Flashcards in Chapter 1 - Development of American Law - Concepts Deck (75):
Positive law has been called (1), and is enunciated by the (2) and backed by the (3).
1. "command of the sovereign"
3. coercive power of the state
To be law, a command must take the form of a (1), (2) or (3) that applies equally to everyone. It must be seen as (4), (5), and (6).
The Declaration of Independence's assertion of "unalienable rights" is based in (1), which is a (2) that often is seen to transcend positive law. As such it often brings about (3) or (4) of positive law.
1. natural law
2. philosophical concept
3 examples in which the biblical concept (natural law) of "Thou Shalt Not Kill" has played into political discussions
1. death penalty
3. abortion rights
2 examples of the philosophical interplay between natural and positive law, and the idea that belief in a higher law allows us to evaluate laws of our legal system, using our conscience.
1. Civil disobedience propagated by Martin Luther King, Jr. against segregation/discrimination that was at the time authorized by law
2. Nuremberg Trials, which tried Nazis for atrocious behavior that fit within the German law during WWII
American writer best known for advocacy of civil disobedience and idea that individual conscience supersedes state law.
Henry David Thoreau
2 criticisms to civil disobedience
1. Citizens are obligated to obey law adopted by legitimate democratic procedures
2. Individual conscience is insufficient basis for disobedience--law unto oneself
The legitimacy of law depends greatly on (1). In a rep. democracy, this is done by elected representatives serving on a (2). All members have a (3); a (4) is require to enact it. In democracy, legislators are elected through (5).
1. how it is made
3. right to introduce legislation
5. free and fair elections
The United States is more complex than a simple representative democracy, but is a (1) in which (2) is tempered by protections afforded to (3) by law. This also manifests itself in lawmaking abilities vested in other entities than (4).
1. constitutional republic
2. majority rule
3. minority rights
The 2 tests of legitimacy of law
1. substantive (based on fair, just, reasonable principles)
2. procedural (enacted, applied, enforced according to fair, just, reasonable procedures)
7 major forms of law
4. executive order
7. judicial decision
Fundamentally, law protects (1) and their (2)--the (3) as well as the (4),
Classical liberals like Thomas Jefferson, (1) and (2) were as important as right to own property and right to engage in private enterprise, but the (3), supported by John Stuart Mill, does not share the view that laws should protect (4).
1. freedom of religion
2. freedom of speech
3. libertarian view of law
4. traditional notions of morality
Conservatives see law and morality as (1) and that (2) prevents (3) of society.
1. inextricably intertwined
2. preservation of traditional morality
A society's (1) affects its law, and vice versa. Max Weber recognized that a capitalist economy requires a highly developed legal system capable of enforcing (2) and (3) and must generally provide a (4). Uncertainty impedes (5),
1. economic system
3. property claims
4. predictable climate in which business can take place
5. voluntary economic activity
While law facilitates economic development by (1) and (2), it can serve as an impediment if too many (3) are placed on it.
1. regulating transactions
2. rationalizing risk
3. conflicting demands
Marxists, anarchists and radicals generally see law in a capitalist society as a (1) and an (2).
1. tool of oppression
2. agent of inequality
Law picks up where (1), (2) and (3) leave off.
1. social norms
2. moral principles
3. religious precepts
Legal resolution picks up where informal means like (1), (2) and (3) leave off. As societies become more diverse, impersonal, complex and specialized, the requirement for law becomes (4). In a democratic society, law also requires a reasonable degree of (5), which can be hard to achieve.
4. more powerful
8 prominent examples of competing values found in law discussions
1. private enterprise v. public good
2. freedom v. equality
3. privacy v. crime control
4. private property v. environmental protection
5. national security v. freedom of the press
6. public order v. the right of public assembly
7. freedom of expression v. decency and civility
8. majority rule v. minority rights
Primitive, tribal societies had no (1) and relied on leaders who relied on sheer power, charisma and (2). Individual behavior and social and economic relationships were governed by (3) and sanctions based in (4).
