POLS 330 Midterm
What is legislative oversight?
Congress and state legislatures perform oversight over administrative and regulatory agencies.
McCulloch v. Maryland (1819) is most important for its statement of the doctrine of ______.
Implied Powers
Where is the power of the president as Commander in Chief outlined?
Article II, Section 2, Paragraph 1.
What is a statute?
A law that is generally applicable within the jurisdiction of that legislature.
What is outlined in the 3rd amendment?
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
What is habeas corpus?
"You have the body"; A device by which a court of law would require a person to show just cause for holding another person in custody.
What is the Commerce Clause?
(Article 1, Section 8) "The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
What is the Contracts Clause?
(Article I, Section 10) "No state shall pass any law impairing the obligation of contracts"; Protects the right of individuals to be free from governmental interference with their contractual relationships; Performed an important function in the early years of American economic development.
What is an ex post facto law?
(Article I, Section 9 and 10) Law passed after the occurrence of an act that makes that act illegal.
What is a bill of attainder?
(Article I, Section 9 and 10) Legislative act that imposes punishment upon a person without benefit of a trial in a court of law.
What is habeas corpus?
(Article I, Section 9) "The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it."; Protects from unlawful custody; Enables a court to order the release of an individual who is found to have been illegally incarcerated.
What are the state and local law enforcement agencies?
(State) TBI, Highway Patrol; (Local) County Sheriffs, City PD.
What does the Free Exercise Clause say?
... Or prohibiting the free exercise thereof.
What is the current ratio of lawyers to individuals?
1 per 300 people.
"Powers not granted to the federal government are reserved to the states" is outlined where?
10th amendment
When people mention the "Equal Protection Clause," to which amendment are they referring?
14th
Which amendment provided women with the right to vote?
19th
What is required for a constitutional amendment to pass?
2/3 majority in both houses of Congress followed by ratification by 3/4 of states.
How many legal systems are in this country?
51
Where is the Due Process of Law guaranteed?
5th amendment
Describe the district courts.
94; Lowest level of the federal court system; Hear criminal and civil cases; Each district court has its own bankruptcy court; Juries responsible for verdict.
What is the "original intent" method of constitutional interpretation?
Look to the intention of the framers.
What is common law?
A body of general rules prescribing social conduct, enforced by the ordinary royal courts, and characterized by the development of its own principles in actual legal controversies, by the procedure of trial by jury and by the doctrine of the supremacy of the law.
What is an ordinance?
A law enacted by a local governing body such as a city council or a county commission.
What was the magna carta?
A series of promises that the king would follow the dictates of the law in dealing with his subjects and vassals; Government is subject to the rule of law.
What did the Court rule in the case of Sherbert vs. Verner?
A state regulation that is neutral toward religion in purpose, but nonetheless "substantially burdens" a religious practice, must be justified by a "compelling state interest."
What is the Missouri Plan?
A way of selecting state judges that combines merit-based, appointive, and elective elements.
What is outlined in the 2nd amendment?
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
What was the "writ system" as developed by common law?
A writ is a court order; In order to obtain justice at common law, a plaintiff had to petition the court for the appropriate writ.
What cases are most likely to be heard by the Supreme Court?
Ones likely to affect public policy.
What is the function of the chief executive?
Administration of government; Agenda setting; Policy development; Oversight of bureaucracy; Law enforcement.
Although ______ are technically employees of the agencies they serve, they are supposed to function as impartial arbiters of disputes.
Administrative Law Judges
What is strict scrutiny?
Laws discriminating against citizens on grounds of race or national origin are viewed as inherently suspect and are subjected to this; State must show a compelling reason for the law.
What are the Tennessee regulatory agencies?
Alcoholic Beverage Commission; Tennessee Wildlife Resources Agency; Health Facilities Commission; Department of Environment and Conservation; Department of Commerce and Insurance.
What is outlined in the 14th amendment?
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is the Clear and Present Danger Test with regards to freedom of speech?
Allows language to be regulated only if it presents a clear and present danger; There is a direct link between what is being said and the evil at hand.
What is per curiam opinion?
Also has the force of law, but in these opinions, no single justice is identified as the author.
The Model Penal Code was published by the _______________.
American Law Institute
What is plurality opinion?
An opinion in which a plurality of justices joins, but does not amount, to the majority of the court, does not constitute a precedent, but does resolve the case.
What is the writ of certiorari?
An order to a lower court to send a case forward to the Supreme Court.
How did James Madison feel about the presidency?
Argued that presidential power is restricted to those specifically listed in Article II; Maintained that if new exercises of power could be continually justified by invoking inherent executive power, "no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative."
Describe the case of McDonald vs. City of Chicago.
Argued that the 14th amendment makes the 2nd amendment right to keep and bear arms for the purpose of self-defense applicable to the states.
Which state has the lowest density of lawyers in the country?
Arkansas with 1 for every 556 people.
Describe the courts of appeals.
Arranged into 12 circuits; Solely appellate jurisdiction; No new evidence or witnesses; Panel of 3 judges makes ruling, not a jury; Make sure the law was not erroneously applied.
