Law And Society Midterm

Front 1

Positivism:

Back 1

law is best conceived of in scientific and objective terms and is empirically discovered by reason and free from moral judgments about what law should be.

Front 2

Austin's Positivism:

Back 2

law is solely command of sovereign backed by a sanction

Front 3

Hart's Positivism:

Back 3

law is a set of rules established by social convention, 2 categories primary and secondary

Front 4

Primary/Secondary Rules

Back 4

Primary: create legal duties that lay down the legal guidelines for a social contract, such as criminal law - specifically forbids
Secondary: procedural rules that confer power - confer to Congress ability to make legislature, wills

Front 5

How Legal Precedents Limit Outcomes:

Back 5

promote stability and order, hard to change since decision has already been reasoned out, prevent arbitrary decisions (narrow down possible outcomes)

Front 6

How Legal Precedents Do Not Limit Outcomes:

Back 6

to continue past practices is to provide a new official in his inexperience with the accumulated experience of his predecessors., must look at changing times and laws

Front 7

Strict Precedent:

Back 7

without allowing any information judge pushes personal feelings aside and makes his judgment based solely on facts/words (living, breathing) of precedent - deductive

Front 8

Loose Precedent:

Back 8

judge may already determine decision before even hearing the case, doesn't care about specific facts of case (nourishing) - inductive

Front 9

Civil Litigation:

Back 9

The rules governing the process by which civil suits are brought to court and resolved:

Front 10

Civil Litigation Steps:

Back 10

Starts with injury, then filing of civil action (in court against defendant), then discovery process (gathering evidence), pretrial conference, trial, judgment

Front 11

Differences between Civil and Criminal:

Back 11

Initated by person/state, only economic punishment, no jury trials, No entitlement to public defendant, must pay own counsel fee, Plaintiff/Prosecution, ‘on the balance of probabilities’ vs ‘beyond reasonable doubt’

Front 12

Adversarial Legal System

Back 12

• Adversarial: ours, 2 opposing parties each represented by an ‘advocate’ who argue their side of the story in front of an impartial judge/jury/both.

Front 13

Inquisitive Legal System

Back 13

• Inquisitive: judge and jury work together in discovering the details of the present case and making a decision from them.
no plea bargains

Front 14

Common Law:

Back 14

made by judges in cases, precedents established, judges can declare law based on precedent

Front 15

Statutory law/public law:

Back 15

enacted by popular assemblies (legislature), and is the major source of law. The Americans with Disabilities act (1990), an stature designed to protect disabled persons from employment discrimination is an example. They are drafted in general language, they are often ambiguous and require administrative and judicial interpretation.

Front 16

Constitutional Law:

Back 16

constitutional rights, duties, and obligations are given final effect by the supreme court.

Front 17

Administrative law:

Back 17

made by agencies/bureacracies that are given power by legislature to make laws for their area, such as EPA. Key sources of primary law because they are empowered to promulgate administrative regulations.

Front 18

Appelate Courts:

Back 18

decide issues of law: what the law is/should be. Mainly correct errors commited by lower courts.

Front 19

Trial Courts of General Jurisdiction:

Back 19

Deal with any type of case not specified to another court.. Federal = District Courts
Each State also has these; e.g. florida circut courts

Front 20

Trial Courts of Specific Jurisdiction

Back 20

authorized to hear only specific cases (juvenile, probate etc..)

Front 21

Trial Court Procedure:

Back 21

evidence and testimony admitted under rules of evidence establsihed by procedural law, presided over by judges and often jury.

Front 22

Differences between Trial and Appelate:

Back 22

cases heard for first time, only affect people involved, 2 sides present evidence ///// affects large number of people, binding on court districts, no new evidence presented.

Front 23

How precedents developed in domestic violence...

Back 23

from temporary pain to husband has power over wife. Then precedent used of temporary pain to beating of wife. Next case applies precedent of ownership. Next, the presence of weapons and death threat, found guilty on basis of NOT temporary pain. Finally precedent abandoned and husband found guilty for beating wife.

Front 24

Butterfield v Forrestor FACTS/RULING

Back 24

Sued for falling off hourse after colliding with pole. Plaintiff riding to quickly, had he not been would have seen pole.

Front 25

Butterfield v Forrestor SIGNIFICANCE

Back 25

First apperance of contribuory negligence used as a common law defense against negligence: established as legitimate a defense based on the idea that the plaintiff himself caused the damage which he is accusing another of

Front 26

Holden v Walmart FACTS/RULING

Back 26

A women with knee problems tripped getting out of her car which sped up the necessity for surgery. She was rewarded with a small sum since it was partly her fault (since she had a preexisting problem)

Front 27

Holden vs Walmart SIGNIFICANCE

Back 27

Modified the idea of contributory negligence into comparative negligence: that is, both parties were partly responsible and must share the expenses.

Front 28

Appelate Courts:

Back 28

decide issues of law: what the law is/should be. Mainly correct errors commited by lower courts.

Front 29

Trial Courts of General Jurisdiction:

Back 29

Deal with any type of case not specified to another court.. Federal = District Courts
Each State also has these; e.g. florida circut courts

Front 30

Trial Courts of Specific Jurisdiction

Back 30

authorized to hear only specific cases (juvenile, probate etc..)

Front 31

Trial Court Procedure:

Back 31

evidence and testimony admitted under rules of evidence establsihed by procedural law, presided over by judges and often jury.

Front 32

Differences between Trial and Appelate:

Back 32

cases heard for first time, only affect people involved, 2 sides present evidence ///// affects large number of people, binding on court districts, no new evidence presented.

Front 33

How precedents developed in domestic violence...

Back 33

from temporary pain to husband has power over wife. Then precedent used of temporary pain to beating of wife. Next case applies precedent of ownership. Next, the presence of weapons and death threat, found guilty on basis of NOT temporary pain. Finally precedent abandoned and husband found guilty for beating wife.

Front 34

Butterfield v Forrestor FACTS/RULING

Back 34

Sued for falling off hourse after colliding with pole. Plaintiff riding to quickly, had he not been would have seen pole.

Front 35

Butterfield v Forrestor SIGNIFICANCE

Back 35

First apperance of contribuory negligence used as a common law defense against negligence: established as legitimate a defense based on the idea that the plaintiff himself caused the damage which he is accusing another of

Front 36

Holden v Walmart FACTS/RULING

Back 36

A women with knee problems tripped getting out of her car which sped up the necessity for surgery. She was rewarded with a small sum since it was partly her fault (since she had a preexisting problem)

Front 37

Holden vs Walmart SIGNIFICANCE

Back 37

Modified the idea of contributory negligence into comparative negligence: that is, both parties were partly responsible and must share the expenses.

Front 38

Utilitarianism

Back 38

moral worth of action decided soley by its utility in providing happiness (end result). Greatest good for greatest number of people. Bentham/Mill

Front 39

Ex Post Facto Law:

Back 39

law intended to apply to crimes or events that took place before its passage. US Constitution forbids it.

Front 40

Torts:

Back 40

Tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Intentional and Negligent Acts.

Front 41

Comparative Negligence

Back 41

(Outside U.S.) reduces the amount of damges that a plaintiff can recover based upon the degree to which the plaintiff's own negligence contributed to the injury. Jury decides.

Front 42

Contributory Negligence

Back 42

(Mainly Only in U.S.) common law defense to a claim based on negligence; applies when a plaintiff has, through his own negligence, contributed to the harm he suffered.

Front 43

Strict Product Liability:

Back 43

no matter how much one attempts to make their product safe, in the event of damage caused by it all involved with the product are accountable defendents.