Exam 1 Study Guide

Exam 1 Study Guide - Exam 1 Study Guide Lesson One: What is...

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Exam 1 Study Guide Lesson One: What is Law? Oliver Wendell Holmes, Jr. – “The Path of the Law” Holmes Judge for the USSC – 30 years – early 1900’s Often wrote the dissenting opinion Ruled on case in sterilization of women w/o consent The life of the law has not been logic; it has been experience.” The law is NOT static We must separate law from morality People think different things as being moral or unmoral. We cannot assume that the law correctly represents morality; the law may lag behind. 2 questions to ask: What is legal? What is moral? “To study the law as an attorney, your job is to predict the future of the law – and the future is crafted/interpreted by judges.” Lawyers job = predict what the judge will do . To Holmes, the law comes from the decisions of judges in particular cases The Bad Man Standard We need to use the Bad Man standard to interpret the law Standard of someone who is just doing the minimum to get by – Would they understand that a specific action is illegal? Statute of Limitations Statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated. If it is clear, we must find what he says about it. He wants speed Rose v. Locke Man broke into woman’s home and forced her to receive oral sex Holding: Statute proscribing "crime against nature" held not unconstitutionally vague as applied to cunnilingus, as the challenged statutory phrase is no vaguer than many other terms describing criminal offenses at common law, which are now codified in criminal codes Example that speaks of the difference between Morality and Law (Holmes) Types of USSC Opinions: Majority At least 5 justices said that the law (side A) should win Concurring Agree with majority in terms of decision, but have different reasoning
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Dissenting Disagree with majority. Believe that Side B should win. (Dissenting opinions may later become law when re-reviewed) Benjamin J. Cardozo – “The Nature of the Judicial Process" Explains how a judge goes about making a decision Believes that judges really do make laws. 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. Four Methods of Judicial Decision Making: Philosophy – logic/precedents/statute History – general history/context (evolution) Tradition – customs Sociology – justice, morals, social welfare, mores of the day Judges are reactive not proactive Stare Decisis Let the decision stand (precedent) Promote consistency in the law Job of a judge is to uphold what legislation writes, not to put his views in Justice Frankfort Judicial restraint
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Exam 1 Study Guide - Exam 1 Study Guide Lesson One: What is...

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