Where are the enumerate powers of Congress outlined in the constitution?
Article 1, Section 8
Most of the enumerated powers of Congress are located in ______ of the Constitution.
Article I, Section 8
What did the Commerce Clause primarily serve during the 19th century?
As a barrier against state legislation; Neither states nor the national government engaged in extensive regulation of commerce during this time, but most of the government activity that did occur emanated from the states.
How does Congress rely on the Commerce Clause today?
As a source of regulatory authority and the courts have largely acquiesced.
How is the decision of United States vs. Nixon generally regarded?
As a vindication of the rule of law over political power and a fundamental reaffirmation of our constitutional democracy.
Describe the term of Supreme Court justices.
Begins the first Monday in October; Ends in June or July; Alternating 2 week intervals, with 2 weeks hearing cases then 2 weeks writing opinions; Oral arguments are given by lawyers (30 mins. for each side) and written "briefs" are submitted.
In a concurring opinion in Ashwander v. Tennessee Valley Authority (1936), Justice _________ set forth the basic limiting doctrines observed by courts in the exercise of judicial review.
Brandeis
What is a civil offense classified as "breach of contract or torts"?
Breach of contract occurred when a party to a contract violated the terms of agreement; A tort was a wrongful act that did not violate any enforceable agreement, but violated a legal right of the injured party.
What famous case overturned the doctrine of "separate but equal" as applied to public schools?
Brown vs. Board of Education
Describe the case of United States vs. O'Brien.
Burning a draft card at a war protest rally was not protected speech because law was content-neutral and not aimed at restricting expression.
What are the implied powers of Congress?
Conferred by the Necessary and Proper Clause; Recognized in McCulloch vs. Maryland; Criminalizing Medicare fraud; Establishing the Civil Service; Conducting investigations; Establishing administrative agencies; Uniform Code of Military Justice.
What is mootness?
Case dies before it can be heard.
What is ripeness?
Case is not yet "ripe" for judicial resolution.
What are the megatrends in American legal development?
Centrality of courts; Codification of the substantive law; Codification of legal procedure; The emergence of administrative law; The expansion of civil rights and liberties; The litigious society; The prevalence of the legal profession.
What was the conclusion of United States vs. Nixon?
Chief Justice Warren E. Burger concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process law in the fair administration of criminal justice.
The ______ is the codification of all final rules of all federal agencies.
Code of Federal Regulations
What are the 2 approaches to the 2nd amendment?
Collective approach (military centric); Individual approach (personal right).
What is the centrality of courts?
Common law development; Statutory interpretation; Constitutional interpretation; Resolution of disputes.
What does the 1st amendment outline?
Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
What does the Establishment Clause say?
Congress shall make no law respecting an establishment of religion.
What are legislative powers restricted to?
Constitutionally enumerated and applied powers.
What are the common features of the 51 legal systems?
Constitutions; Legislative bodies; Court systems; Executive authorities that include law enforcement, prosecutorial, and regulatory agencies.
What is the textualism method of constitutional interpretation?
Consult first (and perhaps last) the actual language; Places emphasis on what the Constitution says.
Describe the case of Griswold vs. Connecticut.
Contraception; For the first time, found a right to privacy in the constitution as it applies to the marital relationship; Struck down state law prohibiting contraceptive use; Court said the due process clause of the Fourteenth Amendment guaranteed a right to privacy that applied to sexual activity within a marital relationship.
Describe the case of Eisenstadt vs. Baird.
Court concluded that the right to privacy extended to the unmarried as well.
What is the stare decisis (precedent) method of constitutional interpretation?
Court refers to early cases to find a rule or principle to govern the current case.
Describe the case of Chaplinsky vs. New Hampshire.
Court ruled that fighting words contribute nothing to the expression of ideas or truth and the value of fighting words is outweighed by society's interest in order and morality.
Describe the case of Sherbert vs. Verner.
Court ruled unconstitutional a state law that denied Sherbert unemployment compensation because, as a Seventh Day Adventist, she refused to accept a job that required her to work on Saturdays; The law did not single out religion as a reason for the denial of benefits, but it did have a "substantial effect" on her religious practices.
Describe the case of Texas vs. Johnson.
Court struck down a Texas statute that prohibited the "desecration of venerated objects," such as the U.S. flag; "Court may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable."
Describe the case of Tinker vs. Des Moines School District.
Court struck down a school rule forbidding students to wear black armbands as an expression of their opposition to the Vietnam War; Said fear of disturbance was not a sufficient state interest to suppress expression.
Describe the case of Employment Division, Department of Human Resources vs. Smith.
Court upheld a state law denying unemployment benefits to employees of a drug rehab organization who were fired for using peyote (a hallucinogenic drug) for religious purposes; Court ruled that law was neutral and generally applicable and did not specifically burden religion; The state did not need to meet the compelling interest test, but only the rational basis test.
Describe the presumption of constitutionality.
