The Sources of Law

Federalism

-Established by US Constitution -Means we have a federal and state government, and court system

Relationship Between Ethics and Law

-Ethics: an individual's standards or beliefs, based on moral principle of what is right or fair -Laws: generally reflect the basic moral principles shared by society *If something is legal, does that mean it is ethical? NO. -Moral Minimum: the minimal acceptable standard for ethical behavior is compliance with the law -Major Differences Between Law and Ethics: ethics are governed internally; law is governed externally

State Constitutions and Their Differences

-Every state has one -Longer and more complex than the US Constitution -Easier to change -Unless it conflicts with the US Constitution it is the supreme law of that state -US constitution is the minimum amount of rights people have--state can give you other rights as well -Michigan: there was a challenge to a law that prohibited road blocks; case eventually reached SC because it was considered a 4th Amendment Case. Under the trial court of Michigan, the Intermediate Appellate Court, and the Michigan State Court, the law was found valid. The USSC said it was not valid BUT that the state SC had the last say

American Law

-Everybody is responsible for their own legal case (i.e., you have to pay for your lawyer) -Acts/statutes can make exceptions to the American Rule and make the losing party pay all lawyer fees for both himself and the winning party

Individual Rights and Protections

-First ten amendments -Aka Bill of Rights

Administrative Law (4)

-Government independent agencies (SEC, EPA, ATF, FDA) that have ENABLING STATUTES which give them the power and authority to regulate rules and regulations AND the power to enforce them (however, the only punishment for not following them is usually a fine)

6th Amendment Due Process

-Impartial jury (in courtroom, decides innocence/guilt) -Right to counsel/lawyer (1963)--if you don't have one, one will be provided (only in CRIMINAL cases, not civil ones) -Speedy trial (one year) -Cross-examine witnesses against you -Right to be informed of the nature and cause of the accusation

Judicial Activists

-Judges who believe in a living Constitution -Start with founders' intent, BUT look to other things to help answer questions if necessary -Use Constitution as a template

Court Interpretation of Statutes

-Legislative History: help figure out what exactly the law was meaning -Common Law Background: look at previous cases in the past to help interpret statute

Due Process Rights

-Most basic rights -4th, 5th, 6th, and 8th amendments are the constitutional basis for due process rights -Definition: law is applied equally and fairly

Right to Privacy

-Not stated in Constitution--came about via case law (1) Olmstead v. US: "The makers of our Constitution . . . sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They confess, as against government, the right to be left alone." (2) Griswold v. Connecticut: old Connecticut law outlawed birth control and doctors' advice to use it. Dr. Griswold was sued for advising a patient to use birth control. He said that the law violated his 1st, 2nd, 3rd, 4th, 5th, and 9th Amendment rights and that the birth control law was unconstitutional. USSC ruled that the Connecticut law was unconstitutional (3) Row v. Wade: Roe wished to obtain an abortion but Texas forbade abortion unless the pregnancy was a threat to the health of the mother. Ruling was that Texas' law against abortion was an unconstitutional invasion on privacy

Gay Marriage

-Obergell v. Hodges (2015): Same Sex Marriage: Justice Kennedy said an interest in personal dignity is central to the due process clause of the 14th Amendment and that the Bill of Rights evolves -Dissent's opinion: said that the Constitution doesn't address this and that the court was inserting its own opinion

Social Host Law in Virginia

-Precedent is still that sere isn't liable -BUT it is obvious that a new precedent can and WILL be set if necessary

4th Amendment Due Process

-Protection from unreasonable search and seizure -No warrant shall be issued except under warrant of probable cause -Probable Cause: more than mere intuition; need articulable facts -"Plain Sight" Rule: if something is in plain sight (even if the police weren't there for it) they can seize it

Social Host

-Question: When you serve someone alcohol, are you liable for what happens? -1900s: if a server serves alcohol and a drunk hurts someone, the serve is not liable (pertinent to individuals) -Kelly v. Gwinnell: Gwinnell (server) gave alcohol to Jones, who ran over Kelly. Kelly sues Gwinnell and the trial court upheld precedent (server not liable). Appealed and eventually reached the Supreme Court, which through out the precedent and set a new one. -Sutter v. Hutchings: mother allowed daughter to have 16th birthday party. She bought the alcohol for the party and left, so she wasn't technically serving it. One friend of the daughter got drunk, left the party, and killed someone. The family of the victim sued mother and daughter. When the case reached the SC of Georgia, the state precedent was changed and the mother was considered a third party accomplice -Fassett v. DKE: at a rush party 18 year old came over and get drunk. One of them leaves and hits someone with their car. The victim sues the boy who hit him, the President of the university, the Treasurer of DKE, the 3 tenants of the apartment, and the national fraternity. At trial court, they through the case out, and it was appealed to the SC of Pennsylvania, where a new precedent was set. Everyone other than the national fraternity was found guilty (national fraternity had a policy against underage drinking)

