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165 Cards in this Set
- Front
- Back
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Ch.1
What is the nature of law? |
The law is constantly changing because rules (law) must be balanced considering rights of individuals and rights of evolving society. |
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Ch.1
What is law? |
(1) Prediction of how a court will decide a legal question.
(2) Rule of civil conduct prescribed by the supreme power, commanding what is right, and prohibiting what is wrong. |
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Ch.1
What is the functions of law? |
(1) To resolve disputes (without personal revenge!)
(2) To protect property - ownership, transfer.
(3) To preserve the State (government) - change is ok as long as it is orderly and legally done. |
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Ch.1 Law and Morals:
(1) Is an action moral improper but legal? (examples?) 14 (2) Is an action illegal but not morally improper? (examples?) |
Law, not morals: drive on the right.
Law and morals: no kill.
Not law but morals: "You should not silently stand by and watch a blind man walk off a cliff."
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Ch. 1
What is duty? |
Legal obligation requiring a person to perform or refrain from performing an act. |
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Ch. 1
What is substantive law? |
Substantive law creates, defines, and regulates legal rights and duties. (What to do and not to do) |
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Ch. 1
What is procedural law? |
Procedural law sets forth rules of enforcing those rights that are created by the substantive law. (How to use substantive law) |
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Ch. 1
What is public law? |
(1) Substantive law branch
(2) Deals with the government's rights and powers and its relationship to individuals or groups
ps: government envolved law |
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Ch. 1
What is private law? |
(1) Substantive law branch
(2) Governing individuals and legal entities in their relationship with one another. |
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Ch. 1
What is civil law? |
(1) Civil law defines duties and deals with the rights and duties of individuals among themselves.
(2) Part of private law. |
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Ch. 1
What is criminal law? |
(1) Criminal law establishes duties and involves offenses against the whole community.
(2) Part of public law |
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Ch. 1
What is the purpose of civil law? |
(1) a. compensation b. deterrence |
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Ch. 1
What is civil law burden of proof?
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Preponderance of the evidence. |
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Ch. 1
What is civil law pricipal sanctions? |
(1) Monetary damages.
(2) Equitable remedies. |
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Ch. 1
What are pricipal forms of civil law relief? |
(1) judgement of $ (2) to perform a specified act (3) to desist from specified conduct. |
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Ch. 1
What is the purpose of criminal law? |
(1) a. punishment b. deterrence c. rehabilitation d. preservation of peace
(2) prosecute = to bring a criminal proceeding.
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Ch. 1
What is criminal law burden of proof? |
Beyond a reasonable doubt. |
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Ch. 1
What is criminal law pricipal sanctions? |
(1) Capital punishment
(2) Imprisonment
(3) Fines |
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Ch. 1
What is a constitution?
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A constitution, the fundamental law of particular level of government, establishes the governmental structure and allocates power among governmental levels, thereby defining political relationships. (book)
Constitutions set forth basic principles and limitations for a government. US Constitution is supreme law of the nation; State Constitution is the highest law within that state. (note) |
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Ch. 1
What are the two import element of the US. constitution? |
(1) Separation of powers - division of power among branches of government.
(2) Judicial review - power of courts to decided constitutionality of governmental action. |
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Ch. 1
What is common law? |
Common law is case decisions establish precedent in our common law system & must be consulted when researching a legal question. |
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Ch. 1
What is an adversary system? |
System in which opposing parties initiate and present their cases.
US legal system is a common law system. |
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Ch. 1
What is a civil law system? |
Body of law derived from Roman law and based upon comprehensive legislative enactments (coded) and an inquisitorial system of determining disputes. |
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Ch. 1
What is an inquisitorial system? |
System in which the judiciary initiates, conducts, and dicides cases. |
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Ch. 1
What is equity? |
Equity is judicial relief based on settled rules of fairness, justice, and honesty.
Remedies in equity include specific performance, injunctions, reformations, and rescission.
