Common Law, Civil Law, Criminal Lawsuits - Study Notes | POLI 4023, Study notes of Political Science

Download Common Law, Civil Law, Criminal Lawsuits - Study Notes | POLI 4023 and more Study notes Political Science in PDF only on Docsity! Terms and Vocabulary:  People in the lawsuit: plaintiff (bringing the complaint) and the defendant  Appellate: appellant and the appellee / respondent (won the case)  Petitioner: person appealing to the Supreme Court  Amiaus Curiae: friend of the court- groups who have a stake in the outcome of the case  Majority: opinion sets precedent o Supreme Court: 5/9  Plurality: does not set precedent  Concurring: agree with outcome of case, but not the reasoning  Dissenting: disagree with outcome- not voting with majority  Normative: claim about right/wrong- proscriptive- “should”, “ought”  Empirical: concerned with “is”- objective- “does” What characteristics must a law exhibit? How do you know a law when you see it? - threat of a consequence - protection: person, property, rights - backing of legitimate authority - boundaries - recorded - uniformity - necessary - details/ notice - availability for people to know - agreed upon/ social norm - order/ structure - resolve conflicts - structure relationships - uniformity/ consistency  authority Who contributes to law in society? - Law: o Statutory law: passed by legislatures o Constitutional Law: broader/ more vague o Administrative Law: agency decisions o Common Law: associated with courts, interpreting Admin, Statutory, Constitutional law - Common Law System : US- o Countries that were formally British colonies, o precedent is binding- o judges have discretion o Often end up with inter-branch conflicts because of judges discretion - Civil Law System : o Roman origin, France, Germany- o precedent is not binding- o judges are seen as technical bureaucrats- very detailed code- judges interpret code which the legislatures made o judges look at disputes and refer to code for answers Difference is the view of the judge for Common and Civil Law Systems Criminal Law Suits - government v individual - stakes are higher (prison time) - higher burden of proof - person is guilty beyond reasonable doubt- more certain than not (95%) Civil Law Suits - person v person/ business - medical malpractice, family law, contracts, etc - damages are at stake (money) - only preponderance of evidence (51%) Judges v Umpires Activity in Class Keep legality of courts strong so people abide by laws/ outcomes Judicial philosophies/ Schools of Jurisprudence - Natural Law: higher authority, procedures matter- broad sense of justice- inherent justice- morality- Catholic Church o Critiques: could be variation over people- source of justice could be different – over time good/ just changes - Legal Positivism- Positive law : rules and regulations made by executives, judges, etc- law became a law through correct procedures then you have to follow it o Critiques: law could be unjust/ immoral- overly technical- not looking at common good of people When you see a law is immoral: If positivist- you have to follow it, you try to change the law through the system If naturalist- have the duty to disobey - Historical Jurisprudence : original intent- looking back to history to tell you what the law says- using history, culture, customs- look to see what history has set as rules/ guidelines- look to writings of the framers to see that the writers were thinking o Critiques: norms change over time, evolving norms- gaps in historical record - Utilitarianism : economic idea- get most benefit for the most people- people are rational actors- greatest good for greatest number of people o Critiques: ignores well bring of minorities, promotes tyranny of majority – puts emphasis on rational of people- does not look at factors like justice - Mechanical Jurisprudence : judges are mechanical in applying the law- judges as umpires-judges are mechanical in reading and applying law o Critiques: don’t take into account competing interests, public opinion, etc - Sociological Jurisprudence : social customs, precedent norms, trends- judges should be active in making policy- courts should make policy because reacting to law in daily life o Critiques: law can change in a slow way- personal preferences come into play- bias is inevitable o Legal Realism : branch of sociological jurisprudence- social customs, precedent, norms, trends, personal preference come into play- law as a social science  Critiques: no room for law (it says: judges should think of policy and personal belief) – too much personal preference and not enough law - Critical Legal Studies - law is very subjective – neo- Marxist (looking at interpreting people using class)- feminist jurisprudence, critical race theory- see law as upholding status quo of wealthy over working class, men over women, whites over blacks o Critiques : believe law is subjective- don’t believe in law aw all - Law and Economics : individuals are rational actors- use free marker principles to interpret law o Critiques: capitalist ideas over individuals- conflicts with Constitution Supreme Court has most choice over their docket Origins of Judicial Power o 1- commission- formed to generate names- governor picks 1 person- 1st person is judge for x amount of time o 2- retention- voting to keep or remove governor picked judge for longer time  Critiques: pushed politics to back room, voters don’t know what’s going on, important to know who is on commission - Election: o Non partisan- do not know republican/ democrat  Interest group participation brings this closer to partisan  Voters are not “qued” on ballot o Partisan- should be able to vote and know if party of candidate – accountability Some states may use the governor elected method in actuality when on paper when they are Partisan Incumbency- already in office Rights / Potential Rights of Candidate - competitive race - speech- represent yourself and political issues - due process - right of association- who you affiliate yourself with Rights of Voters - information disclosure to make decisions o candidate information o who has given money to the candidate Goal of Competitive Elections - check on government because you can hold people accountable for their actions Why have announce clause or restrictions on what judicial candidates can say? - impartiality - keep corruption out of system - appearance of impartiality o can make decisions seem less legitimate Republican Party v. White - Supreme Court said that the announce clause violated candidates free speech rights - Announce Clause: o First Amendment:  Is the government regulation content based- cannot favor 1 content over the other  Announce says that you cannot talk about judicial philosophies as if would imply to a case  The clause tells you what topics you can cover- regulation is content based  Court applies strict scrutiny (more likely than not, a law will get struck down when looked at strict scrutiny because the burden is reversed)  Narrowly tailored - means used to achieve interest is only way to achieve compelling interest  Compelling interest - there has to be an amazing reason to regulate the content- o MN wants to maintain impartiality and appearance of impartiality o Supreme Court- impartiality- lack of bias- does not serve impartiality in that way- o MN- lack of preconception, legal views, openmindness o Supreme Court- rejects- hard to find judge who does not have a pre-condition about law- says that MN is being under inclusive- codes do not regulate statements before becoming a candidate or after elected o Concurring: Kennedy- this clause takes aways peoples information Know myths and evidence against myths (Moodle Handout) What does it mean to elect judges? - Dissent o Louisiana- Melinda Hall0 interviews with state justices in LA-  Justices are less likely to dissent as they get closer to election- even capitol punishment cases  It draws attention to yourself because you are writing by yourself  Electing judges changes the dynamics/ justices ideas about the court - Sentencing o Punitive punishment- closeness to re-election o Closer to re-election harshness of sentences increased  Judges are concerned with being labeled soft on crime- there are consequences of this because people don’t want to reelect someone who is soft on crime  Public is not sophisticated- people cannot tell if a decision is appropriate/ not appropriate  Damages idea of judicial neutrality  People will not be treated equality because if varies with timing- closer to election- harsher penalties Campaign Contributions - Louisiana – district based