1. formal systems of law
2. claims of supernatural authority
With the emergence of (1), isolated tribal societies evolved into (2). Leaders, usually (3) began formalizing customs into (4).
2. territorial confederations
4. written codes of law
The oldest written legal code is the (1), produced in (2) 2000ish BC. In terms of crimes and punishments, this code adopted (3), similar to the Hebrew law calling for "an eye for an eye." A striking feature was that it provided (4), even for slaves.
1. Code of Hammurabi
3. lex talionis
4. equal protection of the law
Athenian legislator (1) developed a very strict legal code that is still referred to today. The (2) replaced this later and had a more liberal nature as well as a right to (3)--a precursor to jury by peers.
2. Code of Solon
3. appeal magistrate decisions to public assemblies
Codified Roman Law began with the (1). Before this, customs were simply interpreted by the (2), composed of patrician aristocrats. Roman Law evolved and was again codified in the (3), or Body of Civil Law, also known as the (4) and supplemented by the (5), or New Laws.
1. Twelve Tables
2. College of Pontiffs
3. Corpus Juris Civilis
4. Code of Justinian
After the decline of the Roman Empire, the feudal system relied largely on (1) and later on (2). Throughout the Middle Ages, the (3) of the Roman Catholic church exercised control in personal relationships. Roman Law eventually became the basis of law throughout (4).
2. royal decrees
3. canon law
The (1), a codification of all civil and criminal laws of France, was based largely on the code of Justinian. It was (2), (3), (4) and (5).
1. Napoleonic Code
5. written in the common language of the people
The Napoleonic Code became a model for a (1) for the nations of Western Europe, known as (2) systems. These systems are characterized by (3) applied with (4).
1. uniform system of law
2. "Roman law"
3. primacy of legislature-enacted statutes
4. minimal judicial interpretation
American law is derived largely from (1), which began as a mixture of (2) and (3). Royal courts grew increasingly popular under William the Conquerer, Henry I and Henry II because of their reliance on (4), and courts began to look to decisions of their colleagues in similar cases, giving birth to (5).
1. English common law
2. local laws applied by feudal courts
3. church law applied by ecclesiastical courts
4. trial by jury
5. common law
In 1215, King John placed his seal on (1) which established a principle that the government is subject to the rule of law--a principle adopted by the Constitution. This document also established (2) in that no man could be "destroyed" without "judgment of his peers or by law of the land."
1. Magna Carta
2. due process of law
Three courts of common law that existed when Magna Carta was signed, and what they did
1. King's Bench ("pleas of the crown")(criminal cases)
2. Court of Common Please (civil cases)
3. Court of Exchequer (dealt with King's property/revenue but extended to private controversies)
As court clerks began recording rulings of common law courts, especially at the advent of the printing press in the 15th Century, the idea of (1) was born and laws were developed primarily through (2) as opposed to the (3) of Roman law systems. Today, this remains an important component of both (4) and (5) legal systems.
1. stare decisis
2. judicial review
3. legal codes
In early common law the difference was established between civil law and criminal law, the latter of which defined a crime as (1). So criminal prosecutions would be called (2) or (3). The terms (4) and (5) existed back then as well.
1. an intentional act that produced harm to the society
2. Rex v. (King v.)
3. Regina v. (Queen v.)
By 1600, common law classified criminal acts as (1) punishable by death or (2). (3) most often dealt with property disputes; other civil offenses were (4) or (5).
3. Civil suits
4. breach of contract
In order to obtain justice at common law, a plaintiff had to petition a court for the appropriate (1), or court order. Because regular people found these tough to navigate, the (2) was born. The most celebrated common law writ was (3), which the Framers found very important as well and said could only be suspended when in (4) or (5) the public safety required it.
2. legal profession
3. habeas corpus
4. Cases of Rebellion
Prior to juries, trials in England took the form of (1), (2), and (3).
