Download Document

Survey
yes no Was this document useful for you?
   Thank you for your participation!

* Your assessment is very important for improving the work of artificial intelligence, which forms the content of this project

Document related concepts
no text concepts found
Transcript
The Paralegal Professional
Part II: Introduction to Law
Chapter Five
American Legal Heritage &
Constitutional Law
Schools
of Jurisprudential Thought







Natural law, based on morality & ethics
Historical, based on traditions & customs
Analytical, based on logic of the result, regardless of the means
Sociological realists would use law to shape social behavior
Command believes law derives from the ruler
Critical legal studies bases law on fairness, believes laws are
obstacles
Law & economics sees market & economic concerns as central
to law
The Paralegal Professional, 3e
Goldman and Cheeseman
2
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
History of American Law

English common law (judge-made law)


Based on precedent, or judges’ decisions
Louisiana: French Civil Code
The Paralegal Professional, 3e
Goldman and Cheeseman
3
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Sources of Law in the
United States








The U.S. Constitution
State constitutions
Treaties
Federal & state statutes
Ordinances
Administrative agency
Executive orders
Judicial decisions
The Paralegal Professional, 3e
Goldman and Cheeseman
4
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Sources of Law in the
United States (cont.)

Constitution of the United States





Supreme law of the land
Can render any non-conforming law (state or federal)
unenforceable
Broad principles
Amendable
Set the structure of the government



Legislative branch – Congress
Executive branch – the President
Judicial branch – the courts
The Paralegal Professional, 3e
Goldman and Cheeseman
5
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Sources of Law in the
United States (cont.)

Anything not specifically enumerated as federal is
reserved to the states



State governments generally mirror the federal structure
Treaties, agreements between sovereign nations, are
part of the law
Codified law (statutes)



Enacted by Congress (federal) or states
Organized, by topic, into codes
Local governing bodies pass ordinances
The Paralegal Professional, 3e
Goldman and Cheeseman
6
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Sources of Law in the
United States (cont.)

Administrative agencies



Executive orders


Legislative & executive bodies that enforce the law
Promulgate their own law in the form of rules, regulations
& orders
Power expressly delegated to the President by Congress
Judicial decisions


Precedent, interpreting statutes as well as settling disputes
Reported, used to inform later decisions (stare decisis)
The Paralegal Professional, 3e
Goldman and Cheeseman
7
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Doctrine of Stare Decisis


Stare Decisis means, “to stand by the decision.”
Promotes uniformity by adhering to previous
decisions (similar facts produce similar results)
Doctrine provides for adherence to precedent.
The Paralegal Professional, 3e
Goldman and Cheeseman
8
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America



Ratified by the states in 1788
Consists of 7 Articles and 27 Amendments
Establishes the 3 branches of the federal
government, enumerates their powers, and
provides important guarantees of individual
freedom
The Paralegal Professional, 3e
Goldman and Cheeseman
9
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Five Basic constitutional Concepts:





Federalism
Delegated Powers
Reserved Powers
Separation of Powers
Checks and Balances
The Paralegal Professional, 3e
Goldman and Cheeseman
10
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Federalism: The Constitution created
the federal government, which shares
power with the state governments.
The Paralegal Professional, 3e
Goldman and Cheeseman
11
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Delegated powers: When the
states ratified the constitution,
they delegated certain powers,
called enumerated powers, to the
federal government.
The Paralegal Professional, 3e
Goldman and Cheeseman
12
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Reserved Powers: Those powers
not granted to the federal
government by the Constitution
are reserved to the states.
The Paralegal Professional, 3e
Goldman and Cheeseman
13
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Separation of Powers: Each branch of the
federal government has separate powers:



Legislative: Power to make the law
Executive: Power to enforce the law
Judicial: Power to interpret the law
The Paralegal Professional, 3e
Goldman and Cheeseman
14
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

Checks and balances: Certain checks and
balances are built into the Constitution to
ensure that no one branch of the federal
government becomes too powerful.
The Paralegal Professional, 3e
Goldman and Cheeseman
15
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)

The Supremacy Clause stipulates that the U.S.
Constitution, treaties, and federal law (statutes
and regulations) are the supreme law of the
land. State or local laws that conflict with valid
federal law are unconstitutional. This is called
the preemption doctrine.
The Paralegal Professional, 3e
Goldman and Cheeseman
16
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Constitution of the United States of
America (cont.)



Commerce Clause: Authorizes the federal
government to regulate commerce with foreign
nations, among the states, and with Indian tribes.
Interstate commerce: The federal government may
regulate any activity (even intrastate commerce) that
affects interstate commerce.
Police Powers: Power reserved to the states to
regulate commerce.
The Paralegal Professional, 3e
Goldman and Cheeseman
17
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Bill of Rights & Other Amendments





The first ten amendments to the Constitution
Establish basic individual rights
Ratified in 1971
In addition to the 10 amendments of the Bill
of Rights, there are 17 other amendments to
the U.S. Constitution.
Guarantees fundamental rights (not absolute)
The Paralegal Professional, 3e
Goldman and Cheeseman
18
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Freedom of Speech Clause

1st Amendment: guarantees that the govt. shall
not infringe on a person’s right to speak. This
right is not absolute. Protects:



Oral
Written and
Symbolic speech
The Paralegal Professional, 3e
Goldman and Cheeseman
19
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Freedom of Speech Clause (cont.)

U.S. Supreme Court has placed speech in three
categories:



Fully protected speech
Limited protected speech
Unprotected speech such as:






Dangerous speech
Fighting words
Advocates the violent overthrow of govt
Defamatory language
Child pornography
Obscene speech
The Paralegal Professional, 3e
Goldman and Cheeseman
20
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Freedom of Religion

1st Amendment: Two religion clauses:


Establishment Clause: Prohibits the govt. from
establishing a state religion or promoting religion
and
Free Exercise Clause: Prohibits the govt. from
interfering with the free exercise of religion.
The Paralegal Professional, 3e
Goldman and Cheeseman
21
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Due Process Clause

Due Process

No person shall be deprived of life, liberty or property without
due process



Substantive (fundamental need to know what conduct is prohibited)
Procedural (notice & an opportunity to be heard)
Equal protection


Citizens are entitled to equal protection of the laws
Prohibits discrimination between similarly situated people by the
government



Strict scrutiny categories (suspect class, such as race)
Intermediate scrutiny (protected categories, such as gender)
Rational basis (justifiable reason for distinguishing between
similarly situated classes, not protected or suspect class)
The Paralegal Professional, 3e
Goldman and Cheeseman
22
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.