Remedies at law include money damages. Courts typically answer questions of both common law and equity. |
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Ch. 1
What is decree? |
Decree : decision of a court of equity. |
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Ch. 1
What is specific performance? |
decree ordering a party to perform a contractual duty. |
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Ch. 1
What is injunction? |
Injunction: decree ordering a party to do or refrain from doing a specified act. |
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Ch. 1
What is reformation? |
equitable remedy rewriting a contract to conform with the original intent of the contracting parties. |
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Ch. 1
What is rescission? |
an equitable remedy invalidating a contract. |
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Ch. 1
What is maxim? |
Maxim: a general legal principle. |
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Ch. 1
-Legislative Law
What is statutes? |
Statues passed by legislatures. Also, statutes can repeal judge-made laws unless unconstitutional. |
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Ch. 1
-Legislative Law
What is Uniform Laws? |
Uniform Laws have been passed to promote uniformity in some areas of the law.
ex. UCC (Uniform Commercial Code) |
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Ch. 1
-Legislative Law
What is Treaties? |
Treaties are agreements between or among independent nations. If signed by President and approved by Senate, it has the legal force of a federal statute. |
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Ch. 1
-Legislative Law
What is Executive Orders? |
Executive Orders: President has power to issue in limited situations and has effect of law. |
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Ch. 1
What is Administrative Law? |
(1) Branch of public law, governs powers and procedures of governmental entities (other than courts and legislatures)
(2) Frequently concerned with public health, safety, and welfare.
(3) Law is created by administrative agencies (ex. IRS) in forms of rules, requlations, and orders. |
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Ch. 1
Are trial court decisions published? |
Trial court decisions are generally not published. (just filed in records of court clerk) |
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Ch. 1
Are court of appeals decisions published? |
Court of appeals decisions are published in volumes, consecutively numbered, called 'reports' (or reporters)
Case cited with name of plaintiff and defendant, volume and page of reporter, and year of decision.
Example: Lefkowitz v. Great Minneapolis Surplus Stores, Inc., 251 Minn. 188,86 N.W. 2d 689 (1957) |
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Ch. 1
What is usually included in reported opinion? |
(1) Summary of essential facts and controversy, nature of the action, parties, what happened in lower court, and what pleadings are material.
(2) Issues of law or fact
(3) Legal principles involved.
(4) Application of these principles.
(5) Decision of the court. |
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Ch. 3
What are inferior trial courts?
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Court that hear minor criminal cases such as traffic offenses. |
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Ch. 3
Name 3 inferior courts in Texas. |
(1) Justice of Peace Court (JP court)
(2) Small Claim court
(3) Municipal court. |
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Ch. 3
Are records kept of the 3 inferior courts in Texas? |
No records recorded. |
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Ch. 3
If you lose in an inferior trial court, what can you do in Texas? |
Because of no records of proceedings, if lose, can 'appeal' by starting over in county of district court as a new case. |
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Ch. 3
What are the two main trial courts in Texas? |
(1) County trial court (limited)
(2) District trial court (No limit) |
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Ch. 3
Who normally decides questions of facts in trial court? |
Jury |
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Ch. 3
Who normally decides questions of law in trial court? |
Judge, (who represents the Court) |
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Ch. 3
If you lose at trial, to which court do you appeal? |
First, Courts of Appeals (in texas, 14 courts 80 justice)
Then, Criminal -> Texas Court of Criminal Appeal.
Civil -> Texas Supreme Court. -> if constitutional issue -> U.S. Supreme Court. -> if State law, Texas Supreme Court is the final words. |
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Ch. 3
What are the two highest appelate courts in Texas? |
(1) Texas Supreme Court (1 court 9 justices)
(2) Court of Criminal Appeals (1 court 9 judges) |
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Ch. 3
Who has the final word on issues of whether laws are constitutional? |
The U.S. Supreme Court. |
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Ch. 3
Generally speaking, can the appellate court disagree with the conclusions of the jury and change the verdict? |
Yes, the appellate court can judge on the verdict of jury. |
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Ch. 3
-Federal Court System
What is a District Court? |
Trial level of federal courts, every state has at least one. |
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Ch. 3
-Federal Court System
What is Court of Appeals |
(1) Consist of 12 judicial circuits across country.
(2) Hear appeals from District Courts - only decide questions of law, not facts.
