CHAPTER 1 I SOURCES OF THE LAW A COMMON LAW i Definition 1 An inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts The Common Law of the land Not necessarily written down ii History III Stare decisis IV Precedent 1 Developed in England Adopted from England by colonial America Also known as judge made law because back in the day judges had to make up laws since there weren t any 1 Let the decision stand A judge should resolve problems in the same way as it was resolved in the past 1 An established rule of law set by a previous case courts should follow precedent when it is advisable and possible 2 An earlier case that serves as an example to the case at hand Does not have to go with the same ruling however v Four options for handling precedents 1 Accept Follow a When a court accepts a prior court ruling as precedent it is adopting it and following it for guidance 1 2 Modify Update 3 Distinguish a Modifies the example case to fit today s standards Something that happened 70 years ago could have taken place in a different cultural setting a A court can distinguish a prior case and therefore chose not to accept it and not to follow it because it involves either different facts or different issues from the current case 4 Overrule a The court declares the prior decision to be wrong and thus no longer the law This only happens when there are changes in i Factual knowledge and circumstances ii Social mores and values iii Judges justices on the court VI Damages VII Case reporter VII Citation O Money awarded to the winning party in a civil suit typical remedy O A book containing a chronological collection of the opinions rendered by a single court for cases that were decided by the court An identification number for each case in the case reporter They reflect the name of the reporter in which the case can be found the 2 volume of that reporter and the page on which the case begins chan B EQUITY LAW i Definition II Judicial decrees C STATUTORY LAW i Definition 1 A system of jurisprudence in which courts are empowered to decide cases on the basis of equity or fairness 1 A statement of a court of equity A declaration of the court announcing the legal consequences of the facts found to be true by the court not by a yes or no response 2 Rulings under Equity Law are not tried with a jury Judges are free to decide based on what is right and fair to them a Created by elected legislative bodies at the local state and federal levels to anticipate problems that may affect large numbers of people ii Statutory construction iii Legislative intent a The process undertaken by courts to interpret or construe the meaning of statutes laws adopted by legislative bodies a What the legislature meant when they passed the law b Judges use this to determine a ruling not what they personally think the law should mean 3 D CONSTITUIONAL LAW i Definition a Written outline of the organization of a government that provides both the rights and responsibilities of various branches of the government and the limits of the power of the government ii Constitutions a A kind of yardstick against which all other actions of government must be measured to determine whether the actions are permissible b Tend to be short and infrequently amended iii State constitutions a Can give more rights to their citizens than are provided by the U S Constitution Can not reduce the roll back rights given by the federal iv Void for Vagueness Doctrine Terms for declaring something Constitution unconstitutional a A law will be declared unconstitutional and struck down if it is so vague that a person of reasonable and ordinary intelligence would not be able to tell from looking at its terms what speech is allowed and what speech is prohibited v Overbreadth Doctrine Terms for declaring something unconstitutional a The doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the same time b United States V Stevens 2010 E EXECUTIVE ORDERS AND ADMINISTRATIVE RULES 4 i Two streams a Orders issued by elected officers executive orders 1 Government executives president governors mayors etc have power to issue rules of law 1 Bush created many executive orders regarding the war b Rules generated by administrative agencies 1 Congress was being asked to resolve matters that went far beyond their realm of war treaties budgets and so on 2 FTC FCC ii Administrative agencies 1 An agency created and funded by congress whose members are appointed by the president and whose function is to administer specific legislation such as law regulating broadcasting and advertising 2 Deal with sets of problems too technical or too large for the legislative branch to handle iii Member criteria a Must be citizens of the U S and are appointed by the president b The single stipulation is that at any time no more than 3 of the 5 individuals can be from the same political party Senate must confirm the appointments iv Courts can overturn rulings unconstitutional 5 a If the original act that established the commission or agency is b If the commission or agency exceeds its authority c If the commission or agency violates its own rules d If there is no evidentiary bias whatsoever to support the rulings III THE JUDICIAL SYSTEM A FACT VERSUS THE LAW i Trial courts a Fact finding courts Courts of first instance b Where nearly all cases begin Trial courts are empowered to consider both the facts and the law in a case 1 Facts are what happened in the case 2 Law is what should be done because of the facts c Juries are allowed d Judge sits alone ii Appellate courts a Law reviewing courts b Consider only the law c Not obligated to hear every case d Never has a Jury e Panel of 3 or more judges B THE FEDERAL COURT SYSTEM i Types of cases a See page 18 ii The Supreme Court a Direct appeal 6 1 The statutorily granted right of an aggrieved party to carry the appeal of a case to the Supreme Court b Writ of Certiorari 1 A writ by which an appellant a person who applies to a higher court for a reversal of a decision made by a lower court seeks the review of a case by the U S Supreme Court When the writ is granted the court will order the lower court to send up the record of the case for review 2 Rule of four At least 4 Supreme Court Justices must agree to hear a case before a petition for a writ of certiorari will be granted c Hearing a case 1
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