Section 1
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What are the sources of law?
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Last updated
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Date created
Mar 1, 2020
Cards (60)
Section 1
(50 cards)
What are the sources of law?
Statutes Constitution Administrative Regulations Common Law
Judicial Branch
judges interpret the law
Structuralism
Evaluates design of laws and how they were configured.
Dual Sovereignty
Can prosecute same act in federal and state court because two different systems of government.
Due Process (Limit)
5th Amendment Due Process Clause applies to the federal government and the 14th Amendment Due Process Clause applies to the states. There are 5 doctrines of Due Process
Appeals
After defendant found guilty, an appeal is available often about legal ruling by judge, about evidence, or jury action.
Defense Counsel
Serve to represent clients within bounds of the law.
Release
Release of a defendant to assist with defendant and continue a regular life. Prosecutor prefers defendant stay in jail to prevent more criminal behavior or opportunity to flee.
Civil Law Objectives
about money and spreading the loss, making victim whole, injunctive relief
Ex Post Facto (Limit)
"From a thing done afterward" The Constitution prohibits the federal and state legislatures from enacting laws which are retroactive Reflect principle of legality Laws must be prospective in application only
Prosecutors
Represent the government, enforces federal government laws, have discretion in whether to bring a case and what charges to file. ONLY ONES WHO CAN INITIATE CRIMINAL CHARGES!!
Administrative Regulations
EPA, FDA, can write the law but the agencies cannot create crimes with impunity
Criminal Law
About the public, designed to morally condemn and punish violators.
Trial
Jury selection or de-selection and jury instructions which are given by the judge to the jury to guide them which are often standardized but can be customized.
Plea Bargaining
Occurs in almost all cases and yields resolution in more than 90% of cases, serves as a trial proxy.
Federal Powers
federal powers are given by the Constitution, to make a law need an enumerated power to allow them to do so
Executive Branch
police and prosecutors enforce the law
Common Law
what the law used to be, basis for many state criminal laws, England (1400s-1800s)
Judges
Make rulings about the law, what evidence is admissible, supervise the trial proceedings including jury.
Powers
Federal vs state
Civil Law
About private law and private parties, intended to settle disputes
Legislative Branch
legislators create and enact law (RICO Act - allows prosecution of conspiracies and organized crime)
Objectives of Criminal Law
Retribution: individual loses a right due to prior actions (prison). Deterrence: opposite of retribution, creates incentives to avoid criminal behavior, can be general (public) or specific (person).
Text
Text of the law; focus on actual words of the statute and use plain meaning of the words.
The Principle of Legality
No crime without law Requires fair notice and fair warning of what is criminal Retroactive crime creation is unacceptable Comes from England
Criminal Law Burden of Proof
Proof beyond a reasonable doubt, burden on the state
Civil Law Evidence
needed
Incorporation Doctrine (Limit of Due Process)
Selectively applies the Bill of Rights to limit the states, courts applied the amendments selectively to states depending on whether the amendment was believed to be fundamental to the American scheme of ordered liberty.
Criminal Law Evidence
needed
The Model Penal Code
not law and has no binding effect but has been the model for many state criminal codes and has influential force, written by the American Law Institute.
Kansas v. Hendricks Rule
If a law is so punitive in purpose of effect then it is criminal, not civil law The court will reject the legislature's manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the state's intention to deem it civil.
Bills of Attainder (Limit)
Constitution prohibits laws that punish specific individuals or members of a group without the benefit of a judicial trial. Cannot impose some form of punishment prior to a judicial trial.
Charging Instruments
Formally charged with a crime, includes prosecutor's information (pieces of paper filed by prosecutors with charges and essential facts that provides defendant with notice), grand jury indictment, affidavits, notices to appear.
Post-Trial
If defendant found not guilty the case usually ends. If defendant found guilty often more motions about release and trial, then sentencing occurs.
Civil Law Burden of Proof
Preponderance of the evidence, burden on either party
Intent
Courts look to the intent of lawmakers and legislative if the text of a statute is not clear.
Motions
Motion to dismiss and motion to suppress is common.
Contextualism
Views laws and Constitution within contexts (history, politics, cultures)
Double Jeopardy (Limit)
Being prosecuted or sentenced twice for substantially the same offense is prohibited.
Discovery
Reciprocity, more likely a resolution without trial.
State Powers
Police powers 1. Health 2. Safety 3. Welfare 4. Morals
Dynamic Interpretation of the law
interpret the terms in light of evolving public policy
Equal Protection (Limit)
Guarantee that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances, legislation cannot affect a fundamental right or involve suspect classification.
Originalism
A type of textualism associated with constitutional interpretation, examines meaning of a text at the time the law or constitutional provision was adopted.
Jury
The triers of the facts, alleged criminal behavior does not become a crime until a jury or judge finds it is so and a judgment of conviction is entered.
Constitution
doesn't really give a source of criminal law (treason, only)
Pre-Trial
Where most cases get resolved, criminal cases rarely reach trial, where discovery occurs.
Policy
Used when the text and intent analysis don't yield a satisfactory interpretation to supplement or supplant the text and intent exploration
Statutes
where crime mostly comes from today; are proposed, written, and sponsored by special interest groups such as lobbying entities.
Canons of Interpreting Statutes
Text Intent Policy
Section 2
(10 cards)