(3) Usually 3 judges hear case.
(4) Can reverse, modify, remand, or affirm lower court.
(5) Decision affect its own territory. |
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Ch. 3
-Federal Court System
What is The U.S. Supreme Court? |
The highest court; generally reviews Federal appellate decisions and state supreme court decisions. |
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Ch. 3
-Federal Court System
What is Special Courts? |
Ex. U.S. Court of Claims, U.S. Bankruptcy Court, U.S. Tax Court.
Usually have exclusive federal jurisdiction for particular type of case. |
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Ch. 3
-State Court System
What is inferior trial court? |
JP courts, small claims courts, municipal courts
Tend to be more informal
No records of proceedings, so if lose, can 'appeal' by starting over in county or district court. |
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Ch. 3
-State Court System
What is Trial Court? |
Usually called County Court, District Court (other names also depending on state)
Very formal court proceedings.
Sometimes have specialized trial courts, such as only for family law matters or probate matters. |
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Ch. 3
-State Court System
What is Appellate Courts? |
Court of Appeals - Intermediate appellate courts review decisions of trial courts for errors in applying law.
Not in determining facts. |
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Ch. 3
-State Court System
What is Supreme Court of State? |
Also an appellate court. Reviews decisions of appellate courts.
The final word on matters of state law.
Texas has 2 supreme court: Texas Court of Criminal Appeals for criminal matters and Texas Supreme Court for civil matters. |
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Ch. 3
What is reverse |
Set aside the lower court's judgment. |
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Ch. 3
What is modify |
Change the lower court's judgment. |
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Ch. 3
What is remand? |
Send the case back to the lower court. |
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Ch. 3
What is affirm |
Uphold the lower court's judgment. |
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Ch. 3
What is the Appeal by Right? |
Appeal by right is the mandatory review by a higher court.
The court must hear these cases if one of the parties requests.
In 1988, Congress almost completely eliminated the right to appeal to the U.S. Supreme Court. |
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Ch. 3
What is Writ of certiorari? |
Discretionary review by a higher court.
Now almost all cases reaching the Supreme Court come to it by means of writs of certiorari. |
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Ch. 3
What is Jurisdiction? |
Jurisdiction - authority of a particular court to hear a case and render a decision that will be binding on the parties involved. |
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Ch. 3
What are the 2 type of jurisdiction that a court must have to solve a law suit? |
(1) Jurisdiction over subject matter - what is the dispution about and will the case be tried in federal or state court?
(2) Jurisdiction over parties - will the judgment of the court be binding on the parties? (who involved) |
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Ch. 3
What is exclusive federal jurisdiction?
(on test) |
If only a federal court can decide controversy, then have exclusive federal jurisdiction.
ex. federal crimes admiralty bankruptcy anitrust patent trademark copyright lawsuits vs. U.S. lawsuits based on some federal laws that specify only federal court jurisdiction. |
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Ch. 3
What is concurrent federal jurisdiction |
Authority of federal or state courts to hear the same case. |
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Ch. 3
What are the 2 type of concurrent federal jurisdiction?
(must know) |
(1) A federal question over which the federal courts do not have exclusive jurisdiction.
(2) A civil suit where there is diversity of citizenship(no overlap) and the amount in controversy exceeds $75,000. |
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Ch. 3
What is a federal question? |
(1) any case arising under the Constitution, statutes, or treaties of the U.S.
(2)No minimum dollar requirement in federal question case.
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Ch. 3
What is a concurrent federal question? |
(1) A federal question over which the federal courts do not have exclusive jurisdiction.
(2) When a state court hears a concurrent federal question case, it applies federal substantive law but its own procedural rules. |
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Ch. 3
What is diversity of citizenship? |
(1) all plaintiffs' citizenships are different from defendants.
(2) Totally no overlap between plaintiffs and defendants' citizenships.
(3) When a foreign country brings an action against citizens of the U.S.
(4) When the controversy is between citizens of a state and citizens of a foreign country. |
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Ch. 3
What law is applied when a federal court hear a concurrent non federal case (diversity of citizenship & amount > $75,000) |
Apply state substantive law according to the conflict of law rules. But federal procedural rules. |
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Ch. 3
Can defendant remove a case of concurrent jurisdiction case to federal court? |
Case can be "removed" by defendant to federal court if plaintiff files in state court in any concurrent jurisdiction situation.