Replacing primitive trial methods in common law were more rational fact-finding processes. Early on, (1) heard (2). Then (3) served as fact finders, basing conclusions only on evidence introduced in court. By the 14th Cent, (4), who decided whether an individual should be indicted and bound over for trial, were distinguished from (5), fact finders in civil and criminal cases.
1. common law judges
2. witness testimonies
4. grand juries
5. petit juries
Common law trial lawyers were referred to as (1) because they could (2). In contrast to the (3) of Roman Law, English common law developed an (4) in which opposing parties contend and the judge plays neutral referee.
2. cross the bar separating the judge's bench from the spectators
3. inquisitorial style
4. adversarial system of justice
Today, the adversarial system of justice is more (1) than (2), which many cases ending int (3) for criminal cases or (4) for civil cases. Though the adversarial system presumes that truth and justice are most likely to emerge from the (5), there is no assurance of this.
3. plea bargains
5. clash of opposing factual/legal claims
Into the 14th Century, common law became (1), (2) and (3). When relief could not be sought through common law, people would appeal directly to the King who would delegate matters to his Chancellor, or "keeper of his conscience.) This supplemental law practice evolved into the (4) with its own jurisprudence called (5),
1. highly technical
4. Court of Chancery
The Court of Chancery did not follow the (1) or utilize (2). Instead it made (3) and fashioned (4). Although it did not follow common law or stare decisis, they were guided by (5), or statements of generally accepted principle, from previous equitable decisions.
1. writ system
3. factual determinations
4. equitable remedies
Common law courts were limited in civil actions to (1), while the Court of Chancery could issues (2), or order (3) in cases of breach of contract. The Court of Chancery also developed the (3). Eventually, both courts would be merged in both English and American civil systems.
1. awarding damages
3. specific performance
4. law of trusts
The English Parliament arose to settle a dispute between King Henry III and feudal lords, but became a feature of the political system, hearing (1) and presiding over (2). Parliament was then divided into (3) and (4) and began to (5) that revised and supplemented common law.
1. petitions from aggrieved subjects
2. abdications of kings
3. House of Lords
4. House of Commons
5. adopt statutes
The (1) established supremacy of Parliament over the Crown and the enactment by Parliament of the (2). Today, executive power resides in the (3) and (4), all members of Parliament. Thus (5) is vested in Parliament, while the monarchy is symbolic.
1. Glorious Revolution of 1688
2. English Bill of Rights
3. British prime minister
4. cabinet ministers
5. sovereignty (right to rule)
Some (1) followed common law tradition, while others did not. After independence was declared, some states adopted (2) -- constitutional provisions to incorporate English common law. Others adopted it through (3). (4) is the only state that has not adopted it; its legal system follows the (5).
1. American colonies
2. reception statutes
3. judicial decision making
5. Napoleonic Code
Following the American Revolution, American lawyers often traveled to London to study at the (1), and American judges and lawyers were greatly aided by (2), which codified and demystified principles of English common law.
1. Inns of Courts
2. Blackstone's Commentaries
The (1) was adopted by the Continental Congress, authored by Thomas Jefferson, and it outlined the colonies' (2) and asserted the (3). The verbiage in this document echoes those used by English author (4).
1. Declaration of Independence
2. grievances against the King
3. right of revolution
4. John Locke
4 reasons the Articles of Confederation (which bound the states loosely) were not working.
1. Congress had not power to tax or regulate interstate commerce
2. No presidency for leadership or a unified voice
3. No national court system to settle interstate disputes
4. Unanimous voice require to make changes to Articles
The (1) was in 1787 called in which the Articles of Confederation were scrapped. From the respect for separate sovereignty of states mixed with the concern for interstate rivalry came the idea of (2).
