MCOM 3320: MCOM Law Unit 1 Exam

Common Law (Oldest)

"Made by" judges, Precedents direct decisions, Primary doctrine = "Stare decisis" = LET THE DECISION STAND. (Don't change anything!) Provides remedies after fact. Perpetuates principles and Judge has only 4 choices #1 Accept the earlier precedent. #2 Modify the precedent. #3 Can distinguish the precedent from the current case. #4 Overrule the precedent. LIMITATIONS: Only provide remedies after the case is over.

Certiorari

"Rule of Four" Supreme court chooses what cases they will hear. 4 justices have to agree that the case is worth their time.

Texas v. Johnson (1989)

Struck down Texas law that banned flag burning, which is a protected form of symbolic speech.

Originalists

Supreme Court justices who interpret the Constitution according to the perceived intent of its framers.

Chaplinsky v. New Hampshire (1942)

The Court ruled that the first amendment did not protect "fighting words."

Near v. Minnesota (1931)

The Supreme Court decision holding that the First Amendment protects newspapers from prior restraint.

USA PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism.

Chilling effect

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right.

Judicial review

The power of the courts to determine the meaning of the Constitution and to decide whether laws violate the Constitution.

Discovery

The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.

Government regulations that target the content of speech because of government disfavor with the ideas expressed are called ______.

viewpoint-based and content-based

fighting words

words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence

appeal

To ask a higher court to review the decision and determine if justice was done. (Managed bt 13 circuits)

affirm

To declare that a court ruling is valid and must stand.

Quash

To void or nullify a legal procedure or action; a motion often made in response to subpoenas for confidential information

"Stare decisis" means "let the decision stand."

True

An unsigned opinion of the U.S. Supreme Court is called a per curiam opinion.

True

Political questions fall outside the power of the judicial system.

True

Hazelwood v. Kuhlmeier

U.S. Supreme Court case that determined that the First Amendment does not protect all types of student speech in school

Yates v. U.S. (1957)

a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a "clear and present danger."

Aristotle saw the law as ______.

a human intervention

categorical balancing

a judge's or court's practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create rules that may be applied in later cases with similar facts

A traditional public forum is ______.

a public property that is held in trust for the public to use for assembly and communication

Criminal Law

a system of law concerned with the punishment of those who commit crimes. ALL CRIMINAL LAW IS STATUTORY.

tort

a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.

Defendant (Respondent)

an individual, company, or institution sued or accused in a court of law.

memorandum order

announces the vote without giving an opinion

The Supreme Court has ruled that the First Amendment ______.

applies to both state and federal legislatures

Under the First Amendment, prior restraints by the government ______.

are a last resort of the most extreme nature

The two methods to amend the U.S. Constitution ______.

are difficult and time-consuming

discretion

good judgement

prior restraint

government censorship of information before it is published or broadcast

The common law is ______.

judge made law

Stare decisis describes the doctrine that ______.

lower courts should follow precedents established by higher courts

The principle of federalism ______.

makes the states and the federal government mutually independent

The key difference between primary and secondary legal sources is that ________.

primary sources are the actual documents that make up the law

Doctrines

principles; teachings; beliefs

The First Amendment ______.

protects a range of rights

In equity law, judges ______.

provide remedies and relief for a variety of harms

deference

respect; consideration

concurring opinion

statements in which justices agree with the decision but not the reasoning of a courts opinion..

Thornhill v. Alabama (1940)

strikes by unions were not unlawful

All federal laws ______.

supersede state laws

Brandenburg v. Ohio (1969)

1st and 14th Amendments protected speech advocating violence at KKK rally unless it directed or produced "imminent lawless action" (Warren Court)

Miami Herald v. Tornillo

A 1974 case in which the Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized, illustrating the limited power of government to restrict the print media.

Time/place/manner laws

A First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also, the laws that regulate these conditions.

Sixth Amendment

A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial.

Fourteenth Amendment

A constitutional amendment giving full rights of citizenship to all people born or naturalized in the United States, except for American Indians.

per curiam decision

A court decision without an explanation--in other words, without an opinion

ad hoc balancing

A judicial weighing, case by case, of reasons for and against publishing to determine whether expression may be halted or punished. Ad hoc balancing is flexible but unpredictable because it relies little on previous cases or set standards.

Demurrer

A motion to dismiss a case because the claim is legally insufficient.

dissenting opinion

A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion

amicus brief

A submission to the court from an amicus curiae, or "friend of the court," an interested individual or organization who is not party in the case.