(to avoid home court advantage for plaintiff.) |
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Ch. 3
What is exclusive state jurisdiction? |
All other matters not granted to federal courts in Constitution or by Congress.
ex. diversity of citizenship but amount in controversy under $75,000, torts, contracts, state crimes |
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Ch. 3
What is stare decisis? |
Principle that courts should apply rules decided in prior cases in deciding substantially similar cases. |
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Ch. 3
How does stare decisis work? |
1) The U.S. Supreme Court has never held itself to be bound by its own decisions.
2) Federal question decisions of The U.S. Supreme Court are binding on all other courts, state and federal.
3) Federal question decisions of federal courts other than the U.S. Supreme Court are not binding on state courts.
4) In federal courts, cases based on diversity of citizenship apply state law as determined by the highest state tribunal.
5) Decisions of the federal courts other than the U.S. Supreme Court are not binding to other federal courts, unless them owe obedience to the deciding court.
6) A decision of a state court is binding on all courts inferior to it in its jurisdiction.
7) A decision of a state court is not binding on courts in another state except in cases in which the latter courts are required, under their conflict of laws rules, to apply the law of the first state as determined by the highest court in that state. If a TX court is required to apply TN law, it must follow decisions of the TN Supreme Court.
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Ch. 3
The venn diagram of Jurisdiction? |
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Ch. 3
Subject matter jurisdiction table |
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Ch. 3
What is jurisdiction over the parties? |
Power of a court to bind the parties to a suit.
Plaintiff is automatically under jurisdiction of court when he files petition - we are generally concerned with how to get jurisdiction over the defendant. |
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Ch. 3
What are the type of jurisdiction requirement with respect to the defendant? |
With respect to the defendant, a court may meet the requirements of this type of jurisdiction in any of three ways:
(1) inpersonam jurisdiction (2) in rem jurisdiction (3) attachment jurisdiction
in addition, the exercise of jurisdiction must satisfy the constitutionally imposed requirements of reasonable notification and a reasonable opportunity to be heard. |
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Ch. 3
What is in personam jurisdiction? |
Based on claims against a person, in contrast to jurisdiction over property.
Usually obtain by serving process over person in state, by either domicile or temporarily present, Can also be by consent (ie. in a contract) |
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Ch. 3
How a court obtains in personam juristiction over a defendant? |
(1) by serving process on the party within the state in which the court is located.
(2) by reasonable notification to a party outside the state in those instances where a 'long-arm statute' applies.
resident temporarily present party's consent (ie. contract) long-arm statute. |
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Ch. 3
What is serve process? |
To serve process means to deliver a summons, which is an order to respond to a complaint lodged against a party. |
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Ch. 3
What is long-arm statute? |
Long-arm statutes are state laws that allow personal jurisdiction over non-resident defendants as long as "does not offend traditional notions of fair play and substantial justice."
Basically follow S Ct decisions of what are minimum contacts.
if the defendant:
(1) has commited a tort
(2) owns property within the state and if that property is the subject matter of the lawsuit.
(3) has entered into a contract within the state
(4) has transacted business within the state and if that business is the subject matter of the lawsuit. |
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Ch. 3
What is in rem jurisdiction? |
Jurisdiction is based on claims against property.
ex. dispute over ownership of real property located in Texas. |
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Ch. 3
What is Quasi in rem jurisdiction, or attachment jurisdiction? |
Jurisdiction over property not based on claims against it.
ex. property seized to satisfy unrelated claim or lawsuit. |
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Ch. 3
What is Venue (犯罪地点) |
Venue refers to a particular geograohical place where a court with jurisdiction may hear a case.
ex. state district court culd obtain personal jurisdiction over alleged criminal (ie. domiciled within state), and would have subject matter jurisdiction (state criminal laws).