1. Philadelphia Convention
2 greatest sources of contention that had to be addressed in the drafting of the Constitution
1. disagreement between small and large states over representation
2. conflict between northern and southern states over slavery
4 things the Constitution remedied over the Articles of Confederation
1. gave Congress ample legislative powers
2. established an executive branch
3. provided for a national court system
4. strengthened the national government
The English constitution is a collection of documents, statutes, judicial decisions and customs dating back to (1); the US Constitution (2). The English constitution can be altered at any time by an (3); the US Constitution is (4). The US Constitution is founded in the belief in the (5)--that is, that nobody is above the law
1. Magna Carta
2. stands above ordinary legislation
3. act of Parliament
4. extremely difficult to amend
5. rule of law
Power in the US Constitution is distributed among three branches by function to avoid (1) or (2), (3) delineate the checks and balances the Framers hoped would result in a tug-of-war of power between the (4) and (5); the judiciary was not considered dangerous.
1. manipulation by monarchs
2. capture by impassioned/short-lived majorities
3. "Auxiliary precautions"
The Constitution does not explicitly provide for (1) for the judicial branch. The SC asserted the power to declare Congressional acts unconstitutional in (2) and later extended the scope of judicial review to (3). Today, both state and federal courts continue this responsibility of (4) and (5) of the Constitution.
1. checks and balances
2. Marbury v. Madison
3. state laws
In Marbury v. Madison, William Marbury asked the SC to issue a (1) to compel new SoS James Madison to deliver his JoTP commission issued by (2) before (3) election. While the SC agreed he was entitled to this commission, it held that Congress' Act giving the SC the power to issue writs of mandamus in (4) was unconstitutional. This set the stage for (5), which John Marshall viewed as the judicial branch's important responsibility to ensure law stayed within the bounds of the Constitution.
1. writ of mandamus
2. John Adams
3. Thomas Jefferson
4. original jurisdiction
5. judicial review
After the Constitution was drawn up, (1) was disappointed it did not contain (2). Some states, especially Virginia, agreed, but ratified the Constitution under a (3) that such a bill of rights would be added. All of the provisions were responses to (4) and the (5).
1. Thomas Jefferson
2. enumerated individual rights
3. "gentleman's agreement"
4. abuses of official power
5. perceived inadequacies of common law in curtailing such abuses
5 basic freedoms granted by the First Amendment
5. lobbying (petitioning for redress of grievances)
The idea of having (1) was paramount the Framers, who descended from a history of religious authority by the (2) and later by the (3). The First Amendment secures the right of (4) and (5) of religion.
1. no official religion
2. Catholic Church
3. Church of England
5. free exercise
Despite that English common law recognized the right of the press to be free from (1), it did not go far in protecting this right. (2) could be prosecuted by the Crown even if it was true. In New York, (3)'s criticism of the governor was prosecuted, but the jury (4), setting the stage for support of freedom of the press.
1. prior restraints
2. Seditious libel
3. John Peter Zenger
4. acquitted him
In escaping England's barbaric methods of obtaining confessions and inflicting punishments, Bill of Rights authors included rights of the accused in Amendments 4, 5, 6, and 8. What are these 10 basic rights?
1. No unreasonable search and seizure
2. Right to a speedy trial by impartial jury
3. Right to counsel
4. Right to confront prosecution witnesses
5. Right to compel witness testimony for defense
6. Protection against self-incrimination
7. No double jeopardy
8. No excessive bail
9. No excessive fines
10. No cruel and unusual punishments
The 13th, 14th and 15th Amendments, known as the (1), freed slaves, assured equal protection and due process to them, and gave them the right to vote, though these promises went (2) for many years.. The (3), guaranteeing equal protection and due process, became a major source of legal protection for (4), extending beyond racial discrimination.
1. Civil War Amendments
3. 14th Amendment
4. civil rights
Due process can be divided into (1), which compels government to provide fair notice and a fair hearing before depriving individuals of live, liberty or property, and (2), which bars enforcement of policies that are irrational, unfair, unreasonable or unjust, even if they are not unconstitutional.
