BOMB Midterm Study Guide

BOMB Midterm Study Guide - American Creed: Americans have...

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American Creed: Americans have placed great stress on opening the door to individual mobility and personal achievement through heavy investment in mass education. The culture feeds to the flexible and innovative nature of the courts. The overlying focus has been stressed on individual rights, based on Const. and B or R, and therefore America is the most ant-statist, legislatist, and rights oriented nation. It can be summed up in Egalitarianism, populism, laissez-faire, libertarianism and individualism. Bargaining in the “shadow of the law:” The bargaining that goes on in the back room. It’s a very informal process where people negotiate settlements and it pushes aside persuasion and the legislative balancing of interest. Settlements often times use “self help” and it is not as costly/ takes less time. Generally works out better than a trial, the lawyers settle the issues and is all forms of self-help with another party. i.e. a divorce case. Brown v Board of Ed: A ruling o desegregate the public school system when both congress and the pres. failed to deliver in bringing along the social change, so the courts stepped in ruling over the controversial case. Dynamic court view because the courts served as a catalyst in bringing forth revolutionary ideas in the form of civil rights. Touched on doctrinal constraints with the terms “all deliberate speed” which was the clause used by the states to fail in desegregating the schools. Bureaucratic Legalism: Judge and juries converse, work together thus guilt and sentencing are done at the same time. Judges and jury sit n the same panel however the judge has more power and can overrule the jury. Juries write points of law showing why verdict was chosen and both sides can appeal. All evidence is admitted and can come into play. Results in significantly shorter cases. Judges do primary questioning, lawyers secondary, thus more centralized and efficient. Constrained rule oriented, slow to adopt, efficient, cheaper, burden on the state. Gov’t pays for trials. Criminal law v Civil Law: Criminal law is the law of the state on behalf of the community: murder, battery drug possession, prohibition of certain conduct (the gov’t is involved) and there is a threat of punishment by the state. Civil law involves everything else: plaintiff seeking money or compensation (property disputes or beaches of contract) Civil law is a body of private law that is concerted with private rights and remedies. Criminal law is a body of public law that aims to prevent harm to society. Basically shows that some aim to seek punishment of the perpetrator in regards as a criminal as opposed to those who seek out monetary gain (civil). Constrained Court View:
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BOMB Midterm Study Guide - American Creed: Americans have...

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