Which state court can hear the case is geographically decided. |
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Ch. 3
What is included in Juristiction of parties? |
(1) in personam jurisdiction
(2) In rem jurisdiction
(3) Attachment, or quasi in rem, jurisdiction |
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Ch. 3
What is included in Juristiction of subject matter |
(1) Exclusive federal jurisdiction
(2) Concurrent (federal) jurisdiction
(3) Exclusive state jurisdiction |
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Ch. 3
Chart of jurisdiction |
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Ch. 3
What is pleadings? |
Pleadings - series of responsive, formal, written statements by each side to a lawsuit.
Plaintiff - petition or complaint, sets out who are the parties and why he is suing; also contains info showing why the court has jurisdiction.
Defendant - answer or reply; generally denying liability. |
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Ch. 3
What is summons |
service of process informing person of lawsuit. |
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Ch. 3
What is default judgement |
once served lawsuit papers, defendant must timely answer or he will lose without ever having his day in court. |
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Ch. 3
What is demurrer? |
motion to dismiss for failure to state a claim. |
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Ch. 3
What is answer? |
Defendant's pleading in response to the plaintiff's complaint. |
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Ch. 3
What is reply? |
Plaintiff's pleading in response to the defendant's answer. |
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Ch. 3
What is pretrial procedure? |
process requiring the parties to disclose what evidence is available to prove the disputed facts.
designed to encourage settlement of cases or to make the trial more efficient. |
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Ch. 3
What is judgment on the pleadings? |
judge decides case (applies law) just based on facts alleged in pleadings |
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Ch. 3
What is discovery in pretrial procedure? |
very important, must do to develop case, includes:
(1) deposition - can be used at trial just like live testimony.
(2) Written interrogatories - questions and answers
(3) Requests for production (of documents)
(4) Requests for admissions (of facts) - true or false of fact. - is tru that your name is Hao?
(5) Occasionally court ordered examination by physician. |
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Ch. 3
What is depositions? (important) |
sworn testimony, taken out of court, of the opposing party or other witnesses. |
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Ch. 3
What is pretrial conference? |
To narrow issues to be covered at trial;
may be to settle |
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Ch. 3
What is summary judgment? |
Judge decides case because facts are not disputed. (See Parker case in book pg55.)
Binding determinations on the merits made by the judge before trial. |
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Ch. 3
What is the procedures of pretial? |
(1) judgment on the pleadings
(2) discovery
(3) pretrial conference
(4) summary judgment |
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Ch. 3
What is Voir Dire
(important) |
examination of jurors; question them for bias against your party. |
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Ch. 3
What is opening statements |
factual outline of case so jury will understant witness' testimony |
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Ch. 3
What is direct examination? |
testimony by witness when questioned by attorney using him. |
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Ch. 3
What is cross-examination |
opposing attorney questions adverse witnesses.
judge rules throughout trial on objections to questions, admissibility of evidence, etc. |
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Ch. 3
What is closing arguments |
attorneys summarize strong points of their case and point out weaknesses in opposing case
to convince the jury. |
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Ch. 3
What is directed verdict? |
Judge decides case before jury verdict. |
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Ch. 3
What is jury instructions? |
has definition and series of questions for jury to answer?
ex. do you think defendant is guity? what amount of $? |
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Ch. 3
What is verdict? |
formal decision by jury |
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Ch. 3
What is motions challenging verdict? |
Motion for new trial;
Motion for judgment Not-with-standing the verdict. |
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What are the elements of a trial? |
(1) Voir Dire (2) Opening statements (3) Direct examination (4) Cross-examination (5) Closing arguments (6) Direct verdict (7) Jury instructions (8) Verdict (9) Motion challenging verdict |
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Ch. 3
What can do at post trial? |
Appeal - ONLY questions of law can be appealed.
Facts are decided by a jury (or possibly a judge in a bench-trial) and are not subject to appeal. |
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Ch. 3
What are alternative dispute resolutions to a trial? |
Usually cheaper and faster alternative to trial
(1) Arbitration - binding decision by independent arbirator - business way, not personal emotion, if arbitration never court again.
(2) Conciliation - non-binding decision, third party tries to help parties settle dispute.
