Chapter 1
| A. Sources of Laws |
| 1. Common Law |
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product of case decisions (judge made)
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"discovered law"
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principles to guide future cases based
upon common customs of the people
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"common sense"
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transition to common customs of the court
(judges)
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looking to past decisions (precedent)
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precedents are not absolute, they can
be modified or overruled
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can lead to the creation of laws
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| 2. Law of Equity |
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Like common law
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The difference is that equity law comes
by judicial decrees
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(no juries) (often needed quickly)
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Ex. Restraining orders, warrants,
injunctions |
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A balancing of rights
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Ex. Custody cases
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| 3. Statutory Law |
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derived from legislative action (Federal,
State & Local)
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statutes deal with more general, large
scale issues
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statutory law is collected in codes
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courts interpret statutes
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common law kicks in after the offense,
statutory law can anticipate the offense
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| 4. Constitutional Law |
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derived from the Constitution (Federal
and State)
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specifies what government can and can't
do
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the highest authority
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"No one can say with certainty what
any part of the U.S. Constitution means until the Supreme Court has decided
what it means in a particular case."
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The power of judicial review (interpreting
the Constitution)
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increasing power of the Supreme Court
over legislative manners
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constructionism (based on original intent
and Natural/Divine law)
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see the Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed," |
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judicial activism (based on relativistic
standards) "what does the law mean today?
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| 5. Administrative Law |
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created by enabling legislation (administrative
agencies)
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day to day oversight
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create regulations (with the force of
law)
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considered experts (and judges are reluctant
to overturn their regulations)
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| What's missing? |
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| The Legal System: |
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| Dual System of Courts |
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| 2. Federal |
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| decision process: |
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