Courts will presume a challenged statute or governmental action is valid until it is demonstrated otherwise; The party bringing the challenge carries the burden of persuasion; Doctrine is based on an appreciation for the counter-majoritarian character of judicial review and a fundamental respect for the legislative bodies in a democratic system.
Describe administrative and regulatory agencies.
Created by legislatures; Powers delegated from legislatures; Overseen by legislatures; Promulgate rules; Enforce rules; Adjudicate disputes over application of rules.
What questions do state courts mostly address?
Criminal law; Property law, real estate, probate, inheritance; Contracts; Family law, divorce, child custody, juvenile delinquency.
Describe the case of D.C. vs. Heller.
D.C. city council enacted the Firearms Control Regulations Act of 1975, which banned residents from owning handguns, automatic firearms, or high-capacity semi-automatic firearms; Prohibited possession of unregistered firearms; Required firearms held in the home to be unloaded, disassembled, or bound by a trigger lock or similar device.
Describe the case of United States vs. Eichman.
Declared statute making it a crime to desecrate the flag unconstitutional because it was aimed at suppressing expression.
What are the powers of the state legislatures?
Define offenses and set punishments for their states; Authorize local governing bodies to enact ordinances defining minor offenses and setting penalties; Have inherently broad powers (the police power) to enact laws to further the public safety, order, health, and welfare.
What do the federal and state constitutions do?
Define structures of their respective governments; Specify individual rights; Mandate due process of law; Limit legislative enactments; Limit executive actions; Determine broad jurisdictions of courts.
Through a series of broad ______, Congress and the state legislatures have transferred to the executive bureaucracy much of the responsibility for making and enforcing the rules deemed necessary for a technological society.
Delegations
What is the "Constitutional Theory"?
Derived from James Madison's ideas, the theory finds its best and most succinct expression in the words of President Taft; In his view, the president can "exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise."
Which U.S. courts are the major trial courts in the federal judiciary?
Districts
What is concurring opinion?
Documents written by justices expressing agreement with the majority ruling but describing different or additional reasons for the ruling.
What is dissenting opinion?
Documents written by justices expressing disagreement with the majority ruling.
Who are the chief executives?
President; 50 state governors; Mayors and county executives.
What are the powers of the U.S. Congress?
Enact laws defining federal crimes and setting punishments for those crimes.
What are the 2 guarantees to protect religious freedom contained in the 1st amendment?
Establishment Clause and Free Exercise Clause.
What does Dickerson vs. United States say about stare decisis?
Even when a prior decision is wrong, stare decisis carries a persuasive force that we have always required a departure from precedent to be supported by some "special justification."
What does the 1st amendment require with respect to freedom of religion?
Every political community must reconcile the demands of religious faith (or denial) with the beliefs of others, as well as with the collective welfare of the community.
How did Oliver Wendell Holmes consider law?
Evolutionist; Law was a science, but more in terms of biology than math; Legal principles needed to adapt to ever-changing human needs; The trail of cases tells us what has worked and what has not.
You are wearing a plaid vest on Monday. The next day, the state passes a law that bans wearing plaid vests on Monday. You are arrested on Wednesday for having worn your plaid vest two days earlier. What principle below best indicates why this case should be thrown out?
Ex Post Facto Law
What are the federal law enforcement agencies?
FBI, DEA, ATF, U.S. Marshals Service, ICE, Secret Service, National Park Service, TVA, U.S. Fish and Wildlife Service.
What is stare decisis?
The court should follow the principle of law enunciated in previous decisions by the highest court within its jurisdiction.
T/F: The doctrine of stare decisis is no longer an important component of the American legal system.
False
T/F: With one lawyer for every 24 persons, Texas has the highest density of lawyers in the country.
False
In ____________ (1970), the Supreme Court held that the Fourteenth Amendment Due Process Clause required a state agency to provide an evidentiary hearing before terminating a person's welfare benefits.
Goldberg vs. Kelly
What is the power of eminent domain?
Government has this inherent power to take private property from the owner for a public use.
What do local legislatures enact?
Ordinances; State legislatures delegate power to local bodies; City councils or commissions enact city ordinances; County commissions enact county ordinances.
What is the Neutrality Test with regards to the Establishment Clause?
Government should be neutral towards all religions or no religion at all; Treat everyone the same whether they are religious or not; Do not favor the religious but also do not discriminate against the religious.
What is the Endorsement Test with regards to the Establishment Clause?
Government should not send a message that it endorses one particular religion over another; If a reasonable observer would feel that the government was endorsing one religion over another, then the action violates the clause.
T/F: "Substantive due process" refers to the government's obligation to provide fair notice and a fair hearing to individuals before depriving them of "life, liberty or property."
False
T/F: A federal taxpayer ordinarily has standing to initiate a court challenge to a federal program on the ground that the law authorizing such program is unconstitutional.
False
T/F: A felony typically carries less than one year in jail.
False
T/F: American law is derived largely from the Roman Law.
False
T/F: Article V of the U.S. Constitution prescribes that to amend the Constitution requires a simple majority in both houses of Congress followed by ratification by at least two-thirds of the states.
False
T/F: Every state in the union has a bicameral legislature.