(3) Mediation - non-binding decision, mediator suggests ways to settle dispute. |
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Ch. 3-1 On June 15 a newspaper columnist predicted that the coast of State X would be flooded on the following September 1. Relying on this pronouncement, Gullible quit his job and sold his property at a loss so as not to be financially ruined. When the flooding did not occur, Gullible sued the columnist in a State X court for damages. The court dismissed the case for failure to state a cause of action under applicable statelaw. On appeal, the State X Supreme Court upheld the lower court. Three months after this ruling the State Y Supreme Court heard an appeal in which a lower court had ruled that a reader could sue a columnist for falsely predicting flooding.
Whether must the State Y Supreme Court follow the ruling of the State X Supreme Court as a matter of stare decisis? |
A |
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Ch. 3-1 On June 15 a newspaper columnist predicted that the coast of State X would be flooded on the following September 1. Relying on this pronouncement, Gullible quit his job and sold his property at a loss so as not to be financially ruined. When the flooding did not occur, Gullible sued the columnist in a State X court for damages. The court dismissed the case for failure to state a cause of action under applicable statelaw. On appeal, the State X Supreme Court upheld the lower court. Three months after this ruling the State Y Supreme Court heard an appeal in which a lower court had ruled that a reader could sue a columnist for falsely predicting flooding.
Should the State Y lower court have followed the ruling of the State X Supreme Court until the State Y Supreme Court issued a ruling on the issue? |
A: |
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Ch. 3-1 On June 15 a newspaper columnist predicted that the coast of State X would be flooded on the following September 1. Relying on this pronouncement, Gullible quit his job and sold his property at a loss so as not to be financially ruined. When the flooding did not occur, Gullible sued the columnist in a State X court for damages. The court dismissed the case for failure to state a cause of action under applicable statelaw. On appeal, the State X Supreme Court upheld the lower court. Three months after this ruling the State Y Supreme Court heard an appeal in which a lower court had ruled that a reader could sue a columnist for falsely predicting flooding.
Once the State X supreme Court issued its ruling, could the U.S. Supreme Court overrule the State X Supreme Court? |
A |
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Ch. 3-1 On June 15 a newspaper columnist predicted that the coast of State X would be flooded on the following September 1. Relying on this pronouncement, Gullible quit his job and sold his property at a loss so as not to be financially ruined. When the flooding did not occur, Gullible sued the columnist in a State X court for damages. The court dismissed the case for failure to state a cause of action under applicable statelaw. On appeal, the State X Supreme Court upheld the lower court. Three months after this ruling the State Y Supreme Court heard an appeal in which a lower court had ruled that a reader could sue a columnist for falsely predicting flooding.
If the State Y Supreme Court and the State X Supreme Court rule in exactly opposite ways, must the U.S. Supreme court resolve the conflict between the two courts? |
A |
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Ch. 3-2 State Senator Bowdler convinced the legislature of State Z to pass a law requiring all professors to submit their class notes and transparencies to a board of censors to be sure that no 'lewd' materials were presented to students at state universities. Professor Rabelais would like to challenge this law as being violative of his First Amendment rights under the U.S. Constitution.
a. May professor Rabelais challenge this law in State Z courts?
b. May professor Rabelais challenge this law in a federal district court? |
a.
b. |
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Ch. 3-3 While driving his car in Virginia, Carl, a resident of North Carolina, struck Butt, a resident of Alaska. As a result of the accident, Butt suffered more than $80,000 in medical expenses. Butt would like to know if he personally serves the proper paper to Carl whether he can obtain jurisdiction against Carl for damages in the following courts?
1-Alaska state trial court 2-Federal Circuit Court of Appeals for the Ninth Circuit (includes Alaska) 3-Virginia state trial court 4-Virginia federal district court 5-Federal Circuit Court of Appeals for the Fourth Circuit (includes Virginia and N. Carolina) 6-Virginia equity court 7-N. Carolina state trial court. |
1- 2- 3- 4- 5- 6- 7- |
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Ch. 3-4Sam, a resident of Kansas, and Nellie, a resident of Missouri, each bought $85,000 in stock at local offices in their home states from Evil Stockbrokers, Inc, a business incorporated in Delaware with its principal place of business in Kansas. Both Sam and Nellie believe that they were cheated by Evil and would like to sue it for fraud.
