Law and Ethics- Chapter 1 and 2

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Law and Ethics- Chapter 1 and 2
2012-10-01 22:40:03
Chapter Law ethics

Chapter 1 Law and ethics
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  1. Constitutional Law
    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
  2. Ordinances
    local regulations

    statutes at the local level

    Ex. zoning, and health and safety regulations
  3. State statutes
    codes or consolidated statutes
  4. Statutory Law
    Created by a legislative body

    • Approved or disapproved by the
    •   executive branch
    •   (i.e., governor or president)

    Also known as “codes”
  5. Administrative Law
    Source of law that regulates the exercise of authority by executive branch agencies and independent government agencies

    Also known as “regulations”
  6. Common Law
    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
  7. 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.
  8. 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).
  9. Article II of the constitution
    Establishes the executive branch (president); sets qualifications for the presidency; grants executive powers (enforcement of laws).
  10. Article III of the constitution
    Establishes the judicial branch with a federal system of courts, including a Supreme Court; grants certain judicial powers.
  11. Article IV of the constitution
    Establishes the relationship between the states and the federal government; describes how to admit new states to the Union.
  12. Article V of the constitution
    Describes the process for amending the Constitution.
  13. 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.
  14. Article VII of the constitution
    Lists the requirements for ratification of the Constitution.
  15. 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
  16. 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.
  17. The 1st Amendment
    Congress shall make no law

    That allows government encroachment in the areas of religion, press, speech, assembly, and petition of grievances
  18. 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.
  19. 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.
  20. The 14th Amendment
    Makes the Bill of Rights applicable to the states.
  21. Jurisprudence
    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.
  22. Law
    body of rules of action or conduct prescribed by controlling authority, and having legal binding force.
  23. Blacks Law Dictionary
    authoritative source for legal terms
  24. Statute of limitations
    a fixed time period for which to assert legal rights
  25. Federal statutes of limitations
    claim of discrimination must be filed within 180 days from the time of the event of discrimination
  26. 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.
  27. 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
  28. Federal System
    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.
  29. 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
  30. Structure of the constitution
    • Preamble- broad objectives
    • 7 articles- powers and procedures
    • 27 amendments
  31. Jurisdiction
    the legal authority that a court must have before it can hear a case
  32. Bill of rights
    the first ten amendments (added in 1791)
  33. Enumerated powers
    Powers granted to the three branches of govt in the constitution
  34. 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)
  35. Commerce clause
    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)
  36. Interstate activity
    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
  37. Intrastate activity
    congress has the power to regulate the activity so long as it has a substantial economic effect on interstate commerce
  38. whistleblower act
    prohibits any business engaged in interstate commerce from firing their employees for reporting safety violations.
  39. 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
  40. 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
  41. 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
  42. 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
  43. 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.
  44. the most common type of commercial speech is through
    advertising (through print, TV, radio and web based sources)
  45. 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.