Ch. 5 Vocabulary

Substantive Law: defined by statute, it prescribes (what we should do) and proscribes (what we should not do) various types of conduct.
Crime: (1) an act in violation of a (2) criminal law for which a (3) punishment is prescribed; the person committing it must have (4) intended to do so and to have done so without legally acceptable (5) defense or justification.
Uniform Crime Reports: (UCR) the Federal Bureau of Investigation's annual report of crimes committed in the United States. It comprises Part I and Part II offenses. The UCR defines eight crimes (murder, rape, robbery, aggravated assault, burglary, larceny/theft, motor vehicle theft, and arson) as Part I offenses. Part II offenses are a mixture of mala prohibita offenses and less serious mala in se offenses.
Substantive Due Process: a constitutional principle that holds that in addition to procedural rights the law must protect substantive rights, such as the right to possess or to say or do certain things.
Overbreadth Doctrine: a criminal law violates the overbreadth doctrine when it fails to narrowly define the specific behavior to be restricted.
Void For Vagueness Doctrine: a statute is void for vagueness if it fails to clearly define both the act prohibited and the appropriate punishment in advance.
Ex Post Facto Law: criminalizing an act already completed but not previously forbidden by the penal code.
Bills of Attainder: legislation imposing punishment without trial.
Corpus Delicti: refers to the five elements of criminal liability, each of which must be pleaded guilty.
Actus Reus: meaning "a guilty act," if refers to the three forms of the criminal act: (1) voluntary bodily movements, (2) an omission in the face of a duty to act, and (3) possession.
Mens Rea: "guilty mind." Liability generally does not attach based on action alone; there also must exist some sort of guilty mind.
Model Penal Code: in relation to modern criminal law, it sets forth four levels of intent: purposeful, knowing, reckless, and negligent.
Negligence: a failure to act with the appropriate level of care.
Doctrine of Transferred Intent: applies to situations where a person intended to harm A but in error harmed B.
Concurrence: the union of the criminal act (actus reus) and criminal intent (mens rea).
Causation: the legal principle that the criminal act is the act that is the cause of the harm. There are two types of causation: factual and legal.
Factual Cause: refers to the idea that "but for" the actor's conduct the harm would not have occurred. It is an initial act that sets a series of other acts in motion that leads to some harm. Factual causation is a necessary but not sufficient element for the imposition of criminal liability. A legal cause also must exist.
Legal Cause: also referred to as proximate cause. The proximity in time between the accused's actions and the ultimate degree of harm caused to the victim. The question often asked is such cases is "for which act does it seem fair and just to hold the actor accountable?" Consequences of an act which are not reasonably foreseeable to the actor are "intervening causes" and may serve to relieve the actor of criminal liability.
Proximate Cause: the legal principle that the criminal act is the one that is the most significant and it seems fair and just to hold the actor accountable for his or her actions.
Harm: the result of the act, the injury to another.
Strict Liability: Imposes accountability without proof of criminal intent in situations where society deems it fair to do so, such as violations of drug and alcohol sales laws.
Vicarious Liability: refers to the imputation of accountability from one person to another, usually the individual's superior.
Inchoate Crimes: crimes that occur in preparation for an offense. Inchoate means "to begin" or "to partially put into operation."

Ch. 4 Federal and State Courts Discussion

According to the book some judges are elected in partisan elections. This means that the judges are aligned with a particular party and are accordingly elected on their alliance. This seems to defeat the point of impartiality when the judges are elected on their biases. This also seems to be an issue with the Supreme Court. The president, a politician, selects a candidate that benefits his political position. Mostly that means he selects a judge that is aligned with his political party inorder to gain more influence in the court for his political party. If there have been several presidents who were conservative and they had chances to select Supreme Court justices during their terms the Supreme Court would be an overwhelming effect. The effect would consist of a mostly conservative Supreme Court which might not be impartial. An example is that justice Alito is an extreme conservative and some of his comments lead one to believe that he has negative opinions about women. It is also interesting that about half the population is female and only two justices out of nine on the Supreme Court are women.
Humans by definition are not perfect. Judges are human and therefore cannot be expected to be completely impartial in their judgments or opinions. The fact that some are elected by political means just amplifies the division between impartiality and bias.