Assuming that no federal question is at issue, assess the accuracy of the following statement.
a. Sam can sue Evil in a Kansas state trial court.
b. Sam can sue Evil in a federal district court in Kansas.
c. Nellie can sue Evil in a Missouri state trial court.
d. Nellie can sue Evil in a federal district court in Missouri. |
a. b. c. d. |
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Ch. 3-5 The Supreme Court of State A ruled that , under the law of State A, pit bull owners must either keep their dogs fenced or pay damages to any one bitten by the dogs.
Assess the accuracy of the following statements.
1- it is likely that the U>S> Supreme COurt would issue a writ of certiorari in the pit bull case.
2- if a case similar to the pit bull case were to come before the Supreme Court of state B in the future, the doctrine of stare decisis woulf leave the court no choice but to rule the same way as the Supreme Court of State A ruled in the pit bull case. |
1- 2- |
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Ch. 3-6 The Supreme Court of State G decided that the U.S. Constitution requires professors to warn students of their right to remain silent before questioning the students about cheating.
This ruling directly conflicts with a decision of the Federal Court of Appeals for the circuit that includes State G.
a- Must the Federal Circuit Court of Appeals withdraw its ruling?
b- Must the Supreme Court of State G withdraw its ruling? |
a- b- |
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Ch. 4
What is federalism? |
Federalism - division of governing power between federal government & state.
If the power is not specifically given to the gederal government, it is reserved for the state.
Federal government is restricted to enumerated powers, but they are broadly interpreted.
et. regulation of interstate and foreign commerce; expanded by "necessary & proper" clause. |
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Ch. 4
What is federal supremacy? |
Federal supremacy - valid federal laws (constitution, statutes) take precedence over conflicting state or local law. |
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What is federal preemption? |
Federal preemption (overrides any conflicting state legislation)
- right of federal government to regulate matters within its power to the exclusion of regulation by states.
Express - statute specific states; Implied - danger of potential conflict.
If federal statute NOT intended to displace all state legislation, then states can also pass laws. (case on book) |
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What is judicial review? |
power of the courts to determine the constitutionality of any legislative or executive act.
Examination of governmental action to determine whether it conforms to US constitution.
Not specific in constitution, but courts would have to decide whether to follow constitution or a statute that was not in compliance with constitution. ex. free speech.
Thus, "judicial review" of constitutionality of statutes available since 1803. |
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What is separation of powers? |
allocation of powers among executive, legislative, and judicial branches. |
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Chart of separation of powers. |
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What is state action? (on test) |
(1) act by governments as opposed to act taken by private individuals
(2) constitutional provisions apply to actions of governments.
(3) only 13th Amendment abolishing slavery applies to private individuals. |
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What are features of government power? |
1 - Some powers are concurrent (both state and federal govn have) ex. police power, taxation and spending.
2 - Exclusive powers are enumerated in Constitution(Appendix 3) + 10th Amd - all else reserved for states.
3 - All legislation must be based on power granted or "necessary & proper" clause. |
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What is federal commerce power? |
Federal commerce power - exclusive and very broad power of federal government to regulate commerce with other nation & among states. |
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What is state regulation of commerce? |
State regulation of commerce - commerce clause also restricts states' power to regulate activities if result obstructs interstate commerce.
Court balances interests, importance, necessity, burden, discriminatory effect favoring 'local' concerns, and will strike down state law if excessive burden on interstate commerce.
Will uphold state law restricting interstate commerce ONLY if no other reasonable method to achieve legitimate state interest. (Chemical Waste case) |
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What are effects of the federal commerce power clause? |
(1) provides a broad source of commerce power for federal government to regulate the economy
(2) restricts state requlations that obstruct or unduly burden interstate commerce. |
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What can Congress requlate under the federal commerce power clause? |
(1) the channels of interstate commerce
(2) the instrumentalities of interstate commerce
(3) those activities having a sbstantial relation to interstate commerce. |
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What legislation enacted under the Commerce Clause can court invalidate ? |
(1) legislation does not affect interstate commerce
(2) no reasonable connection exists between the selected regulatory means and the stated ends. |
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What is federal power of taxation & spending? |
Federal government can use to regulate economy
Congress holds the purse strings so can indirectly compel state action (seat belts) |
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What is federal power of borrowing and coining money? |
Federal government can establish national banking system.
