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| "we let the prior decision stand" - precedents, pyramid of court decisions and how they bind one another |
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| Have a strong presumption in favor of past decisions but we do see decisions overturned (landmark cases) |
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| Courts on same level in different states |
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| Not really clear, usually try not to contradict one another |
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| Higher courts set precedents that are binding to lower courts |
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| Why care about precedents? |
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Definition
- Stability - any change causes output of energy or friction (continuity and cohesion)
- Protection of reliance - we want to be able to trust the law and rely on it
- Efficiency - judges can look to past decisions to reduce workload
- Equality - equal treatment of similar situations
- The image of justice - must appear consistent to avoid doubt or uncooperative relations with law
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| 4 Misguided approaches to statutory interpretation |
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Definition
- Literalism
- The golden rule
- Canons of statutory construction
- Legislative intent
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| "of the same kind" - determines what is covered |
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| "it is known by its associates" - words are affected by context |
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"sign interpretation" what does each word mean in dictionary, try to make sense of words and sentences
most straightforward and strongest
must match, must not match, might match, might not match |
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| intention of legislature (look to protocols of Congress, speeches, letters) what did person who installed it want? |
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| did historical interpretations work? (soft version of precedent - example we can learn from) |
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| don't compare to past, compare to another society |
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| related to legal system, where does law appear in context? this tells you about what the law means and where it applies |
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| interpretation of the law by what it is trying to achieve. what is the purpose of the law, what does society want? ex: jaywalking without cars |
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Everyone has the right to change his religious beliefs
Saudia Arabia abstained - conflict with Sharia law |
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| Equal marraige rights - Saudi Arabia abstained |
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| Right to free movement into and out of country - Soviet Bloc nations opposed |
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| Compulsory public education - some countries can't afford to educate all |
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| Women's rights some countries oppose |
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Term
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| Legislative power vested in congress, divided into senate and house of representatives. Congress has power with money and taxes and right to declare war |
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| Executive power vested in president, serve 4 year term, president is commander in chief of army and navy, make treaties with 2/3 senate approval, |
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| judicial power vested in one supreme court and some inferior court established by supreme court |
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each state shall credit other states’ judicial proceedings. Congress may make rules governing these proceedings. A person cannot flee to another state to avoid charges. No new states can be made within states or combining states without the approval of Congress |
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| Amendments to constitution can be proposed when 2/3 both houses or 2/3 states deem necessary, ratified with 3/4 vote |
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| constitution is binding to all representatives of govt. and is supreme law of the land. no religious test is required to hold office |
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| Ratification of 9 states sufficient to establish constitution |
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| congress shall make no law respecting establishment of religion or prohibiting free exercise of, or abridging freedom of speech, freedom of the press, or right of peaceful assembly, or petition of govt. to address grievances |
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| a well regulated militia is necessary to the security of the state. the right of people to keep and bear arms shall not be infringed |
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| no soldier shall in time of peace be quartered in any house without consent of owner, nor in time of war unless prescribed by war |
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| prohibits unreasonable searches and seizures and sets out requirements for search warrants based on probable cause |
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| protects against self incrimination and double jeopardy, guarantees right to due process, grand jury screening and compensation for seizure of private property under eminent domain |
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| protects right to fair and speedy public trial by jury, including rights to be notified of accusations, confront accuser, obtain witnesses and retain counsel |
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| guarantees jury trials in federal civil cases of amounts more than $20. prohibits judges from overruling findings of a jury in federal civil trials |
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| prohibits excessive fines and excessive bail and cruel and unusual punishment |
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| protects rights not enumerated in constitution |
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| rights not given to federal govt in constitution are left to states |
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| abolishes slavery and involuntary servitude |
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| amelioration of condition wounded and sick |
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| amelioration of condition of wounded, sick and shipwrecked |
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| relative to treatment of prisoners of war |
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| relative to protection of civilians in time of war |
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| article 2 geneva convetion |
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Definition
| applicable to all cases of international conflict |
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Term
| article 3 geneva convention |
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Definition
| applicable to non-international armed conflict |
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Term
| protocol 1 geneva conventions |
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Definition
| relation to protection of victims of international armed conflict |
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Term
| protocol 2 geneva conventions |
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Definition
| protection of victims of non-international armed conflict |
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| protocol 3 geneva convention |
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Definition
| adoption of international distinctive emblem |
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Term
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"On Crimes and Punishment" 1764
Two key theories: social contract and utility
punishment justified by social contract and should do good for society
death penalty is not most useful to greatest number
capital punishment only justified in times of war |
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Term
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Definition
- special deterrence
- general deterrence
- rehabilitation
- retribution
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(1912-1984)
"Justice"
Laws get validity from coming about in good way
Justice can be determined by equality, work, need, merit, law, status
formal justice: essentially similar things should be treated the same way |
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Term
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Definition
was religious but abandoned beliefs after war
"A Theory of Justice" 1971
veil of ignorance
two principles of justice: principle of liberty
principle of equality
all social values should be distributed equally unless unequal distribution benefits the least the most |
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| finding central issue in a dispute and then finding arguments to address it |
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| process - is the procedural minimum for accusation/decision fulfilled |
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| act is demanded by another norm system |
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| i am guilty but you have no interest in punishing me (blackmail) |
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| connect act to norm system, is act justified by other norms in norm system |
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| connect norm system to person |
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| connect act to person (not responsible for actions) |
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| connect act to person (did not commit, somone else did) |
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- Quantity: as informative as required, not more so
- Quality: don't say something you believe is false or dont have enough evidence for
- Relation: be relevant in conversation
- Manner: avoid ambiguity and obscurity, be brief and orderly
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Term
| conversational implicature |
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| something is implied and inferred (must be understood) |
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Term
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Definition
cannot be resolved through argumentation
not subject to rational resolution
people have such different belief sets and world views that they cannot be changed even if both parites accept and understand everything the other is saying
people don't have the same datum (toulmin) |
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Term
| alternatives to deep disagreement |
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Definition
- advertising
- threat/bribe/negotiation
- ignore
- violence
- outsource/mediation
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