These are some judge political cartoons.
http://www.committeeforjustice.org/blog/uploaded_images/Fiesta-Cartoon-790746.jpg
http://z.about.com/d/politicalhumor/1/0/s/k/2/Judge-Sotomayor.jpg
http://www.stus.com/images/products/cla173z.gif
http://www.mchumor.com/00images/2993_judge_cartoon.gif
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg_1AuBdimNSBkzg91ItIn4qZC6G2Fd3dkrU_n2u91HqpjUqJe1MpOLQFqWCcdRMvI3kB5f-F4D6XIMROpTp4QZLI7q6ih8bo0w5n12H-ZlzuCTfWEJP8J_05-hwhdJsfAeHPkiWA3pshY/s400/1reached_retirement_age_judge_335845.jpg

Ch. 4 Vocabulary

Jurisdiction: the legal authority or power of a court to hear, pronounce on, and decide a case.
1. Personal Jurisdiction: involves the authority of the court over the person.
2. Subject Matter Jurisdiction: involves the authority conferred on a court to hear a particular type of case.
3. Geographical Jurisdiction: the authority of courts to hear cases that arise within specified boundaries, such as a city, county, state, or country.

• Venue: the geographic location of the court according to Dr. Ball

4. Hierarchical Jurisdiction: involves the division of responsibilities and functions among the various courts.

• General Jurisdiction: means a court has the authority to hear a variety of cases, that it is not limited to hearing only only a particular type of case.
• Original Jurisdiction: means the power of the court to hear the case initially.
• Appellate Jurisdiction: the power of the court to review a decision of a lower court.

Article III Courts: the federal courts were established by Congress pursuant to its authority to create "inferior" or lower courts under Article III in the Constitution.
Diversity of Citizenship: the situation where the opposing parties are from different states.
En Banc: if there are conflicting decisions involving the same legal issue between two panels, the entire circuit may sit "as a group" and rehear the case.
Writ of Certiorari: an order to the lower courts to send the record of the case up to the Supreme Court.
Rule of Four: if four or more justices vote to accept a case, it is placed on the Court's docket.
Trial de Novo: is an entirely new trial not just a standard appeal that takes place in the lower court.
Felonies: crimes for which the possible punishment includes a sentence of imprisonment for at least one year.
Complaint: an accusation on a formal document that may be filed out by an officer or a private citizen accusing a specified person or persons of committing a specified act or acts.
Probable Cause: a legal concept referring to the amount of proof a police officer must have to search or arrest someone.
Booking: an administrative procedure, and it involves making an entry in the police blotter at the station indicating the suspect's name, arrest time, offense, and the taking of fingerprints and photographs.
Initial Appearance: the first court appearance that takes place in a municipal or justice of the peace court.
Preliminary Hearing: also called the preliminary examination. the magistrate determines if there is probable cause to believe that an offense was committed and if it was the defendant who committed the crime. it is a critical stage of the prosecution so a lawyer may be present.
Arraignment: a formal hearing before a felony court where defendants are again informed of the charges against them and advised of their rights.
Standing Mute: the defendant is refusing to plead his case and the court enters a not guilty plea.
Nolo Contendere: a no contest plea means the defendant accepts the punishment of the court but does not admit he committed the crime.
Alford Plea: the defendant enters a guilty plea but denies having committed the crime.
Venire: "to cause" or "make come", the legal term for summoning jurors.
Voir Dire: "to speak the truth", the process of questioning the jurors to determine if they have bias, prejudice, impartiality about the case.
Jury Consultants: experts hired by attorneys to help them determine what type of person is more likely to favor their side.
Challenge for cause: a valid reason for wanting to dismiss an individual is shown to the court's satisfaction.
Peremptory Challenge: there is no reason for a potential jurist to be dismissed. these are usually limited to a certain number.
Motion: a request made to the court asking it for something, such as a granting a continuance, the supression of evidence, or the dismissal of the case.
Habeas Corpus: "you have the body", an indirect appeal that challenges the authority of the court to incarcerate the defendant.
Partisan: aligned with a particular party. some states have partisan election of judges.
Retention: judge stands for election after having been selected by a non-partisan commission and then by the govenor of the state.

