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18 Cards in this Set
1) Common Law
2) Model Penal Code
1) B-developed through judicial decisions.N- 3rd branch of gov't. aka case law. distinction btwn trial & appellate courts. in trial judge interprets and applies law
2) (MPC) general provisions on criminal liability, definitions, defenses and sentences. Is not a law in itself
3) "rule of law"; law, procedure is subordinate to principles of U.S. constitution. C. sets powers oovf gov't, powers and rights of individuals. limitations enforced by judicial review.
3) stare decisis
1) B- Executive Branch, executive orders or regulations of agencies. must be authorized by statute and "force of law" (2 types: seeking benefits or privileges & deprivation of privileges[licenses] this is called quasi-criminal).
2) B- statues- A general law enacted by legislature. ordinance- an enactment of local governing body aka city council or commission, animal control (city laws if u will)
3) N- "let the decisions stand", principle or doctrine that orgaqnizes the importance of precedent. All appellate courts follow prior decisions
Administrative Law is commonly agency rules & regulations authorized by statutes.
TRUE could be made false if it was authorized by someone else like legislative branch or something
1) F- Facts(who, what, where, when. App. cts select facts from trial. L- Law: statement of previous cases (precedent) I- Issues- legal issues, ? being asked by app. ct phrased by ct. R- Reasoning- apply law to facts resulting in rule(of law) D- Disposition- affirm[upheld], reverse[overturn], remand[send back to last ct]
2) N- Prior caselaw which governs interpretations of present cases.
3) is the law, new precedent written by 1 justices & others join (e.g. 5-4 vote) can only be 1 majority opinon
4) agree on disposition, but generally not on why (reasoning 5-1-3)
5) dissenting- disagree on dispostion, ruel & reasoning (minority)
6) where no majority (4-3-2) no new law but still a majority on disposition (4+3)
1) what is role of US Supreme Court?
A: Has jusrisdiction to review, either on appeal or by writ of certiorairi (discretionary review), all the decisions of the lower cts and high state cts. Final word in determining what the US. C requires, permits, and prohibits in the areas fo law enforecement, prosecution, adjdication, and punishment.
a. uphold lower court
b. most justices agree but no majority
c. prior app. case binding jurisdiction
1) Article III jurisdiction
2) Legal positivsm
3) Legal realism
4) Natual Law
1) U.S. gov't is a party; cases btwn states. Federal laws & interpretation of US constitution. diversity cases (cases where private parties are from different states e.g. car accident) US S ct is last resor and ruling is not always final.
2) Law as Doctrine- laws are rules & command to be followed, emphasized in study of law in judical decisions
3) Law as behavior- study of law examinin policy, socio-economic impact. judge bring backgrounds ect.
4) Law represents a higher law or justice- for some a moral force (God-given), traditionally, inalieable rights, may be simply ethical code
1) How can B of R apply to state if 14th says nor shall any state deprive any person f life, liberty or property.
2)two aspects of minimum national standards
1) A: With Doctrine of incorporation. Ceratin rights in B of R have been applied to the states thru the 14th am. due process clause(states inclue local gov'ts)
2)US S ct establishes minimum national standards in regard to rights
- states cannot be more restrictive of such individual rights (limit st. gov't)
- Congress also is bound by such standard (& thru legislation) can grant greater or more expansive rights to individuals (& thus, limiting gov't)
1. Freedom of religion, speech, and press. peaceful assembly.
2. Right to bear arms
(Here is my gun freeze!)
3. Soldiers get out, please.
(Soldiers get out please)
4. Where’s your warrant, please?
(Whereas your warrant, please?)
5. Don’t rat on yourself?
(Donut rat on yourself)
6. Right to a quick trial
(Right to a quick trial)
7. Jury trial in civil cases
(Jury trial in civil cases)
8. Cruel and unusual punishment. Don’t lock me in dark places
(Donut lock me in dark places!)
9. Powers of the people
(Powers of the people)
10. The states have rights too
(States have rights too)
11. Suits against states
(Suits against states)
12. Election of the Pres.
(Election of the Pres.)
