
3. Read carefully the sections you have identified as important
a. the issue
b. the facts
c. The case history
d. The common law rule of law
e. The analysis
the decision or ruling of a court
The Five components of a case brief:
Rule of Law (precedent)
Application (rationale, details why the court reached its decision)
Conclusion (did the court affirm, remand or reverse?)
guides on how laws should be
How to deal with precedent
1) Follow precedent
Sets with similar terms
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