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| Analytical School of Jurisprudence |
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Definition
Law is shaped by logic. Results are reached by application of logic to the facts of a case. Emphasis is on logic of the result, rather than how the result is reached.
CN: Some technology doesn't really have a precedent that applies. So, judges use logical reasoning. Ex: relating cable television laws to internet issues. |
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| The first 10 amendments to the Constitution that were added in 1791. |
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| Court of Equity (or equity court) |
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Definition
Established under the authority of the Lord Chancellor because the law courts sometimes had unfair results and limited remedy. The Chancellor's remedies/decisions took precedence over the r/d of the law courts. They were called "equitable remedies" because they were shaped to fit each situation.
CN: equity was to do what was fair and just. If the remedy was adequate you have no equitable remedy. Injunctions are equitable; making someone honor a contract is an equitable remedy. We use equity today; most states now combine equity and law courts. |
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| Ensures that no one branch of the federal government becomes too powerful. Judicial Branch has authority to examine whether the Leg. and Exec. acts are constitutional. Executive can only enter into treaties with the consent of the Senate. Legislative can enact statutes to change judicially made law, and is authorized to create federal courts and determine their jurisdiction. |
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| Romano-Germanic system dating to 450 BC. The Roman law, Napoleonic Code, and the German Civil code became models for coutries that adopted civil codes. The Civil code and parliamentary statutes are the sole sources of law in civil law countries (Austria, Japan, Turkey among others.) The US follows Anglo-American COMMON law- our laws are created by the judicial system, as well as by congressional legislation. |
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| Statutes enacted by federal and state legislatures and which are organized by topics into code books. Ordinances are also codified (organized by topics and put into code books). |
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| Command School of Jurisprudence |
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The law is a set of rules developed and enforced by the ruling party. Law changes when the ruling party changes.
Ruling party - the social class. Keeps the status quo. |
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| Article I, Section 8, clause 3 of the USC that grants Congress the power "to regulate commerce with foreign nations, and among the several states" [interstate commerce]. It has a greater impact on business than any other provision in the USC. |
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| Advertisements have limited protection under Freedom of Speech, and may be regulated as to time, place, and manner. |
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Developed by judges who issued their opinions when deciding a case. Their opinions became precedent for similar, future cases. English Common law forms the basis of the legal systems of most US States. Louisiana bases its law on the French Civil Code (Napoleonic).
CN: Common Law is still used in TORTS (personal injury) and CONTRACT LAW. |
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| The Supreme Law of the US (as long as it is not an issue that is delegated to the states). Any federal, state, or local law that conflicts with the US Constitution cannot be enforced. The Constitution establishes the structure of the federal government, delegates powers to the federal government, and guarantees certain fundamental rights. Powers that the US Constitution does not give to the federal government are reserved to the states. |
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| critical legal studies school |
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Definition
Legal rules are unnecessary, and disputes should be solved by applying arbitrary rules based on fairness. Leads to subjective decision making by judges.
Followers of the theory are called "crits." They also believe that laws are used as an obstacle by the powerful in order to maintain the status quo.
CN: the Napoleonic Code would fall under here. Napoleonic code is based on the parties in front of the judge; not prior precedent. Similar situation in people who hold the critical legal studies theory. |
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Term
| delegated (enumerated) powers |
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Definition
The states delegated certain powers, called enumerative powers, to the federal government. The states authorized the federal govt. to deal with national and international affairs. For example, the states delegated to the federal government the power to regulate commerce and provide for national defense.
CN: Delegated (enumerated) Powers
p485 USC Article 1 Section 8
• The states delegated certain powers to the feds
borrow money
regulate commerce
national defense
• Amendment 9 (p491)
enumerated powers |
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| (5th and 14th Amendments) Provides that no person shall be deprived of "life, liberty, or property" without due process. |
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| (14th Amend.) Prohibits the government from enacting laws that classify and treat "similarly situated" persons differently. The standard is not absolute and the govt can treat persons differently in different situations. |
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| 1st Amendment under Freedom of Religion. Prohibits the government from establishing a state religion or promoting one religion over another. |
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| The executive branch has the power to enforce the law. The President and state governors are examples of the executive branch of government. |
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The Commerce Clause and other provisions of the USC empower the US Congress to enact federal statutes to regulate foreign and interstate commerce.
Include: antitrust laws, securities laws, bankruptcy, labor laws, equal employment opportunity laws, environmental protection laws, consumer protection laws, etc. |
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| the US form of government, where the federal government and the 50 state governments share powers. |
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| Federalist form of government |
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• power is shared between the federal government and the states
• Amendment 10
sharing of power – federalism |
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| Part of 1st Amendment - Freedom of Religion. Prohibits the government from interfering with the free exercise of religion. |
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| 1st Amend. The right to engage in oral, written, and symbolic speech. It protects speech only, NOT conduct. USSC categorizes speech as 1) fully protected, 2) limited protection, and 3) unprotected. |
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| Speech that the government cannot prohibit or regulate. Oral, written, and symbolic political speech are fully protected. |
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| Historical School of Jurisprudence |
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Definition
the law is an aggregate (collection) of social traditions and customs. Looks to precedent to solve contemporary problems. Changes in society will gradually be reflected in the law.