1. procedural due process
2. substantive due process
Earl Warren was appointed chief justice by (1) and greatly expanded (2) by reinterpreting provisions of the Bill of Rights and 14th Amendment. His most memorable achievement was (3), which declared public school segregation unconstitutional.
1. Dwight D. Eisenhower
2. individual rights
3. Brown v. Board of Education
While the Bill of Rights was intended as a limitation on (1), the 14th Amendment extended these limitations to (2)--taking this burden of limitation away from state constitutions. This (3) means that standards of liberty and due process are applicable to (4).
1. national government
3. doctrine of incorporation
4. governments at all levels
Once adopted, a (1) supersedes common law in that jurisdiction. Many modern statutes deal with subjects (2) to common law, such as environmental protection. Although Congress was not vested with (3), it vaguely links much of its legislation to its (4). One modern piece of legislation was the (5), pushed through Congress by President Lyndon B. Johnson.
1. statute crafted by Congress/state legislatures
3. police power
4. Commerce Clause
5. Civil Rights Act of 1964
Because (1) by state legislatures do not always have plain language/obvious meanings, a principal function of contemporary courts is (2)--interpreting and assigning concrete meanings to these. The racial discrimination in employment provision of the (3) is one example; when to use (4) to remedy discrimination and promote workplace diversity is another.C
1. statutory provisions
2. statutory construction
3. Civil Rights Act of 1964
4. affirmative action
Through (1), a legislature transforms the common law in a given area into a clear, systematic code of laws. In 1846 David Dudley Field wrote (2) to persuade New York to codify its laws. Field produced codes of (3) and (4) that were widely adopted, and today all states have codified laws. National laws are codified in the (5). Court cases must still be looked to for (6) of these codes.
2. The Reorganization of the Judiciary
3. civil procedure
4. criminal procedure
5. United States Code
(1) have helped standardize law. For example, the (2) in 1952 helped bring uniformity to modern commercial practices. It has now been adopted by all states, which has greatly facilitated (3). (4) has similarly influenced uniformity among criminal statutes.
1. Uniform codes
2. Uniform Commercial Code
3. interstate commerce
4. Model Penal Code (1962)
Originally, national government took a hands-off approach in which it concerned itself with (1), (2) and (3)--leaving (4) and (5) to state and local governments, which deferred these responsibilities to neighborhoods, families and churches.
1. regulation of foreign trade
2. facilitation of internal improvements (roads, canals)
3. protection of national security
5. social welfare
(1) and the emergence of an economy dominated by corporations led the government to take a greater role in (2). The establishment of the (3) and the passage of the (4) in 1930 and other later programs led the government to take a more intrusive regulatory role.
1. Post Civil-War industrialization
2. solving social problems
3. Interstate Commerce Commission
4. New Deal (FDR)
As government's role has become more complex, Congress has come to rely on experts for (1). Congress has transferred broad legislative power to departments, agencies, boards, commissions and bureaus known collectively as the (2). These agencies, such as the FDA and OSHA, are given vague generalities to guide their (3). Because many of these agencies exercise some powers from all three government branches, the (4) of them has been raised.
1. development and implementation of regulation
2. federal bureaucracy
Although (1) modify substantive and procedural law, (2) play an equally important role in development of law. (3) make factual determinations, apply settled law to established facts and impose sanctions. (4) review decisions according to statutes and constitutions.
3. Trial courts
4. Appellate courts
Courts must (1) and (2) in majestic constitutional phrases. Although common law crimes have been replaced by (3), common law remains a valuable source of statutory interpretation.
2. find meaning
3. statutorily defined offenses
In interpreting law, (1) is generally followed. However, sometimes deviation from these is required, or there is no precedent to rely on. So appellate courts perform a (2) as well as an (3). Altogether, the courts' effect on law is called (4).
1. stare decisis
2. lawmaking function
3. error correction function
4. decisional law