False
T/F: In the American context, federalism refers to the division of power between the state governments on the one hand and the local governments on the other.
False
T/F: Once they obtain evidence of criminal activity, all federal agencies are authorized to initiate criminal prosecutions against violators.
False
T/F: The Bill of Rights to the U.S. Constitution, ratified in 1791, provided a set of limitations that enabled citizens to look to their federal courts for protection against actions by their state governments.
False
T/F: The Solicitor General heads the U.S. Department of Justice.
False
T/F: The Supreme Court has held that the Establishment Clause of the First Amendment prohibits states and local communities from providing funds to religious schools for a general program of assistance that benefits all schoolchildren.
False
T/F: The U.S. Supreme Court's appellate jurisdiction is now exercised almost exclusively through the writ of habeas corpus.
False
T/F: The doctrine of original intent has become a universally accepted basis for constitutional interpretation by the U.S. Supreme Court.
False
What criteria must disputes meet in order to be heard in federal court?
Federal questions (constitution, federal statute, regulation, executive order, or treaty); Diversity of citizenship; If civil suit, parties must be from different states and amount in controversy exceeds $75,000.
Separation of powers is one of the two basic structural characteristics of the American constitutional system; the other is _________________.
Federalism
Describe the presidential power to commit military forces abroad without prior Congressional approval.
First exercised by Jefferson in 1801; In instances through 1854, the SC did not have the opportunity to decide the scope of the president's power as commander in chief.
What is the "Lemon 3 part test" from the case of Lemon vs. Kurtzman?
Governmental aid will be constitutional if... It has a valid secular purpose; Its primary effect is neither to advance nor inhibit religion; It does not lead to "excessive governmental entanglement" with religion.
What is the difference between "grand jury" and "petit jury"?
Grand jury would decide whether an individual should be indicted for a crime; Petit jury would serve as fact-finder in both civil and criminal cases.
What is the procedural component of Due Process Law?
Guarantees a person his or her "day in court."
Describe the development of judicial review and Federalist No. 78.
Hamilton; Judiciary was seen as the least dangerous branch of government; Court had power of neither the purse nor the sword; Anticipated and approved of judicial review because it would check the momentary passions of the people; Argued that the Constitution was the clearest expression of the public will in America, and that that document checked the legislature, thus judicial review would place the true will of the people over the momentary passions and interests that were reflected in Congress.
What would NOT qualify as an actus reus?
Having a seizure while driving and running into a car parked on the side of the road. Assume this is your first seizure and you have had no warning signs that this would occur.
What is the Attorneys General?
Heads the U.S. Department of Justice; Every state, county, and city has one; Represent their respective governments in legal proceedings and give them legal advice.
Describe appellate courts.
Hear appeals from trial courts; Are not fact-finding bodies; Review the legal proceedings in the trial court to correct legal errors and settle unresolved legal disputes.
Which 19th-century American writer is best known for his advocacy of civil disobedience when the demands of conscious, conflict with the dictates of law?
Henry David Thoreau
What is the Coercion Test with regards to the Establishment Clause?
If a reasonable person would feel that they were being coerced by the government's action to participate in or be subjected to a religious exercise or practice, then the action violates the clause.
What is the Equal Access Test with regards to the Establishment Clause?
If the government opens up a forum for speech, expression, etc., it must provide access to everyone regardless of the "religious, political, philosophical, or content of the speech at such meetings."
What are the forms of expression outside of 1st amendment protection?
Imminent lawless action; Violence; Property damage; Criminal speech; Trespass; Defamation/libel; Obscenity; Time, place, and manner restrictions.
What is the only way to remove a federal judge from office?
Impeachment
What are the powers of state governments?
Police power to make laws in furtherance of public health, safety, welfare, and morality; Conducting elections and apportioning electoral districts.
Describe the Pentagon Papers Case.
In NYT Co. vs. United States, the SC held that the Nixon Administration's effort to block publication of the Pentagon Papers amounted to an unconstitutional prior restraint on the press.
What is the "Stewardship Theory"?
In Teddy Roosevelt's view, the constitution permits the president "to do anything that the needs of the nation (demand) unless such action (is) forbidden by the constitution or the laws"; The president is a steward empowered to do anything deemed necessary, short of what is expressly prohibited by the constitution, in the pursuit of the general welfare for which he is primarily responsible.
What does "delegata potestas non potest delegari" mean?
Power once delegated cannot be redelegated.
What are the values of freedom of expression?
Informed citizenry; Watchdog for government; Voice for the minority; Preservation of the truth.
What is required of quasisuspect classifications?
Intermediate standard of review; State must show an important or persuasive interest for discrimination.
What were the Prize Cases?
Involved the disposition of vessels captured by the Union navy during the blockade of southern ports order by President Lincoln in the absence of a congressional declaration of war.
What is the "institutional" component of constitutional law?
Issues of congressional, presidential, and judicial power as well as questions of state versus national authority and problems of interstate relations.
What are the "civil rights and liberties" component of constitutional law?
