Exam 1 Notes

Exam 1 Notes - Oliver Wendell Holmes The life of the law...

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Oliver Wendell Holmes “The life of the law has not been logic; it has been experience? We must separate law from morality o People think different things as being moral or unmoral. o We cant assume that the law correctly represents morality; the law may lag behind. 2 questions to ask: o What is legal? o What is moral? “To study the law as an attorney, your job is ot predict the future of the law – and the future is crafted/interpreted by judges.” – Predict what the judge will do. o To Holmes, the law comes from the decisions of judges in particular cases Bad Man Standard o We need to use the Bad Man standard to inrepret the law o Standard of someone who is just doing the minimum to get by – Would they understand that a specific action is illegal? Statute of Limitations o If it is clear, we must find what he says about it. He wants speed. Rose vs. Lock Example that speaks of the difference between Morality and Law (Holmes) Benjamin Cardozo Explains how a judge goes about making a decision o If pressed, a judge would likely not be able to explain their decisions at each step. Cardozo believes that judges really do make laws – but often cases are open aand shut. Judges are reactive rather than proactive. o They are required to wait for a case to come to them. There are objective and subjective viewpoints The highest function of a judge is to establish the true relations between conduct and profession. Laws shall be uniform and impartial Many gaps have been filled by the development of common law. Cardozo’s 4 Methods Philosophy – Logic/Precedents; Statute History – General history / Context Tradition - Customs Sociology – Social justice Stare Decisis – Let the decision stand (Precedent) Justice Frankfort – Judicial Restraint
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o The job of the judge is to uphold what legislation wants, unless it is a clear constitutional violation. o Judge should not put his views into the decision Justice Douglas – Judicial Activism o There can be differences between precedents. o Job of judge is to see the justice is done. Federal Court System US Supreme Court o 4 justices must agree to grant writ of certiorari to hear a case Circuit Court of Appeals (12) o Circuit courts do not need to listen to each other o They need to listen to the US Supreme Court District Courts (at least 1 per state) (94 total) o District Courts do not need to follow what other District Courts said. o District Courts must follow what their Circuit Court said, but they do not need to follow what other Circuits Said. State Court System – If issue dealing with state law, USSC should listen to State SC. But USSC can also decide if a federal law is being violated by a state court.
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Exam 1 Notes - Oliver Wendell Holmes The life of the law...

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