CN: Common Law is rooted in the Historical School. |
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| Intermediate Scrutiny Test |
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Definition
| Applies to other protected classes (e.g. sex, age). (One of three tests the USSC applies to see if the EPC has been violated.) |
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| Commerce clause gives the federal govt power to regulate commerce between the states and commerce that AFFECTS interstate commerce. |
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| Commerce clause gives the federal govt. power to regulate local (intrastate) commerce that has an EFFECT on interstate commerce. |
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| Has the power to interpret the law and determine its validity. |
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| A ruling about an individual lawsuit issued by federal and state courts. |
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| the philosophy or science of the law |
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| 5th Amendment. JCC is a part of Procedural Due process. The government must pay the owner just (fair) compensation for taking property. |
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that which must be obeyed and followed by citizens subject to sanctions or legal conseqences; a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.
law consists of rules that regulate the conduct of individuals, businesses, and other organizations within society. They are intended to protect people and their property from unwanted interference from others and forbid certain activities. |
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| Central concern of legal decision-making should be to promote market efficiency. Ex: using cost-benefit analysis in determining the passage of legislation and the outcome of lawsuits. Also called the "Chicago School" because it originated at the Univ. of Chicago. |
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| In order to provide a uniform system of law in England, judges were appointed to administer the law in a uniform manner. The law emphasized legal procedure and form instead of the merits of each case. The only relief available in law courts was a monetary award for damages. |
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| Congress: the Senate and House of Representatives. An example on the local level: Board of Alderman, County Council. They write new statutes and laws. |
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| Types of speech that are subject to governmental time, place, and manner restrictions. Offensive and Commercial speech are limited protection speech. |
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| Merchants across Europe developed rules, called the "law of merchants" to solve their commercial disputes. The merchant court was established to administer these rules. |
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The law is based on what is "correct." Emphasizes a moral theory of law; law should be based on morality and ethics. People "discover" natural law through reasoning and choosing between good and evil. The US Constitution, Magna Carta, and UN Charter reflect this theory.
CN: "higher moral duty than man-made law." |
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| Speech that the average person in the community would find sexually explicit and lacks literary, artistic, political, or scientific value. Unprotected speech. |
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| Speech that offends many members of society, and can be regulated as to time, place, and manner. |
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| State legislatures empower local governmental bodies (such as cities, school districts, water districts) to adopt ordinances. Examples of ordinances are: traffic laws, local building codes, and zoning laws. Ordinances are codified. |
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| The powers reserved to the states to regulate commerce. Permits states to enact public health, safety, morals, and general welfare laws. |
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| The concept of federal law taking precedence over state or local law. |
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| The government must give a person proper NOTICE and HEARING before the person is deprived of his life, liberty, or property. An owner must be paid JUST COMPENSATION if the government takes his or her property. |
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| Applies to government classifications that do not involve a suspect or protected class. (EPC test) |
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| The first three Articles of the Constitution that divides the federal government into three branches. Article 1 establishes the Legislative Branch. Article 2 establishes the Executive. Article 3 establishes the judicial. |
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Law is a means of advancing society. Purpose of law is to shape social behavior. Followers: 1) are called realists. 2) may not adhere to precedent.
Brown v. Board of Education - shaped society's behavior. |
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| Means "to stand by the decision;" it is adherence to precedent. It promotes uniformity of law within a jurisdiction, and makes the law more predictable. |
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| State legislatures enact state statutes that include corporation laws, partnership laws, workers' compensation laws, the Uniform Commercial Code, etc. |
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| Written laws enacted by the federal and state legislatures that establish certain courses of conduct to which covered parties must adhere. |
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| Applies to suspect classes (e.g., race, national origin). (EPC Test) |
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| Laws must be clear and not overly broad in scope. Laws that do not meet this test are void for vagueness. |
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| Article 6, Section 2 of the USC establishes that the USC, treaties, federal laws, and federal regulations are the supreme law of the land, but it is only on topics where the federal government has the AUTHORITY to write the laws. |
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| Compacts made between two or more nations. The President can enter into a treaty with a foreign government with the advice and consent of the Senate. Treaties become part of the Supreme law of the land; so, the Constitution and Treaties take precedence over all other laws. |
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| Speech that is not protected by the Freedom of Speech Clause, and may be forbidden by the government: dangerous speech, fighting words, speech that advocates violent overthrow of the government, defamatory language, child porn, and obscene speech. |
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US and state constitutions, treaties, federal and state statutes and ordinances (codified law), administrative agency rules and regulations, executive orders, and judicial decisions by federal and state courts.
US law is based primarily on English common law, but other legal systems, like the Spanish and French civil law also influenced it. |
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| Brown v. Board of Education |
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Definition
| (1954) Overturned the "separate but equal" doctrine, saying it violated the Equal Protection Clause of the 14th Amendment. |
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| Structure of U.S. Government |
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Definition
| US Constitution established three branches of government, and gave each branch the following powers. The Legislative branch: Congress (the House and Senate) makes new statutes and laws. The Executive branch (the President) enforces the laws. The judicial branch (the courts) interprets the validity of the laws. |
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