Exam 1 study guide
First Amendment Concepts
1. What does the First Amendment state?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
1. Is the First Amendment applied literally by the courts?
It is not taken literally that absolutely no law will be made regarding abridging the freedom of speech or press. The courts have determined that the First Amendment’s provision extend various levels of protection, depending on the communication platform
Broad judicial concepts
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1. What are the five sources of law?
1. Common Law
2. Equity Law
3. Statutory Law
4. Constitutional Law
5. Executive orders and administrative rules
1. How are the federal and state court systems structured?
There is one federal system, and each state + the District of Columbia have their own systems. Technically 52 systems.
The federal courts have jurisdiction over cases involving federal law or disputes involving parties from more than one state. Ex: credit card fraud or if someone in one state claimed they were libeled by media in another state.
U.S District Court is the court of original jurisdiction. This is the trial court. There is 94 districts in the states, D.C., and Puerto Rico.
If you are unhappy with the outcome, you go to the next court..
Appeal to one to the 13 U.S. Circuit Courts of Appeal> Unhappy with appellate court decision, petition the US Supreme Court
State Court System:
State Court Systems have jurisdiction only in cases involving laws of their own state In CA the original trial court is the Superior Court (58, 1 for each county) If you’re unhappy with the verdict..
You can file in the CA Court of Appeals> petition CA Supreme Court (can also pick and choose cases like Supreme Court If you want to learn more check out Can astronomers deduce fingerprints for an element?
If a crime violates both state and federal law, the defendant can be charged twice Moving between systems
-Cases can only go from top state level (state Supreme Court) to top federal level (SCOTUS) Similar to an appeal
If the petitioner in a California Supreme Court can successfully argue that the court’s decision is in violation of the Constitution, SCOTUS could hear it
Most key cases involving free speech/communication law originated in the state court system
1. What is the difference between civil law and criminal law?
Civil procedure is often more complex than criminal process and involves a lot of documents. Someone files a complaint in court specifying what they believe another person did wrong. The defendant files a written answer, likely denying culpability.
1. What is statutory interpretation?
When the wording in a statute is vague or ambiguous, courts can interpret and apply the law. Sometimes referred to as “legislating from the bench”. Judges from both original and appellate courts study the record and history behind statute, seeking evidence as to what lawmakers intended when they passed the statute. They will then issue a decision determining the meaning of the statute. We also discuss several other topics like What is the net number of atp produced in glycolysis?
1. What is judicial review? Criticisms of judicial review? Approaches to it? Judicial review is the right of any court to declare any law or official government action invalid because it violates the Constitution. Exercised by all the judges in the federal and state systems. Can be quite controversial.
Judicial restraint is the ideology that the power of judicial review should be rarely exercised because it is fundamentally undemocratic. (expressed by Justice Felix Frankfurter in 1950) Approaches to judicial review:
Originalist- the originalist approach believes that the intentions of the framers like James Madison and Thomas Jefferson are enshrined in the document itself, however we do not know exactly what these framers meant because there are no existing records from the proceedings when the Constitution was drafted. They consider the meanings in the document unchanging and eternal, and Supreme Court justices must recognize those meanings and then apply them to matters of law. Don't forget about the age old question of Who discovered the vaccine against polio?
Strict construction- Supporters believe that Supreme Court justices should exercise the power of judicial review only when their decisions closely track language in the Constitution. The Constitution should be strictly and narrowly interpreted. Difficult to do in practice because instances do exist where freedom of speech/ the press is abridged.
Philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide, their decisions. Activist judges are willing to use the power of judicial review fairly aggressively, they argue that justices are in the unique position to protect the minority against a repressive majority. Ex: Brown v. Board of Education (1954), Roe v. Wade (1973), Bush v Gore (2000), Citizens United v FEC (2010), Obergefell v Hodges (2015) If you want to learn more check out What are the two major fractions of blood?
1. What is stare decisis? Why is it important?
The idea that, in most instances, courts should follow precedent and defer to past decisions. Prior case decisions should guide the analysis and decision in the current case. Predictability and consistency in the law foster judicial legitimacy. Literally “let the decision stand.”
1. What are the court’s options for handling precedent?
-They can accept the precedent as law
-They can modify the precedent based on a new set of circumstances
-They can distinguish the precedent from the current case
-They can overrule the precedent and declare it wrong
1. What distinguishes a majority decision from a plurality decision? Why does it matter? In a majority decision, a majority of the judges agree about who won the case and why. In a plurality decision, it is possible that the judges agree about who won but disagree about the why/the rationale. If a lower court needs to determine the central principle of a precedent but the interpretation is unclear, a precedent is vulnerable to being challenged.
Summary judgment: The defense asks the judge to look at the evidence and determine the plaintiff can’t prove what is necessary to win a case. The defense wins because it is deemed a waste of the jury’s time to go further. Very common for libel cases to end this way. Don't forget about the age old question of What is the general process of bottom-up approach in ling's speech program?
Preliminary hearing: Proceeding to determine whether the state has enough evidence to warrant a trial. Often include arguments over the admissibility of evidence. Information that is prejudicial to the defendant might come up.
The defense may get sensitive evidence tossed out, yet the case is permitted to go to trial. Damning evidence that technically can not be brought up at trial is already out there, making it difficult for a defendant to get a fair trial.
Writ of certiorari: A decision by the Supreme Court to hear an appeal from a lower court -Through a writ, the high court orders the lower court to send all records up for review
Writs are granted behind closed doors but four justices must agree to hear the case, when the writ is denied, does not necessarily mean justices agree with the outcome
If writ is granted..
-the parties directly involved file legal briefs
-in important cases, amici curiae also file legal briefs
-Each side gets 30 to 60 minutes to argue its case
-Start with an opening statement but the lawyers are often interrupted by justices asking questions
Rule of 4
Four justices must vote in favor of the grant in order for the Supreme Court to make the decision to hear an appeal from a lower court (certiorari)
Judicial review is the right of any court to declare any law or official government action invalid because it violates the Constitution. Exercised by all the judges in the federal and state systems. Can be quite controversial.