Innocent Until Executed: We have no right to exoneration

---------This is an article written by Dahlia Lithwick in the Newsweek magazine.
The article describes a man, Cameron Todd Willingham, who allegedly set a Texas house fire in 1991. The house fire killed his three young daughters. He was convicted of arson and sentenced to death. A reporter researched the case said that the "whole prosecution was a train wreck." He also said that "every step in the appeal, Willingham's claims of innocence were met with the response that he'd already had more than enough due process for a babykiller." There were at least five indepent investigations of the supposed arson case. Every single investigation came away with little doubt that it was accidental. The likely cause was a space heater or bad wiring. No one at the state Board of Pardons and Paroles or the govenor's office took note of these investigations or the reports that were sent out protesting Willingham's evidence. Willingham was executed in 2004. His reported last words were, "The most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."

The article also describes some Supreme Court ruling. In June, the Supreme Court ruled that a "prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense." Chief Justice John Roberts said that "A criminal defendent proved guilty after a fair trial does not have the same liberty interests as a free man."
http://www.newsweek.com/id/214833

Ch. 3 Making Law Disscussion

I don't like it that the government can take your property away from you. Eminent domain just bothers me. I found out that homes taken by the government are usually underapraised so that the homeowner is ripped off. I don't agree with the court decision in Kelo vs. City of New London. "Public use" is not equivalent to "public purpose," which is not equal to "economic purpose." That just seems like the government is favoring big businesses over the individual rights to live where they want. It also seems to more a conservative thing to do than a liberal thing. Here is an article that deals with two eminent domain cases with one landowner. I wonder why they had to relocate a road? I remember when the Idaho government took some property along Curtis road. Several houses were demolished. What I found disturbing about it was that they didn't use the space efficiently. The houses could still have been there now because there is that much room.