Issues of personal freedom and legal and political equality, usually asserted in opposition to exercises of governmental power.
What does Pyne vs. Tennessee say about stare decisis?
It is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; It is not an inexorable command, rather a principle of policy and not a mechanical formula of adherence to the last decisions.
In The Federalist, No. 47, __________ observed "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."
James Madison
Who was the Chief Justice that presided over Marbury vs. Madison?
John Marshall
According the the separation of power, what are the 3 bodies generally responsible for?
Legislative institutions enact laws; Executive institutions enforce laws, administer programs, and make and enforce regulations; Judicial institutions settle disputes between adverse parties.
What are civil liberties?
Liberties arising out of the constitution, bill of rights, and other amendments.
What is judicial activism?
Judges should make policy and law.
What is judicial restraint?
Judges should reject lawmaking and stick to interpreting; Courts tend to be cautious in exercising this authority.
What was the key principle that emerged from Marbury vs. Madison?
Judicial Review
What are the conclusions of Marbury vs. Madison?
Judiciary has become a far more political institution than Founders envisioned; Judicial review provides a powerful means to constitutional amendments; Judiciary is now a limited, but powerful policy-making body; The danger is that judicial review can degenerate into judicial oligarchy that degrades the standing and power of the legislature.
What are the federal prosecutorial agencies?
Justice Department, United States Attorneys, other federal agencies.
How did the Prize Cases end?
Justice Robert C. Grier held that "the president is not only authorized, but bound to resist force. He does not initiate war, but is bound to accept the challenge without waiting for any special legislative authority."
What is equity?
Justice or equality; When existing legal rules and procedures are insufficient to remedy injustice, a court should rely on general principles of fairness in granting relief.
What is natural law?
Law that is presumed to flow from man's "natural" condition, that is the social condition existing prior to the emergence of government.
Describe the case of Lee vs. Weisman.
Main question - Do religious invocations and benedictions during a public school graduation ceremony violate the Establishment Clause? Yes. 5-4 vote.
Describe the case of Everson vs. Board of Education.
Main question - Does reimbursing parents (with tax dollars) for transporting their children to private religious schools violate the Establishment Clause?; No. 5-4 vote; The 1st amendment only needs to remain neutral, but court said for the first time that there should be a "wall of separation between church and state".
Describe the case of Zelman vs. Simmons-Harris.
Main question - Does the Cleveland voucher program allowing parents to send their children to private or religious schools violate the Establishment Claus?; No. 5-4 vote.
Describe the case of Lemon vs. Kurtzman.
Main question - Does the reimbursing of nonpublic schools for teachers and secular education violate the Establishment Clause?; Yes. 8-0 vote.
Describe trial courts.
Make factual determinations; Usually involve juries; Primary settlers of legal disputes.
What are the powers of the national government?
Make treaties; Enact laws governing high seas; Print and coin money; Regulate international trade; Regulate immigration and naturalization; Provide for national defense; Regulate interstate commerce.
Which case established judicial review?
Marbury vs. Madison; The SC assumed the power to strike down unconstitutional federal statutes.
In "Letter from the Birmingham Jail," who defended his disobedience of a law he regarded as unjust?
Martin Luther King Jr.
What is the "living constitution" or pragmatism method of constitutional interpretation?
Meaning of the constitution changes to adapt to changing social and economic circumstances; Considers effect of various interpretations, suggesting that courts should adopt the one that avoids bad consequences.
Describe the selection and tenure of state judges.
Methods vary by state; Gubernatorial appointment; Legislative election; Partisan popular election; Nonpartisan popular election; The Missouri Plan; The Tennessee Plan.
What is required of nonsuspect classifications?
Minimum rationality test; State must only show that the law has some rational basis.
What is the 'lowest' level of mens rea, in the sense that it is often associated with crimes that bring lower punishments and it is often applied to conduct where someone didn't intend the crime -- perhaps an accidental behavior where they "should have known better"?
Negligence
The reasonable doubt standard that applies in criminal prosecutions differs markedly from the ______ standard that usually applies when someone is a accused of civil liability.
Preponderance of Evidence
Describe the selection and tenure of federal judges.
Nominated by the President; Confirmed by the Senate; Life terms; Removal only through impeachment; Salaries cannot be diminished.
What is the Nonpreferentialism Test with regards to the Establishment Clause?
Nondiscriminatory aid to and acknowledgment of religion is constitutional.
How are the number of federal judges determined?
Not set in the constitution; Congress has the power to set the number; 9.
The ________________, located within the U.S. Department of Education, is responsible for enforcing a number of civil rights laws that apply to public education.
Office of Civil Rights
What are the 5 things accomplished by the 14th amendment?
Overturned Dred Scott by declaring that "all persons born or naturalized in the U.S. ... are citizens of the United States and of the State wherein they reside"; Guaranteed, against state interference, "privileges and immunities of citizens of the United States"; No state shall "deprive any person of life, liberty, or property, without due process of law"; "No State shall make or enforce any law which shall ...deny to any person ... the equal protection of the law."; Gave Congress the power to enforce the provisions of the Amendment.
