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How a law is made
Terms in this set (71)
Individuals who are paid to try to influence the passage or defeat of a legislation.
Contact person: networking for the cause.
Campaign organizer: gathers support for a legislative program
Informant: conveys information to legislators
Watch dog: scrutinize legislative calendars/activity, alerts clients to affecting activity
deliberate creation of legal precepts by a body of government.
Primary task of Legislative bodies
is to make law
Laws may be created in response to
a large scale problem, social unrest, conflict, environmental deterioration, or technological innovation.
legislative response increases when
powerful interest groups mobilize, public becomes concerned OR is indifferent to the wants of the interest group, and there is no pressure to maintain status quo.
Normative stages of lawmaking
Instigation and publicizing (mass media, interest groups), information gathering (data, impact, functions), formulation (devising a remedy), interest aggregation (support form other lawmakers), mobilization (enactment), modification (altering the proposal)
The role of the courts (passive)
is to interpret and apply the law, places the burden on citizens or organizations, ("assumes that each individual will voluntarily and rationally pursue his/[her] own interests" Black, 1976: 138)
Important function of the courts
is to process disputes
a conflict of claims or rights; an assertion of right, claim or demand on one side, met by contrary claims on the other
disputes may be between
individuals, organizations, between both
the judge or jury renders the official judgment of the trial court in a civil or criminal case as to the defendant's guilt or innocence
Three types of judicial lawmaking
By precedents, interpretation of statues, or by interpretation of the Constitution
What branch of government is the courts
Courts of limited jurisdiction, trial courts, intermediate courts of appeal, court of last resort,
Courts of limited jurisdiction
municipal courts, police magistrates, family court, traffic court. Minor cases, limited in jurisdiction.
district court, circuit court. hears most civil and criminal cases, uses a jury.
intermediate courts of appeals
only 20 of the 50 states have and intermediate level. Reviews cases decided at the trial court level
Court of last resort
supreme court, superior court. reviews cases decided by the lower appeals court.
94 district courts in the US, a single jusde usually presides, juries used about 50% of the time
US appeals court
13 circuits; panel of 3 judges in each. reviews decisions made by the district courts within their jurisdiction. reviews the decisions of federal regulatory agencies
US supreme court
1 chief justice, 8 associate justices. Jurisdiction is highly discretionary through a process of certiorari (rule of 4) review cases of federal interest.
US supreme court jurisdiction
Controversies between, two states, or the US and an individual state, or actions by a state against a citizen of another state or an alien, or cases brought by or against a foreign ambassador or consul.
appeals take two forms
trial de noco (a new trial), or erroneous conviction
soul function of the appellate courts
is to correct errors committed in law by the trial courts
stand by what has been decided
Following precedents enables
predictability, certainty and continuity
judges decisions are based on case law
a body of opinions developed by judges over time in the course of deciding particular cases
judges deemed gatekeepers
error rate, scientific method, testability, and peer review. (a testimony must be relevant and reliable)
general acceptance in the field is the standard for expert testimony admissibility.
a judge may be confronted with a case for which there is no precedent
judges search for analogies in property law that seemed applicable. Value judgement.
Precedents must be considered a weaker and less authoritative source of law than a statute
because they are considered a weaker source of law, judges are not required to follow precedent if the precedent is perceived as conflicting with a constitutional right.
the intent of the law may be ambiguous
WHY? bad drafting, intentionally, lack of foresee ability
interpretation of statutes
judges will determine the effects of legislative decisions
more finality, primary function is lawmaking, formulate rules in anticipation of cases, no justification, more freedom to make significant changes, broad - general in scope, and more responsive to outside pressure
less finality, main function is to decide disputes - lawmaking function is incidental, formulates rules in response to controversies, justification for applying a particular rule,less freedom to make changes - precedents and growing body of law, deals with particular cases, and less responsive to outside pressure.
how does a good lawyer decide whether a client has a good or bad case?
look at the facts and apply the law to those facts.
Fourth branch of government
recent growth, over 50 federal agencies, over100 state agencies, powers of adjudication and rulemaking
The organization of Administrative agencies
created for the purpose of administering particular legislation. powers contained in that legislation. given task of applying the legislation to particular situations, generally created in response to crisis
Administrative agencies are also subject to the pressure of interest groups
appointees are often taken from the industry that the agency is thought to regulate. protecting the interests of the public vs. protecting the interests of the group.
Administrative Rulemaking (single most important function)
the establishment of prospective rules (laws made by administrative agencies) by an administrative agency. Formulation of a policy or an interpretation that the agency will apply to all persons/businesses regulated by the agency.
the process by which an administrative agency issues an order.
Administrative equivalent of judicial trial.
interpreting policy or defining new policy to deal with a particular case, settling disputes/mediating claims falling under the scope of the agency.
may try to influence either the legislature or the court
to influence legislatures, the group:
must be economically powerful OR able to mobilize a large number of voters, may be more political in nature, may act as a communication network for social movements
to influence courts, the group:
must hire an attorney, may file an amicus curiae brief ("friends of the court")
amicus curiae brief
a document explaining their side of the argument, it brings knowledge to the courts that the court may not have had.
determines a successful interest group
may not be 2 competing groups, financial resources, offensive or defensive position(defense more successful), status of the group in the eyes of the lawmakers.
Social science influences the courts by:
the use of quantitative social science data, the use of social scientists as an expert witness, and amicus curiae briefs.
social science controversies
S.S. is concerned with the prediction of future events while the law is concerned with fixing past events. they are not necessarily politically objective, they are more concerned with changing the future than preserving the past. and they have liberal tendencies. social scientists do not always agree
who are "the people"? the voters? the elite class?
involve reward for compliance, voting for constituents, voting for/creating ballot referenda, financial assistance for constituents or issues.
made on behalf of a particular group of people; may draw attention to issues in an attempt to create a direct influence. EX: street protests, boycotts, public interest groups, and media exposure.
why does the public exert their influence in ways other than voting?
sometimes voting is not enough, because of need, value struggles (laws conservative tendencies.)
less serious , more understandable. ex: turn yourself in, emotional duress.
makes it worse. ex: to kill a police officer or a child
how often it is wrong
can we KNOW the answer
have other people reviewed it
a law is written
if it becomes a law
if it's not passed then it is re-written
rule of 4
4 out of the 9 supreme court justices believe a case is important enough, then they will hear the appeal.
members of the legislature become specialists in the work of their respective committees
ensures that congress can deal with increasingly complex issues
informal rules and norms within the Senate and House
avoid personal attacks, willing to compromise and reciprocate through trading votes, legislators do nothing that will reflect adversely upon the integrity of Congress.
middle to upper class, higher than average income, predominately white male, typically married, well educated, most federal legislators are lawyers (over 50%) 20% of state legislators are lawyers
The Executive's (president, governors) 3 main functions
source of ideas for the program that legislative bodies consider (principle agenda items), Catalytic agents (strive to structure support for their programs, concerned with public opinion), instrument the law.
courts are available to all members of society
unlike other institutions, the courts are truly public, in principle
critics argue the courts...
now have so much power that they threaten the vitality of the system, judges may use due process and equal protection to justify making law rather than interpreting it.
how is the court organized?
characterized by dual hierarchies, federal and state cases are generally separate from each other. state court decisions that involve a question on Constitutionality or Federal Laws may be appealed at the US Supreme Court.
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