http://www.nwaonline.net/articles/2009/04/06/news/040709rznoland.txt

Ch. 3 Vocab

Common Law: a common law system was developed in England by the thirteenth century. Common law was judge-made law. That is, it was law created by judges as they heard cases and settled disputes. pg.373
Henry II: English king (1154-1189) of referred to as the "father of the common law." pg. 379
Ranulf de Ganvill: Henry II's chief justice, who wrote a book detailing the transition from substantive irrationality decision making to legal decision making in common law. pg. 386
Magna Carta: the "Great Charter" of 1215, limiting the power of the English sovereign and asserting certain rights on the part of the barons. pg. 382
Henry de Braction: English judge who compiled judicial rulings to show how precedent may guide future rulings; he is often referred to as the father of case law. pg. 379
Stare Decisis: the legal basis for adhering to precedent: "Let the decision stand." pg. 388
Ratio Decidendi: the legal principle on which a case is decided. pg. 386
William Blackstone: English judge and philosopher whose Commentaries on the Laws of England organized common law into the structure it has today. pg. 390
Obiter Dicta: statements in a court's decision made in support of the ratio decidendi but which do not establish precedent. pg. 383
Constitution: a document that legalizes the existing political order and legitimizes its ideology, provides a framework for the administration of government, regulates social and institutional behavior, and enumerates national goals and aspirations. pg. 374
Criminal Law: the body of law that regulates conduct and provides penalties (including fines and imprisonment) to be imposed on those who violate the laws; sometimes referred to as the criminal code or penal code. pg. 375
Articles of Confederation: the 1781 document that was the first attempt at creating a unified United States. pg. 372
Habeas Corpus: a document challenging the legality of a person's detention. pg. 379
Bills of Attainder: legislation imposing punishment without trial. pg.372
Ex Post Facto: criminalizing an act already completed but no previously forbidden by the penal law. pg. 377
Bill of Rights: the first 10 Ammendments to the U.S. Constitution. pg. 373
First Ammendment: Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abidging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. pg. 62. It states the principles of freedom of religion, press, speech, and assembly.
Second Ammendment: A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall no be infringed. pg. 63. It states that people have the right to defend themselves and own weapons.
Third Ammendment: No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in any time of war, but in a manner to be prescribed by law. pg. 64. It states that the military can't force people to let them stay in people's homes.
Fourth Ammendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall no be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to seized. pg. 64. It says that the law enforcement or government can't search your home or seize your property without a warrant that was issued because of probable cause you did something against the law.
Fifth Ammendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual sevice in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. pg. 65.
Grand Jury: a group of citizens who listen to the case presented by a prosecutor and determine whether there is sufficient evidence to grant an indictment. pg. 379
Indictment: a document formally charging the defendant with a crime handed down by a grand jury after hearing the evidence presented by the prosecutor. pg. 380
Information: a substitute for an indictment in which charges against a defendant are filed directly with the court by the prosecutor, thus bypassing the grand jury. pg. 380
Double Jeopardy: the legal principle that states a jurisdiction may not (1) prosecute someone again for the same crime after the person ha s been acquitted, (2) prosecute someone again for the same crime after the person has been convicted, and (3) punish someone twice for the same offense. pg. 376
Mistrial: a situation in which a trial is terminated because of a legal error that occurs during a trial that unfairly prejudices the defendant. A new trial may be held at a later date. pg. 382
Hung Jury: a situation that occurs when the trial jury is unable to reach a unanimous verdict in a case that requires unanimity. pg. 379
Acquittal: an acquittal or "not guilty" decision means that the state was unable to meet the high burden of proof necessary for a conviction. pg. 371
Dual Sovereignty Doctrine: under the dual sovereignty doctrine, a person can be prosecuted in both federal and state court for the same offense or in the courts of different states for the same offense if certain circumstances surrounding the offense occurred in more than one state. pg. 376 Miranda Warnings: warning given by police to arrested suspects, informing them of both the privilege against self-incrimination and the right to counsel. Evidence obtained by the police during a custodial investigation of a suspect could not be used at trial unless the suspect first was informed of these rights. pg. 382
Eminent Domain: the right and power of government to take private property with just compensation, for public purposes. pg. 377
Sixth Ammendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. pg. 67.
Seventh Ammendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. pg. 68-69.
Eighth Ammendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. pg. 69
Ninth Ammendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The rights provided in the Bill of Rights should not be taken as the only rights that citizens have-they are merely some of the rights retained by the people. pg. 69
Tenth Ammendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the United States, are reserved to the States respectively, or to the people. It states that the rights not delegated to the federal government by the Constitution are reserved for the states or individual citizens. pg. 70
Reconstruction Ammendments: Ammendments passed after the Civil War that were intended to protect the recently freed slaves. These Ammendments include the 13th, 14th, and 15th Ammendments. pg. 70
Thirteenth Ammendment: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation. pg. 71
Fourteenth Ammendment: All persons born, or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. pg. 71
Suspect Classification: An unconstitutional distinction made between individuals on the basis of race, religion, or national origin in a law or policy. Means that the state cannot enact or enforce laws aimed at restricting the rights of so-called suspect classifications, which are groups of people who historically have been ill-treated. pg. 388
Fundamental Rights: Rights that the Supreme Court has determined are "essential to the concept of ordered liberty." pg. 378
Strict Scrutiny: A rigorous standard of review exercised by the courts for cases involving legislation curtailing fundamental rights or a suspect classification. pg. 388
Intermediate Scrutiny: A level of review developed by the Supreme Court to review governmental actions that may affect an individual's constitutional rights. The test is whether a law is "substantially related to an important government purpose." pg. 380
Rational Basis Test: A less restrictive basis for judicial review used when neither a fundamental right nor a suspect classification is implicated in enacted legislation. Legislation must have a rational basis. pg. 386
Substantive Due Process: A constitutional principle that holds that in addition to procedural rights the law must protect substantive rights, such as the right to possess or to say or do certain things. pg. 388
Incorporation: The Fourteenth Ammendment says that no state shall deprive a person of life, liberty, or property without "due process of law", as prohibiting states from abridging certain individual rights. Many of these rights are are included in the Bill of Rights, hence these rights were included (or incorporated) in the definition of due process. pg. 75
Total Incorporation: Under the total incorporation approach, the due process clause of the Fourteenth Ammendment made the entire Bill of Rights applicable to the states. pg. 389
Total Incorporation Plus: Under the total incorporation plus approach, the due process clause of the Fourteenth Ammendment includes all of the Bill of Rights and, includes other rights not specified in it. pg. 389
Selective Incorporation: A piecemeal evolutionary approach to incorporation. pg. 387
Judicial Review: The power of the courts to examine a law to determine whether it is constitutional. pg. 381

