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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.