How does the Supreme Court choose which cases to hear?
Petitioning the SC; The role of law clerks; The Rule of Four; Other influences, including whether the U.S. government is a party in the case; Writ of certiorari.
Describe the nature of beings involved in civil suits. (Plaintiff vs. Defendant)
Plaintiff was the aggrieved party; Defendant was the party accused of a wrongful act.
What is the substantive component of Due Process Law?
Prohibits the government from acting arbitrarily, capriciously, or unreasonably.
What is the Doctrine of Incorporation?
Provisions of the Bill of Rights which are "essential to a scheme of ordered liberty" are incorporated within the Due Process Clause of the 14th amendment and are thereby made applicable to state as well as federal action.
What are public defenders?
Public officials charged with representing indigent persons accused of crimes; Part of state prosecutorial agencies.
Which category of mens rea would apply to 1st degree murder, a crime that requires planning (premeditation) as a component?
Purposeful
According to Black's Law Dictionary, a ______ suit is "an action brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution."
Qui Tam
What is prior restraint?
Refers to censorship before the fact; Preventing the press from publishing something the government doesn't like.
What is the politico view of representative roles?
Representatives should follow constituent opinion when that is clear and his/her own judgement or political interest when constituency opinion is unclear or divided.
What is the partisan view of representative roles?
Representatives should follow party leadership on national issues, submit to party discipline in voting, and advocate party positions to constituents.
What is the trustee view of representative roles?
Representatives should listen to constituents but use their own expertise and judgement to make decisions about public issues.
What is the delegate view of representative roles?
Representatives should reflect the views and protect the interests of his or her own constituents.
What does the 14th amendment include?
Requires states to provide equal protection and due process of law to all person within their jurisdiction; Section 5 grants Congress power to legislate in civil rights field; Has served as a basis for application of the Bill of Rights to the states.
What is the War Powers Resolution of 1973?
Requires the president to report to Congress within 48 hours of deploying troops, and to obtain specific congressional approval for continued deployment within 60 (or 90) days.
What is the Imminent Lawless Action Test with regards to freedom of speech?
Restricts speech only if it is aimed at producing or is likely to produce imminent lawless action.
What are civil rights?
Rights established by legislation, and not directly by the constitution itself.
What are the powers of the courts?
Settle criminal and civil disputes; Interpret the law; Interpret constitutional provisions; Judicial review; Maintain limited government; Protect individual rights; Foster legal development.
What are the principles of American Constitutionalism?
Rule of law; Federalism; Separation of powers; Checks and balances; Individual rights; Judicial review.
A SC decision interpreting the Constitution (but not a statute) is final unless one of 2 things occurs...
SC overrules itself; Constitutional amendment.
Describe the case of Roth vs. United States.
SC reaffirmed rule that obscenity is unprotected by 1st amendment; Implicit in the history of the 1st amendment is the rejection of obscenity as utterly without redeeming social importance.
How did D.C. vs. Heller conclude?
SC struck down the D.C. handgun ban and trigger lock requirement.
What ideas from Blackstone's commentaries were incorporated in the U.S. Constitution?
Separation of powers; Rule of law; Judicial review; Importance of property rights; Rights of the accused; Emphasizes dignity of the individual; Right of press, right to petition government for redress of grievances, right of assembly; Idea that our rights are not absolute.
What are the enumerate responsibilities of the president?
Shall take care that the laws be faithfully executed; Shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.
Who was William Blackstone?
Shaped the legal thinking of our Founding Fathers and earliest generations of American lawyers; His genius was his ability to organize the common law in a way that it became readable to lawyers.
What is the political questions doctrine?
Some questions, by their nature, are fundamentally political and not legal, then the court may refuse to hear it.
What are legal interest groups?
Sometimes represent people (or companies) in civil and criminal cases; File amicus curiae briefs in appellate courts.
Describe the nature of beings involved in criminal cases. (Sovereign vs. Accused)
Sovereign was always the plaintiff, the party initiating the legal action; Accused was the defendant, the party whom legal action has been brought.
What is generally considered a strict liability offense?
Speeding
The party seeking judicial review of a law must have ___________ in order to challenge that law, which means that the operation of the law must produce a substantial injury to the rights of the party seeking review.
Standing
What is required of a party seeking judicial review of a law?
Standing to challenge that law, which means that the operation of the law must produce a substantial injury to the rights of the party seeking review.
What are the constitutional limitations?
State constitutions; Federal constitution; Bill of Rights; 14th Amendment's Due Process and Equal Protection Clause.
Describe the case of United States vs. Nixon.
Stems from Nixon's refusal to comply with subpoena directing him to produce the Watergate Tapes, which he argued were protected by executive privilege.
The Supreme Court has modified the doctrine of presumptive constitutionality with respect to laws discriminating against citizens on grounds of race or national origin. Such laws are now viewed as inherently suspect and are subject to __________.
Strict Scrutiny
What is required of suspect classifications?
Strict scrutiny; State must show compelling interest for discrimination.
Who was Oliver Wendell Holmes?