Fiction Blog 1

Ellie Cavanaugh's sister doesn't come home and her parents get worried. She was supposed to come home at 9 but didn't. Ellie's sister, Andrea, had left her friends house at 8 p.m. Ellie knew that Andrea had gone to the secret place where she and her friends would meet with Rob Westerfield. They would smoke and hang out there. Andrea had a crush on Rob. Rob was a notorious speeder and all around bad boy. Ellie's parents had forbidden Andrea from seeing Rob. Andrea met with him in secret. Andrea would sometimes take Ellie with her to the secret place. The morning after Andrea didn't come home, Ellie snuck out to the secret place. She found Andrea dead with her head bashed in. Ellie ran home to her house covered in the blood of her sister. Ellie's parents blamed Ellie for Andrea's death because she didn't tell them about the secret place in time. Rob Westerfield was convicted of murder mostly on Ellie's statement to the court. Ellie's parents split up and her mom dies. Her father gets remarried. Ellie became a investigative journalist in Atlanta. When Rob becomes elligible for parole, Ellie visits her old home again. She intends to be there to prevent him from getting out. Rob's family mounts a defense saying that it was another student at Andrea's high school who killed her and not Rob.
Pg. 3-63

Ch. 2 Justice and the Law Discussion

Aristotle defined justice as consisting of treating equals equally and unequals unequally. What I want to know is how do you know who is equal and who is unequal? I know that in the south before the civil war blacks weren't considered to be a full person and were given a 3/5 vote. But that was back then and now we believe that they are human beings just like the whites and other races. Would unequals be considered those who have broken the laws or would that be something else?
In my opinion the evolutionary natural law perspective seems to be the most probable reason that law was created. It has an underlying truth that speaks to me. I also think that positive law is has much to do with some of the laws passed by kings who had no one to balance them in their power. Many of those laws were later thrown out but some societies today still have dictators who control every aspect their countries. Such an example would be North Korea. I think Kim Jong Ill has fashioned himself as a ruler who was chosen by the God(s). That might qualify as Transcendental law even though the people don't know the he made up the laws and didn't get them from a higher power. http://www.biography.com/articles/Kim-Jong-Il-201050?part=2

Ch. 2 Vocab

Justice: "Justice consists of treating equals equally and unequals unequally," according to Aristotle.
Distributive Justice: the form of justice concerned with how a political entity such as a nation distributes its resources.
Retributive Justice: the form of justice concerned with how a society's system of law goes about determining guilt or innocence, and then how it goes about determining the proper just sentence.
Legal Realism: the study of legal decision making. It explores how law is applied and the implications of that application: not law "as written," but law "as practiced.
Transcendentalism: a philosophy emphasizing the primacy of the spiritual over the material (the spirit transcends the material)
Transcendental Natural Law Perspective: a perspective on natural law that law originates in some transcendental realm (such as God) and must be followed by all.
Evolutionary Perspective: a perspective of natural law that considers it natural because it flows from te evolved nature of the species.
Naturalistic Fallacy: the fallacy of confusing what is with what ought to be.
Equity: a concept akin to fairness or justice that served as the basis of the Courts of Chancery in England.
Courts of Chancery: early English courts in which judges were directed to view each case as unique, to be flexible and emphathetic, and to think in terms of standards of fairness rather than rules of law
Rule of Law: the principle that law, not men, govern and that no one is above the law.
Due Process: a set of instructions informing agents of the state how they must proceed in their investigation, arrest, questioning, prosecution, and punishment of individuals who are suspected of committing crimes; a principle binding the state to follow certain procedures designed to protect individual rights before it may deprive individuals of life, liberty, or property.
Lettres de Cachet: notorious sealed letters issued under the Code Louis in France, ordering the arrest and incarceration of anyone displeasing powerful individuals.
Code Louis: it is a perfect example of a system of positivist law being at odds with justice.
Sir Edmund Coke: Chief Justice of England during the sixteenth-century reign of James II. Often called the "father of due process."