5th Amendment Due Process

-Right against self-incrimination (especially in courtroom) -Jury cannot make assumptions if defendant doesn't take the stand, because it is their RIGHT not to -Forbids double jeopardy: can't be tried twice for the same crime (applies only to CRIMINAL cases, not civil ones) -Right to a grand jury investigation if you are being accused of a serious crime (i.e., a felony) -Grand Jury: NOT a courtroom jury. Grand jury is used only in criminal cases. Evidence is provided to them (evidence against the defendant) and they decide if there is probably cause to bring the case to court. Grand jury DOES NOT DECIDE GUILT OR INNOCENCE. Grand jury has power to issue an indictment (true bill) if they believe there is probably cause for a case to come to court -"Nor shall private property be taken for public use without JUST COMPENSATION"

Statutory Law (3)

-State legislatures make statutes -Statutes are more specific and make exceptions to the law -Act = multiple statutes -"Prohibited practices" = "substance section" of statute -"Individual action for damages or penalty" = "remedial section"

Strict Interpretalists/Constructionalists

-Strict judges that have a narrow interpretation of the Constitution -Ex: Scalia

Procedural Due Process

-The Bill of Rights contains provisions that are central to procedural due process. These provisions include the 4th, 5th, 6th, and 8th amendments -Definition: principle required by the Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard -The 5th (applies to federal government) and 14th (applies to state government) say "the government shall not deprive anyone of life, liberty, or property without due process of law)

Constitutional Law (1)

-US Constitution (1787): one of the oldest still alive constitutions in the world; still active because it is so vague (4400 words) -Gives federal government power 1. Federalism 2. System of Checks and Balances 3. Individual Rights and Protections 4. Judicial Review

Types of Law

1. Constitutional 2. Common Law 3. Statutory/Administrative 4. Administrative Regulations

Three Categories of Law

1. Duty (ex: duty of care) 2. Obligation (ex: "accepting" terms and conditions) 3. Rights (ex: right to privacy)

Levels of State Court

1. State Supreme Court 2. Intermediate Appellate Court 3. Trial Courts 4. Circuit Courts 5. General District Courts *Courts on the same level (for example, two circuit courts) can make different rulings

What is a Case?

1. Style 2. Identifying Factors 3. Statement of Facts 4. Verdict/Result at Trial 5. Issues Presented 6. Precedent 7. Analysis/Rationale 8. The Holding/Result on Appeal *Not everything that comes in at trial is included in the statement of facts (3); only what the judge found pertinent to the case -Also includes: parties involved, procedural history (who won at the court below), the legal issue (what fact/circumstance is at issue that will be the deciding factor in how the court rules on the case), reasoning/analysis, rule of law, holding (conclusion of court; either affirms prior precedent or sets a new precedent) ***Under common law, the rule of law is PRECEDENT

Priority of Law

1. US Constitution: foundation for all other laws; supreme law of the land; all federal and state laws are measured against it 2. Federal Statutes/Administrative Regulations (FDA, SEC, EPA 3. State Constitutions 4. State Statutes (State Laws) 5. Local Ordinances/Laws

Levels of Federal Court

1. USSC 2. US Court of Appeals (Circuits) 3. District Courts (Trial Courts)

Conflict Created by the Theories of Interpretation

A. Right to Bear Arms B. Same Sex Marriage C. Freedom of Speech D. Right to Privacy

Stare Decisis

A. The Rule: stare decisis requires a judge to decide a case by referring to prior cases with the same or similar facts and issues (PRECEDENT) B. Critical Aspects: (1) Decisions made by a HIGHER COURT (NOT a parallel court) are binding on lower courts, (2) A court should not overturn precedent unless there is a strong reason to do so (ex: technologies change) ***Stare Decisis does NOT look backwards, only forward (don't rejudge prior cases)

