Law and Ethics- Chapter 1 and 2
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Establishes important legal principles
Not designed to specifically resolve every legal issue or case
May require “interpretation” by courts
Exists at state and federal levels
establishes a structure for federal and state govt (including qualifications of certain offices and positions) and rules for amending the constitution
granting specific powers for different branches of govt
providing procedural protections for US citizens from wringful govt actions
statutes at the local level
Ex. zoning, and health and safety regulations
codes or consolidated statutes
Created by a legislative body
- Approved or disapproved by the
- executive branch
- (i.e., governor or president)
Also known as “codes”
Source of law that regulates the exercise of authority by executive branch agencies and independent government agencies
Also known as “regulations”
Made by appellate courts (law that has not specifically been passed by the legislature)
Based on the fundamentals of previous cases with similar facts
Also known as "case law" using precedents
The doctrine of stare decisis
one of the most important concepts in American law, is the principle that similar cases with similar facts and issues should have the same judicial outcome.
Requires all lower courts, such as a trial court, to follow the case precedent so that any similar case would be decided according to the precedent.
Article I of the constitution
Establishes the legislative branch (A Congress composed of the House of Representatives and the Senate); sets qualifications for members; grants congressional powers (lawmaking).
Article II of the constitution
Establishes the executive branch (president); sets qualifications for the presidency; grants executive powers (enforcement of laws).
Article III of the constitution
Establishes the judicial branch with a federal system of courts, including a Supreme Court; grants certain judicial powers.
Article IV of the constitution
Establishes the relationship between the states and the federal government; describes how to admit new states to the Union.
Article V of the constitution
Describes the process for amending the Constitution.
Article VI of the constitution
Establishes the Constitution and federal law as the supreme law of the United States over any conflicting state law; authorizes the national debt (Congress may borrow money); public officials must take an oath to support the Constitution.
Article VII of the constitution
Lists the requirements for ratification of the Constitution.
Congress has the express constitutional authority to regulate:
- (1) channels of interstate commerce such as railways and highways
- (2) the instrumentalities of interstate commerce such as vehicles used in shipping
- (3) the articles moving in interstate commerc
Necessary and proper clause
Congress may also place conditions on the use of federal money in order to achieve some public policy objective.
Congress generally cites the Necessary and Proper Clause as authorization to set conditions on the spending.
The 1st Amendment
Congress shall make no law
That allows government encroachment in the areas of religion, press, speech, assembly, and petition of grievances
The 4th Amendment
The U.S. Supreme Court has systematically applied a reasonableness test to define the limits of when the government may search without a warrant based on probable cause that criminal activity is possible.
The 5th Amendment
This amendment does not apply to corporate entities when the government is seeking certain business records, individual corporate officers and employees are entitled to Fifth Amendment protection when facing a criminal investigation.
The 14th Amendment
Makes the Bill of Rights applicable to the states.
the science and philosophy of law, defines several schools of thought that re used to describe various approaches to the appropriate function of law and howlegal doctrines should be developed and applied.
body of rules of action or conduct prescribed by controlling authority, and having legal binding force.
Blacks Law Dictionary
authoritative source for legal terms
Statute of limitations
a fixed time period for which to assert legal rights
Federal statutes of limitations
claim of discrimination must be filed within 180 days from the time of the event of discrimination
Secondary sources of law
a collection of uniform legal principles focused in a particular area of traditionally state law called restatements of the law, and various sets of model state statutes drafted by legal experts as a model for state legislatures to adopt in their individual jurisdictions.
have NO INDEPENDEN AUTHORITY or LEGALLY binding effect.
state legislatures and courts are free to adopt all, part of or to reject secondary sources of law.
Hierarchy of primary sources of federal and state law
- US Constition
- Federal statutes and international agreements
- Federal administrative law
- Federal Common law
- state constitution
- state statutory law
- state administrative law
- state common law
Federal govt has only LIMITED powers to regulate individuals and businesses. Their power must be specifically granted by the constitution. Ex: collect taxes
states are thought of as having more inherent powers to protect citizenry's health, safely and general welfare (also reffered to as the state's "police powers") with only general constitutional authorization.
Constitution has 3 general functions
- 1. Establishing a structure for the federal govt Iincluding qualifications for certain govt offices) and rules for ammending the constitution
- 2. granting specific powers for the different branches of govt
- 3. providing procedural protections for US citizens from wrongful govt actions
Structure of the constitution
- Preamble- broad objectives
- 7 articles- powers and procedures
- 27 amendments
the legal authority that a court must have before it can hear a case
Bill of rights
the first ten amendments (added in 1791)
Powers granted to the three branches of govt in the constitution
Seperation of powers
President is granted the power to 1. carry out laws made by congress, 2. be the commander in chief of the armed forces, 3. enter into a treaty (subject to approval by the Senate) and to carry out foreign policy, 4 appoint federal judges and officers (also subject to Senate approval)
Congress is given the power to regulate commerce among the several states
a key use of the federal commerce power has been in the area of civil rights legislation (banning discrimination in places of public accomodation)
Congress has the express constitutional authority to regulate 1. Channels of interstate commerce such as railways and highways, 2. the instrumentalities of interstate commerce such as vehicles used in shipping and 3. the articles moving in interstate commerce
congress has the power to regulate the activity so long as it has a substantial economic effect on interstate commerce
prohibits any business engaged in interstate commerce from firing their employees for reporting safety violations.
Non commercial activity and the commerce clause
can be applicable where the court has used increased levels of scrutiny to be suer that the activity that congress seeks to regulate has a sufficient connection to some legitimate economic interest
States are free to regulate commerce so long as:
1. it does not impose a discriminatory law such as a tax on an out of state business and 2. the state law is a legitimate effort to regulate health, safety and welfare
tax and spend power
congress may tax activities or property that it might not be authorized to regulate directly under any of the enumerated regulatory powers.
the power to spend is linked to the power to tax in that the money may be raised by taxation and then spent on the general welfare of the US
necessary and proper clause
conditions on the use of federal money in order to achieve some pubilc policy objective
authorization to set conditions on spending
Limits on free speech
courts have ruled that the govt may place reasonable restrictions related to time and place of political expression in cases where public safety may be threatened.
the most common type of commercial speech is through
advertising (through print, TV, radio and web based sources)
central hudson case framework (4 part test) that subjects govt restrictions on commercial speech to a form of intermediate level scrutiny
- 1. so long as the commercial speech concerns lawful activities and it is not misleading, the speech qualifies for protection under the 1st amendment. If the speech is entitled to protection then the govt regulation must pass the final 3 parts of the test in order for the restriction to be constitutionally sound
- 2. a substantial govt interest in regulating the speech must exist
- 3. the govt must demonstrate that the restriction directly advances the claimed govt interest
- 4. the govts restriction must be not more extensive than necessary (not too broad) to achieve the govts asserted interest.
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