Supreme Court Justice 1902-1932; Legal realist and reformer; Placed man at the center of philosophy, stripping away all notions of the transcendent or the divine; Human needs and experiences are paramount, not natural law.
Describe the case of Brown vs. Board of Education.
Supreme Court abolished racial segregation in the public schools, was based squarely on the Equal Protection Clause; Chief Justice Earl Warren.
What are the enumerated powers of Congress?
Taxing and spending powers; Power to declare war; Power to regulate interstate commerce; Power to establish federal court systems.
What are the notable themes in "Commentaries on the Laws of England"?
The Christian foundations of just law; The vital role of reason and the natural law; The indivisible relationship between law, property, liberty, and happiness; The sovereignty or rule of law.
What was the Napoleonic Code, a codification of all the civil and criminal laws of France, largely based off of?
The Code of Justinian
Describe the case of Miranda vs. Arizona.
The Supreme Court interpreted the Fifth Amendment Self-Incrimination Clause to require police officers to advise criminal suspects of their constitutional right to remain silent; In the spring of 2000, the Supreme Court reconsidered and reaffirmed its landmark Miranda ruling, suggesting strongly that the decision is now firmly established as part of the legal landscape.
What is the incorporation doctrine?
The SC began to apply the Bill of Rights to the states through this.
Describe what happened in the of Marbury vs. Madison.
The SC first declared an act of Congress unconstitutional for the first; Chief Justice John Marshall reasons that since the Constitution is the "supreme law of the land," and it is the duty of the judiciary to interpret the law, judicial review is both necessary and inevitable; Marshall stressed the fact that judges take an oath to support and defend the Constitution.
Describe the case of McCulloch vs. Maryland.
The SC struck down a Maryland act imposing a tax on the Baltimore branch of the Bank of the U.S.; The opinion of the court, authored by C.J. John Marshall, established the doctrine of implied powers and the doctrine of national supremacy.
Describe the case of Nollan vs. California Coastal Commission.
The Supreme Court struck down a state policy that required owners of beachfront property to grant an easement to allow public beach access as a condition for obtaining a building permit.
Describe the case of Mapp vs. Ohio.
The Warren Court applied the 4th amendment exclusionary rule to the state courts; Evidence obtained in violation of the 4th amendment is not admissible in court.
Describe the case of Miller vs. California.
The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals prurient interest; The "work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law"; "The work, taken as a whole, lacks serious artistic, political, or scientific value."
How can "Commentaries on the Law of England" be summarized?
The basic task of the legal system is to "command" what is right and "prohibit" what is wrong; Speaks to reconciliation of faith and reason, proper relationship between individual and community, and tension between liberty and security.
Why were Blackstone's commentaries influential in America?
The common law had a substantial history in the colonies prior to its publication; The American colonists primarily viewed themselves as Englishmen (possessing all the rights and liberties that status offered them); Good lawyers were scare in the colonies and working knowledge of the law even more so.
How did the case of Lee vs. Weisman conclude?
The constitution forbids the state to exact religious conformity from a student as the price of attending her own high school graduation.
How did Alexander Hamilton feel about the presidency?
The general doctrine of our constitution is that the executive power of the nation is vested in the President; Subject only to the exceptions and qualifications which are expressed in that instrument. (Article II)
What are the 3 views of the Establishment Clause held by the founders?
The government may not establish a national religion or church; Accommodation - The government may not prefer one religion over another, but it may encourage the importance of religious belief generally and accommodate the religious beliefs of individuals; Strict separation - a solid wall of separation exists between church and state.
What is constitutional law?
The judicial interpretation of the provisions of the state and federal constitutions in the context of "cases and controversies."; Law stated in the Constitution or in the body of judicial decisions about the meaning of the Constitution handed down n the courts.
What did the Prize Cases acknowledge?
The necessity of deferring to the president's decisions in time of crisis.
State legislatures are the primary locus of __________, which is the power to make laws in furtherance of the public health, safety, welfare, and morality.
The police powers
What is judicial review?
The power of courts to declare government actions invalid if they are contrary to constitutional principles; All actions of government are subject to it; Had become a bedrock principle of the American legal and political systems.
What do legal historians credit the Magna Carta with establishing?
The principle that government is subject to the rule of law.
What is outlined by the 4th amendment?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What is the one undisputed understanding of the Free Exercise Clause?
The state may not punish individuals for holding or rejecting particular religious beliefs.
In "Summa Theologica," what medieval philosopher characterized natural law as the "participation in the Eternal Law by rational creatures"?
Thomas Aquinas
What was selective incorporation?
Those rights "implicit in the concept of ordered liberty" would be incorporated against the states; Palko vs. Connecticut.
What was the primary purpose of habeas corpus?
To protect people from unlawful confinement.
What is the only crime defined in the Constitution, and how many witnesses, at minimum, are required for conviction?
Treason; 2 witnesses
What are the 2 main types of courts?
Trial and appellate.
What rights did the magna carta guarantee?
