Law Study Guide

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Law

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Set of standards and rules
Maintains order
Regulates human conduct
Sanctions or consequences enforce rules

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Common law

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customary or passed down, based on a precedent

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stare decisis

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let the decision stand (precedent)

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statutory law

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created by governing legislative law

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consitutional law

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laws created based off interpretation of the constitution

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executive law

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mayors and higher can create and interpret laws

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civil law

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one person suing another, noncriminal matters

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criminal law

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giverning body against individual or group

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trial courts

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fact-finding courts

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appelate courtsq

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law interpreting courts

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writ of certorari

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when supreme court agrees to hear a case

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per curiam decision

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unsigned opinion - decision of the court

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memorandum order

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voted decision without a written opinion

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Marbury v. Madison

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court has right to declare laws unconstituional when they go against the constitution

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judicial restraint

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theory that encourages judges to limit the use of their power

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judicial activism

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judges should reach beyond constitution to keep up with contemporary standards

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originalist

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looks to the constitution, not contemporary standards

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textualist

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takes the text literally

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intentionalist

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looks at the intention of the constitution, not the actual text - adapts it

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Jefferson's wall of separation

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separation between church and state

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how the supreme court decides which cases to hear

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looks for issues of broad national importance

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absolutist theory

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should be stricly interpreted as what it says

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ad hoc balancing theory

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taking things on a case by case basis

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preferred position balancing theory

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case by case basis, but first amendment given priority

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Meikeljonian theory

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speech should be divided into two categories - self-governing and all other speech

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symbolic speech/ expressive conduct

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portrays a particular message through the conduct - some people say it should be protect (flag buring)

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conduct versus expression

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conduct - only require intermediate scrutiny

expression requires strict scrutiny

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content-based restrictions

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message itself is being restricted

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U.S. v. O'Brien

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laws against buring draft card does not violate freedom of speech

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content-neutral restrictions

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restricts the time, place or manner

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Texas v. Johnson

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invalidated anti-flag-burning laws

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Near v. Minnesota

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ruled that gag law preventing lewdness in papers was unconstitutional because you can only sue after the fact - strict scrutiny

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Pentagon papers

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US tried to prevent NYT from publishing because of threat to national security, but no threat to national security could be found

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presumption of constitutionality

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shifts burden from gov to citizen - citizern must prove that law is unconstitutional

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Kincaid v. Gibson

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Kentucky state pulled yearbook for errors

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morse v. frederick

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bong hist 4 jesus - school wins

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layschock v. hermitage school district

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myspace cant be used against you in school

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doninger v. niehoff

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within rights for school to punish student for online comments about administrator

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lovell v. griffin

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pamphlets and dissemination protected by first amendment

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traditional public forum

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public sidewalks or street corners

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designated public forum

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taxpayer paid for

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private property as public forum

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becomes one when takes on characteristics of public forum (shopping malls)

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Flag protection act 1989

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response to Texas v. Johnson, overruled by US v. Haggerty

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fighting words doctrine

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words that have tendency to cause acts of violence - does not usually hold up as a defense in court

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Chaplinsky v. New Hampshire

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fighting words are those that cause an immediate breach of peace

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Gooding v. Wilson

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fighting words restricted to acts of violence from those about whom the words were said

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Village of Skokie v. National socialist party

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says there is no such thing as fighting words so nazis had to be allowed in Jewish town

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RAV v. St. Paul

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fighting words are content-based - cancelled ordinance saying you cant put up a swastica

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Virginia v. Black

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can burn cross for ceremonial purposes on own property as long as there is not intent to intimidate

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True threat

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targets individual or small group, intended to arouse fear and violence

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Sedition Acts of 1798

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made it a crime to publish anything false, scandalous or seditious - expired in 1801

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Espionage act of 1917/sedition act of 1918

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makes it a crime to disrupt military

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Smith act 1939

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Outlawed speech that advocated forceful overthrow of the government or disloyalty among military

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Schenk v. US

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clear and present danger doctrine - first exception for dissident speech

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Brandenburg v. Ohio

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set standard for incitement of violence against government

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libel

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published defamation that damages reputation of a living person

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slander

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libel that is spoken

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SLAPP suits

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strategic law against public participation - people suing media simply to get them to stop publishing stuff with no chance of winning

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Proving libel

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publication
identification
defamation
harm
falsity
fault

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republication and libel

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you can still be at fault for republication

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group identification in libel

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groups must specifically be singled out, otherwise it is just gross generalization

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strict liability

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used to be the standard for libel - you had to prove that you were innocent

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libel per se

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word itself is libelous

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libel per quod

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libelous when considered with other facts

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product disparagement / trade libel

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companies can sue for defamation of product only if it is likely to or does affect profit

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libel and private citizens

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simple negligence must be shown

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libel and public officials

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actual malice must be shown

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reckless disregard for the truth

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when a reporter isn't careful enough, doesn't check sources thoroughly enough

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NYT v. Sullivan

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public officials must show actual malice

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public official

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someone who is involved with government who is in the public eye

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curtis v. butts

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established rule for reckless disregard for the truth

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Gertz v. Welch

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established difference between total public figure and limited public figure

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Time v. Firestone

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says limited public figures are voluntary

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all purpose or total public figure

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someone who is instantly recognizable

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qualified privilege

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allows people in positions of authority to say things that would be otherwise libelous

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rhetorical hyperbole

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gross exaggeration that no one would think is true

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milkovich v. lorain journal

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no opinion privilege exists along with libel - if opinion says a fact, it is libelous