Federalism

A system in which power is divided between the national and state governments

Content based

A term used to describe government actions prompted by the ideas, subject matter or position of the message.

O'Brien test

A three-part test used to determine whether a content-neutral law is constitutional.

overbroad law

Addresses the problem but impacts select people in a bad way. COURTS DON'T LIKE

writ of certiorari

An order by a higher court directing a lower court to send up a case for review

precedent

Analysis / Conclusion

Rule of Four

At least four justices of the Supreme Court must vote to consider a case before it can be heard

Clear and Present Danger

Government can interfere with speech if it will lead to evil or illegal acts.

Viewpoint-based discrimination

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally.

Tinker v. Des Moines (1969)

Guaranteed a student's right to protest (wearing armbands).

Textualists believe that interpretation of the Constitution should be guided by ______.

the Constitution's own language

Absolutist Theory

the First Amendment presents an absolute or complete barrier to government censorship. The government cannot censor the press for any reason. No exceptions, no caveats, no qualifications.

Defamation

the action of damaging the good reputation of someone; slander or libel.

Due Process

the administration of justice according to established rules and principles; 5th and 14th Amendment

burden of proof

the obligation to present evidence to support one's claim

court's opinion

the official opinion of an appellate court that states the reasons or rationale for a decision

When employing ad hoc balancing, judges make decisions based on ______.

the particulars of the specific case facts

Statutory construction is the term used to describe ______.

the role of the courts in determining the meaning and application of laws

Civil Law

the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.

distinguish from/between

to differentiate, point out the difference

New York Times v. US (1971)

NY Times acquired a stolen copy of Pentagon Papers. Prior Restraint. Overruled Nixon's attempt to prevent publication of Vietnam documents

de novo

New Trial by different tribunal (court and jury).

Rule of Law

No one is above the law

Schenck v. US (1919)

Oliver Wendell Holmes; clear and present danger test; shouting "fire" in a crowded theater; limits on speech, esp. in wartime.

Plaintiff

One who begins a lawsuit

Political questions

Questions not subject to judicial review because they fall into areas properly handled by another branch of government.

Bigelow v. Virginia (1975)

SC reversed the conviction of a newspaper editor for running an adv. offering abortion services, ruling that SPEECH DOES NOT LOSE ITS FIRST AMENDMENT PROTECTION JUST BECAUSE IT APPEARS IN THE FORM OF A COMMERCIAL ADVERTISEMENT.

Negligence

Generally, the failure to exercise reasonable or ordinary care.

Seditious libel

Communication meant to incite people to change the government; criticism of the government.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the 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.

Gitlow v. New York (1925)

Established precedent of federalizing Bill of Rights (applying them to the states); states cannot deny freedom of speech --protected through due process clause of Amendment 14. Red Scare

Access Theory

Everyone has right to access mass media Right to speak/publish not just for rich Media required to present all points of view Applied to broadcasting & cable NOT applied to print

Among the three branches of government, the executive branch is supreme.

False

Each court in the United States has a discrete area of jurisdiction that prevents multiple courts from having authority to hear the same case.

False

Statutes may be enacted by legislatures at the federal level only.

False

content neutral

Free speech doctrine that allows certain types of regulation of speech, as long as the restriction does not favor one side or another of a controversy.

Administrative Law

Generally deals with technical fields where rules are written by "expert" agencies. "Rules" have force of law. May be challenged on 4 grounds: 1. Act establishing agency unconstitutional. 2. Agency exceeds authority. 3. Agency violates own rules. 4. No evidence supports rule.

voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

Statutory Law

Law passed by the U.S. Congress or state legislatures

Black Letter Law

Lawyers' slang for the basic, well-established rules of law.

stare decisis

Let the decision stand; decisions are based on precedents from previous cases

en banc

Literally, "on the bench" but now meaning "in full court. A procedure in which all the members of a U.S. court of appeals hear and decide a case.

Venire

Literally, "to come" or "to appear"; the term used for the location from which a court draws its pool of potential jurors, who must then appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn.

Lovell v. Griffin (1938)

Lovell was imprisoned for 50 days for not paying a fine for violating a city ordinance. Lovell violated the ordinance by distributing pamphlets without a permit. Court ruled the ordinance violated the 1st and 14th Amendments. Freedom of the press means any kind of press, whether it is distributed or a publication.

vague laws

either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

Constitutional Law

establishes the framework of the state whose purpose is to protect property in its broadest sense

Meiklejohnian Theory

expression that relates to the self-governing process must be protected absolutely by the First Amendment. Presents a hierarchical approach to First Amendment theory, with political speech placed at the top of this hierarchy.