Trial by jury; Freedom of movement; Protection from arbitrary judgements; Required just compensation for seized property; Credible witness must be produced in criminal trial; Taxation by consent only.
What is the adversarial system?
Trial procedures are presumed to reveal the truth through the clash of skilled professionals vigorously advocating competing viewpoints; Judges are neutral and passive.
T/F: Chicago v. Morales indicates that vague criminal laws violate due process -- a constitutional protection that appears in both the 5th Amendment and the 14th Amendment.
True
T/F: Diversity of citizenship jurisdiction in the federal courts applies only to civil suits between parties residing in different states and is unrelated to the presence of a question of federal law.
True
T/F: Executive orders, notice of agency hearings, proposed and adopted rules, and amendments to proposed or adopted rules can be found in the Federal Register.
True
T/F: In Goss v. Lopez (1975), the U.S. Supreme Court held that the 10-day suspension of a student from a public school without a hearing was a violation of the Due Process Clause of the 14th Amendment.
True
T/F: In a civil suit, the aggrieved party is termed the plaintiff.
True
T/F: In the wake of the Great Depression the Supreme Court embraced a more progressive model of federalism in which the national government became recognized as the paramount authority.
True
T/F: Marbury vs. Madison significantly expanded the role and power of the judiciary, especially the Supreme Court.
True
T/F: Prior to the 20th century, women and minorities were effectively barred from the legal profession in the United States.
True
T/F: Prior to the 20th century, women and minorities were effectively barred from the legal profession.
True
T/F: SC has held that public officials and figures, when suing for libel, must show that a publication acted with "actual malice," which means that it acted with knowledge that what was printed was false or with reckless disregard for the truth.
True
T/F: Tennessee has separate appellate courts for civil and criminal cases.
True
T/F: The "right to privacy" is not explicitly stated in the Constitution.
True
T/F: The Bill of Rights initially protected citizens only against the federal government and did not apply to states.
True
T/F: The Equal Protection Clause prohibits states from denying any person or class of persons the same protection and rights that the law extends to other similarly situated persons or classes of persons.
True
T/F: The Fifth Amendment protects persons against compulsory self-incrimination, which is what is commonly meant by the phrase "taking the Fifth."
True
T/F: The U.S. Congress may not alter the original jurisdiction of the U.S. Supreme Court.
True
T/F: The U.S. Supreme Court has held that a property forfeiture stemming from a drug crime is subject to limitation under the Eighth Amendment to the Constitution.
True
T/F: The U.S. Supreme Court has held that burning the American flag as part of a public protest is a form of symbolic speech protected by the First Amendment.
True
T/F: The judiciary is an independent institution under Article III of the Constitution.
True
T/F: The only conclusive means of overruling a SC or federal court decisions is vis constitutional amendment.
True
What is obscenity?
Type of expression outside 1st amendment protection; However, the courts have adopted a narrow definition of obscenity so that most sexually oriented expression is constitutionally protected.
What is defamation?
Type of expression outside 1st amendment protection; Libel and slander, although it is difficult for public officials and other public figures to sue.
What are "fighting words"?
Type of expression outside 1st amendment protection; Utterances inherently likely to produce an immediate violent response from the party at whom they are directed.
Describe the case of New York Times vs. United States.
U.S. government could not block the publication of secret Department of Defense documents illegally furnished to the NYT by anti-war activists.
Describe the Warren Court after Everson vs. Board of Education.
Upheld some supports (busing and secular books to religious schools) as constitutional; Did not allow school prayer and Bible reading or state laws that banned the teaching of evolutionary theory.
What are the enumerate presidential powers?
Veto legislation; Appoint judges, ambassadors, and executive officials; Receive ambassadors and other public ministers; Commander in chief; Call Congress into special session; Negotiate treaties; Grant pardons and reprieves.
Which city has the highest density of lawyers in the country?
Washington D.C. with 1 for every 24 people.
Describe constitutional interpretation.
Whenever possible, courts rely on the plain meaning of the text, but meaning of many provisions is not self-evident; Courts often seek to discern the intentions of the framers; Rely heavily on precedent, the way in which courts past have interpreted.
How did the case of Zelman vs. Simmons-Harris conclude?
Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who the direct their aid to religious schools, the program is not readily subject to challenge under the Establishment Clause.
What was "Commentaries on the Laws of England"?
William Blackstone; Most important legal treatise ever written in the English language; Believed preservation of liberty required a widespread understanding of the law.
How has the SC modified the doctrine of presumptive constitutionality?
With respect to laws discriminating against citizens on grounds of race or national origin; Laws abridging fundamental rights are not afforded the traditional presumption of validity.
What is a majority opinion (opinion of the court)?
Written decision of the court that states the judgement of the majority and majority's legal reasoning; Chief Justice, if in the majority, will assign this opinion to someone in the majority.
What is libel?
Written falsehoods that lead to defamation of character; Being false AND damaging is key; Truth is an absolute defense.
Does the Free Exercise Clause prohibit polygamy?
Yes; Despite Mormon claims that it violated their beliefs; Court said that it destroyed the purity of marriage; Belief-conduct distinction.
