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20 Cards in this Set
- Front
- Back
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5 Sources of Law |
1. Common Law 2. Equity Law 3. Statutory Law 4. Constitutional Law (federal and state) 5. Executive orders and administrative rules
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What is common law? |
Common law is the law created when courts base decisions on precedent rulings from other courts. In common law, higher court ruling requires lower courts to follow their precedent.
**Fundamental to common law is the concept that judges should look to the past and follow earlier court rulings, called precedents. |
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What is statutory law? |
Statutory law is "book law" and consists of laws passed by Congress or State legislatures. |
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What is constitutional law? |
Law created by US or State constitutions. |
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What are executive orders and administrative rules? |
Executive orders and administrative rules are the law that is created by governmental orders from state or national executive branch. Administrative rulings are laws issues by various government organizations.
**Orders of elected officials or rules generated by government agencies. |
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Define "Stare decisis". |
Stare decisis means "let the decision stand". It is a fundamental concept for common law. It implies that judge should resolve current problems in the same manner as similar problems were resolved in the past (i.e. using precedent).
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What is equity law? |
Equity law is the law created by judicial decrees. These decrees are issued by judges to remed an unequal/unfair situation or verdict issued by jury. |
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Four options for handling precedent |
1. Accept/Follow Precedent 2. Modify/Update Precedent (modify precedent to comply with contemporary sensibilities and circumstances) 3. Distinguish (precedent doesn't apply b/c 2 cases are dealing with different problems) 4. Overrule Precedent (prior decision wrong and no longer law) |
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Supremacy of Constitutional Law |
Decisions by the Supreme Court of the US regarding the US Constitution and federal laws are binding on all federal and state courts.
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Differences between equity and common law |
Judges are free to do what they think is fair and right in equity law whereas judges are more bound to precedent in common law.
Equity law comes in the form of judicial decrees and can be preventative or remedial.
A court is permitted under equity law to restrain an individual or corporation or even a government from taking an action by issuing a judicial decree such as an injunction. Under common law a court can attempt to compensate the injured party only for the damage that results from the action. |
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Differences between statutory and common law |
Statutes tend to deal with problems affecting society or large groups of people, in contrast to common law, which usually deals with smaller, individual problems.
Statutory law can anticipate problems and common law cannot.
Criminal laws in the US are all statutory; common-law crimes n longer exist in this country.
Statutory law is collected in codes and law books, instead of in reports. |
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Void for Vagueness Doctrine |
A law will be declared unconstitutional (unconstitutionally vague) 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. |
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Overbreadth Doctrine |
A law is overbroad (and therefore unconstitutional) if it does not aim only at problems within the allowable area of legitimate government control but also sweeps within its scope other activities that constitute an exercise of protected expression. **Encompasses far more protected speech than necessary to achieve aim. |
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Supremacy of Constitutional Law |
No other law (equity, statutory, common or exec/admin) can conflict with the provisions of the constitution.
State constitution can provide more rights to a citizen but cannot rollback the rights protected by US constitution.
Supreme law of the land; any law or other constitution that conflicts with the US Constitution is unenforceable. A state constitution plays the same role for a state: any state statute passed by leg that conflicts with that states constitution is unenforceable. |
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How does exec/admin laws differ? |
Admin rules usually deal with technical and complicated matters requiring levels of expertise that members of traditional leg bodies do not normally possess.
Their tasks are narrowly defined and their rulings, while they carry the force of the law, can always be appealed. |
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Civil Vs. Criminal Cases |
A civil suit is normally a dispute between two private parties in which the government offers its courts to resolve the dispute. The person who initiates the civil suit is the plaintiff; the person at who the suit is aimed is the defendant.
A criminal prosecution is an action in which the state brings charges against a private individual (the defendant). |
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Role of the trial courts vs. role of the appellate courts |
Trial courts are fact-finding courts. Trial courts are the courts of first instance, the place where nearly all cases begin. Juries sometimes sit in trial courts (a trial held before judge w/ no jury is a bench trial). Trial courts consider both fact and law.
Appellate courts are law-reviewing courts. Juries never sit in appellate courts. Appellate courts ONLY consider the law. |
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Role of federal courts |
Include: Supreme Court, US Courts of Appeals, US District Courts and several specialized tribunals.
Have jurisdiction in all cases that involve the US Constitution, US law and US treaties; in disputes between citizens of different states; cases that involve ambassadors of foreign countries, cases that involve admiralty and maritime law, cases that involve the US as a party to the suit |
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Role of state courts in matters involving citizens of same state |
State courts generally have jurisdiction in all disputes between citizens of their state that involve the state constitution or state law. |
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Judicial Review |
Judicial review is the right of any court to declare any law or official governmental action invalid because it violates a constitutional provision.
Power of a court to declare a statute, regulation or executive action to be a violation of the Constitution and thus invalid.
Because the First Amendment guarantees the rights of freedom of speech and press, all government actions that relate tot he communication of ideas and information face potential scrutiny by courts to determine their validity.
Courts have the right in fact have the duty, to nullify laws and executive actions and administrative rulings that do not meet the standards of the First Amendment. |