Judicial Review

Definition: A court's authority to review a law enacted by an executive or legislative branch AND to invalidate that act if it is contrary to constitutional principles A. Supremacy Clause: Article VI, Clause 2 state, "This Constitution, and the laws of the US . . . shall be the supreme law of the land . . . judges in every state shall bound -Problem: Supremacy Clause gave STATE judges judicial review over STATE law, not FEDERAL law B. Marbury v. Madison (1803): Adams leaving office; issued justice of peace commissions and circuit judge commissions but several were not delivered (Marbury's); Jefferson administration doesn't give the commission to him so Marbury sues under the Judiciary Act of 1793; Marshall issues a holding saying that the USSC can't make Jefferson administration give Marbury his commission. He said that the Judiciary Act was unconstitutional, giving up the power of the Judiciary Act but securing the power of judicial review of federal laws for the Supreme Court -Judiciary Act of 1793: USSC gave power to issue a writ of mandamus (basically forces administration to do their job) C. Judicial Restraint: a court does not sit in judgement of the motives or wisdom of legislators; judges must presume legislation is valid at the commencement of a trial (so when you go in to challenge a law it is a burden because it is assumed to be constitutional from the beginning--your job is to prove that it is not)

Common Law (2)

Definition: judge made/case law; major part of our law and makes us distinct from other countries because we have a common law system whereas most other countries have a civil law system (based on following code/written law only) *Jefferson hated common law because it created ex post facto law (law became law after the act)

1st Amendment

Free speech/right to protest

Criminal Case

Government vs. a person

Per Se Negligent

If you serve someone under age alcohol, you will be found liable

Purpose of Law

Order, control, stability, create personal freedoms

8th Amendment Due Process

Protection against cruel and unusual punishment

3rd Amendment

Quartering of soldiers

5th Amendment

Right against self-incrimination

6th Amendment

Right to a fair trial

2nd Amendment

Right to bear arms

8th Amendment

Rights against cruel and unusual punishment

7th Amendment

Rights in civil cases

9th Amendment

Rights retained by the people

4th Amendment

Search and seizure

Amendment 14

State Due Process

10th Amendment

States' rights (all powers the Constitution neither gives exclusively to the federal government nor takes from the states are reserved for the states)

Law

The body of official rules and regulations generally found in constitutions, legislations, judicial opinion, as well as other instruments used to govern society and control the behavior of its members

Civil Case

Two people vs. each other

Right to Bear Arms

(1) US v. Cruikshank: Illinois state stature banned ownership of handguns. People challenged it under the 2nd Amendment. Illinois SC said that only applied to federal government and that states can do whatever they want (2) Presser v. Illinois: added new ban (statute) against the formation/parade of militias. Sued under the 2nd Amendment, but ruling was that states can do what they want, so Presser lost (3) US v. Miller: Challenged law dealing with the 1934 National Firearms Act (regulation of guns). When it reached the SC, they said the law was okay. Court ruled that the rights of states to form militias, not the right of individuals to own guns, were the focus of the 2nd Amendment (4) DC v. Heller: most important 2nd Amendment case. DC law prohibited handguns. Court held the law was unconstitutional and that you can't ban handguns and that the right to own guns was a fundamental right under the 14th Amendment. Said that the 14th Amendment made the 2nd Amendment something states have to abide by (5) McDonald v. Chicago: dealt with a state statute banning handguns. Reached SC where they said that under Heller, the state statute was not constitutional bc of the 14th Amendment. HOWEVER, also said that the 14th Amendment only applies to certain handgun laws, so we will see where it goes . . .

Civil Law System

-1150: not written down; judge-made law -13th century: written down in what is called a case"

Freedom of Speech (1st Amendment)

-Citizens United v Federal Election Commission: brought forward Bipartisan Act (limits on amount of money corporations can give to campaigns). Act was found unconstitutional because it violated 1st Amendment rights to free speech -Super-packs -Nation-wide movement trying to bring about change

System of Checks and Balances

-Created because of worry that one branch of government would try to take over -Congress passes law, President as power to veto it OR sign it; Congress can override veto with 2/3 vote

Due Process and University Students

-Due process for university students did not exist until 1961--universities stood in "loco parentis" (basically were your parents) -A case eventually reached USSC, and they ruled that universities owe students due process