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28 Cards in this Set
- Front
- Back
Functions of the Constitution
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1) set up the structure of government for the political unit they control - involves creating the branches and subdivisions of the government and stating powers given and denied to each
2) prevents other units of government from taking certain actions or passing certain laws - does so by prohibiting government actions that restricts certain individual rights |
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Statutes
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laws created by elected representatives in Congress or a state legislature - stated in an authoritative form in statute books or codes
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Uniform acts
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model statutes drafted by private bodies of lawyers and/or scholars - do not become law until a legislature enacts them
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Common Law
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aw made and applied by judges as they decide cases no governed by statutes or other types of law - exists only at state level - both state and federal courts become involved in applying it
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Precedent
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following the decisions of other judges in similar cases - stare decisis: let the decision stand
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Restatements
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collections of common law rules covering various areas of law - not law and not binding - arguments are often found persuasive
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Equity
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provide several remedies not available in the common law courts
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Injunction (equity)
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court order forbidding a party to do some act of commanding him to perform some act
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specific performance (equity)
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a party is ordered to perform according to the terms of a contract
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reformation (equity)
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court rewrites the contract's term to reflect party's real intentions
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rescission(equity)
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cancellation of a contract in which the parties are returned to their pre-contractual position
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Administrative regulations and decisions
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administrative agencies obtain the ability to make law through a delegation of power form the legislature
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Treaties
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according the Constitution "the supreme law of the land"
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Ordinances
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enactments of counties and municipalities - example: zoning ordinances
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Executive orders
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power of President or a state's governor to make law - usually results from a legislative delegation
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Priority Rules
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1. US Constitution/treaties
2. State, etc constitutions 3. treaty vs federal statute=most recent 4. statues>conflicting laws 5. laws from statutes>inconsistencies |
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Criminal Law
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gov't prosecutes someone for committing a crime
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Civil Law
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private parties prosecute
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Substantive Law
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sets rights and duties of people as they act in society
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Procedural Law
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controls behavior of govt bodies as they establish and enforce substantive law
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Public Law
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concerns the powers of government and the relations between government and private parties
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Private Law
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establishes a framework of legal rules that enables parties to set the rights and duties they owe each other - examples: rules of contract and property
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Functions of law
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1) peacekeeping
2) checking government power and promoting personal freedom 3) facilitating planning and the realization of reasonable expectations 4) promoting economic growth through free competition 5) promoting social justice - government has intervened in private social and economic affairs to correct perceived injustices and give all citizens equal access to life's basic goods 6) protecting the environment |
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Case law reasoning
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courts find appropriate legal rules in precedents - follow stare decisis - if no precedent is applicable court is free to develop a new common law rule to govern the case
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Statutory interpretation
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not easy to interpret - becomes more difficult when applying them to situations the legislature did not foresee
uses: 1. plain meaning 2. legislative history/purpose 3. general public purpose 4. prior interpretations |
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Maxims
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general rules of thumb employed in statutory interpretation - ejusdem generis: when general words follow words of a specific, limited meaning, the general language should be limited to those things of the same class as those specifically stated
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Limits on the power of courts
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respect for established precedent - fear of innovation because of higher courts overturning - political factors such as election or removal - standing to sue: plaintiff must have some direct, tangible and substantial stake in the outcome of the litigation
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Declaratory judgement
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allows parties to determine their rights and duties even though their controversy has not advanced to the point where harm has occurred and legal relief may be necessary
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