13. Slavery is invalid
(Slavery is invalid)
14. Equal rights for all
(Equal rights for all)
15. All races get the ballot
(All races get the ballot)
16. Congress can take taxes
(Congress can take taxes)
17. We elect Senators too
(We elect Senators too)
18. Alcohol will kill you
(Alcohol will kill you)
19. Women vote like men do
(Women vote like men do)
20. Terms of office, Pres. and Congress
(Terms of office, Pres. and Congress)
21. We can drink now, WOW!
(We can drink now, WOW!)
22. Only 2 terms now
(Only two terms now)
23. DC’s got the vote
(DC’s got the vote)
24. Pay to vote no more
(Pay to vote no more)
25. If Bill dies, weave got Al.
(If Bill dies, weave got Al)
26. We can die, we can vote
(We can die, we can vote)
27. Congress wants more money
(Congress wants more money)
What are the 3 clauses that limit substantive law?
1) commerce clause- only limits federal gov't i.e. congress. fed. gov't authority extends to interstate commerce US v. Lopez (kid that brought gun to school)
2) Bill of Attainder- applies to fed. & state branch. punishment by leg. w/o trial of named or readily identifiable individual or group is prohibted. probg test define general principle
3) ex post facto law that has four parts
a. done before there was a law
b. if las aggravates a crime (makes worse)
c. punishment goes up on crime
d. if legal rules change of evidence
Define & Link to:
US v. Lopez
Gonzales v. Raich
unconstitutional per se
- Kid that brings gu to school. congress can only reulate that is interstae commerce. conviction reversed
- 2 women that grew pot for personal use. Fed can't regulate unless interstate. rejected the claim
- A statute that is unconstitutional under any circumstance. (law that restricts citizens' freedom to religion)
- A statute is invalid insofar as it is enforced in some particular context. (disorderly conduct but enforced to restrict or punish the exercise of constitutional rightsO)
Speech! alternative ways the courts examine expression/speech. regulation of time/place/manner
S- 3 types of speech that are protected
1) Pure Speech- message or content of words (TV, phone, books, radio, talk shows)
2) Speech Plus- plus conduct (picketing w/ signs, march w/ banners)
3) Symbolic speech- expressive conduct using visual message: pixs, even actions (wearing peace sign shirt; making peace sign w/ hand) To be constituational regulation must be reasonable- general guide for determing reasonableness is the greater the impact on content/message, the less likely the regulation will be reasonable.
Lewis v. New Orleans
Schenk v. US
Texas v. Johnson
- on profanity, law unconstituational Justice Powell stated expected higher degree of restraint from police.
- Draft cards I think it was constituational
- burning of flag at peaceful protest. unconstitutional
Form doctrines give more specific way to test for reasonableness: 1) public forum- traditional places (parks, sidewalks but needs permit) 2) limited public forum- open to public for limited use (after school, library, gov't meetings
3) non public forum- most gov't buildings (courthouse, gov't offices)
RAV v. City of St. Paul
Virginia v. Black
Miller v. California
Erie v. Pap
- Burning flag. Was not content neutral cuz directed @ particular messages
- burning cross. not content neutral. law upheld bu majority but was unconstitutioanl as applied to KKK rally cuz no intent to intimidate.
- mailed unsolicited material- found guilty because not artistic and obscence.
- pasties for strippers. S. ct reaffirmed ordinance saying they need to wear pasties and g strings.
aka 'olice powers'. If law/policy at issue is aimed at suppression of expression, the court uses strict and requires a compelling state interest. If law is content-neutral and intermediate test will be used requiring only that the state show an important inteest which is furthered by the law. Each has four factors
1) must be within police powers
2) must further imprtant (substantial gov't interest
3) which interest is unrelated to suppression of free expression
4) restriction must be not greater that essential to futher gov't interest
Speech that is not protected
1) libel (written) or slander (defamation)- falsehood that harms reputation
2) Obscenity- applies to 'works' involving sexual/ erotic content
3) Speech presenting a clear & present danger. shouting fire in a theater
4)Fighting words- like disorderly conduct.