Also to control national fiscal power. |
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What is federal power of eminent domain |
Government can take private property for public purpose (which now includes shopping centers by private developers) but must pay "just compensation." |
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What are federal fiscal powers? |
1 - Taxation 2 - Spending 3 - Borrowing and coining money 4 - Eminent domain |
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What is Limitation on government? |
Governmental actions that encroach upon constitutionally protected rights are examined to determine if permissble using 1 of 3 tests, depending on right involved. |
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What is rational relationship test? |
the regulation must bear a rational relation to a legitimate governmental interest;
used for economic regulation.
Courts will presume action is ok. |
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What is strict scrutiny test? |
requirement that regulation be necessary to promote a compelling governmental interset;
used for fundamental rights (those in Constitution, Bill of Rights, and others) and suspect classifications (race, national origin) |
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What is intermediate test? |
requirement that regulation have a substantial relationship to an important governmental objective;
used for gender & legitimacy |
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What are the 3 tests of limitation on government? |
(1) Rational relationship
(2) Strict scrutiny
(3) Intermediate |
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Chart of limitation on government tests. |
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What is contract clause? |
Restricts states from retroactively modifying contracts (Art. 1 Sec.10)
"No state shall...pass any...law impairing the obligation of contracts"
But Contract clasuse does not preclude the states from exercising eminent domain or their police rules.
"No legislature can bargain away the public health or the public morals." |
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What is Freedom of speech? |
1st Amendment protects most speech;
Strict scrutiny standard. (ex. obscenity no protection) |
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What is free speech of corporate political speech |
1st Amendment protects a corporation's right to speak out on political issues. |
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What is commercial speech? |
expression related to the economic interests of the speaker and his audience. |
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What is defamation? |
injury of a person's reputation by publication of false statement. |
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What is due process? |
5th & 14th Amendments
must have due process of law before deprive person of life, liberty, or property
Substantive - is government action compatible with individual liberties? is the action (statute) constitutional? Law affects all citizens so not Equal Proctection challenge.
Procedural - if proposed action will deprive person of life, liberty, or property, must have faire & impartial decision making process. Generally requires person must be given notice & an opportunity to be heard before action taken. The greater the loss that a person will suffer, the more 'process' he will be due. |
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What is equal protection? |
14th Amendment requires all persons equal protection of the law;
"similarly situated" persons must be treated equally by govt actions. |
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What are tests for equal protection? |
(1) Rational relationship -used for economic regulation
(2) Intermediate -used for gender & legitimacy
(3) Strict scrutiny -used for fundamental rights or suspect classification
Brown vs. Board of Education of Topeka case |
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What is the Brown vs. Board of Education of Topeka about? |
Facts: Black minors sought court order to obtain admission to the public schools in their community on a non-segregated basis. The Supreme Court had uphold "separate but equal" previously.
Decision: Judgment for plaintiffs
Opinion: Tangible factors may be equal, but effectss of "their hearts and minds in a way unlikely ever to be undone." |
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What is in the Constitution Article 1 section 8? |
law power to congress.
Imply: When congress create a law, it must point out where the constitution allows it to do so. |
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What is in the Constitution Article 6? |
Federal power -> supreme State power -> inferior |
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Bill of rights
Which group believe in strong local government in constitution creation? |
The anti-federalists, including Thomas Jefferson, Patrick Henry and George Mason. |
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Bill of rights
Who is the father of the constitution? |
James Madison |
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Bill of rights
What addition to the constitution did George Mason suggest? |
Mason suggests that we shall have a bill of right |
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The first amendments were primarily to protect citizens from actions by who? |
Government, originally federal government. |
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How many amedements were initially submitted to Congress by Madison?
and how many actually became the Bill of Rights? |
Submitted 19, 10 became the Bill of rights. |
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Chart of alternative dispute resolution |
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