This same theory was also used to prohibit states from imposing regulations

This same theory was also used to prohibit states

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-This same theory was also used to prohibit states from imposing regulations such as minimum wage & child labor laws on private businesses. -Agreed with idea that “fundamental rights” were protected, however, not every right enumerated in BoR was “fundamental” -Over time all of the BoR protections have been incorporated -White SCOTUS found incorporation necessary that didn’t mean that these BoR provisions were not already codified in individual states. Some states had more protection afforded to their citizens -As an example, some states created a right to privacy in matter such as abortion and bearing arms long before SCOTUS found “penumbra” in the Constitution. August 27, 2018 Criminal Court System Fundamental Rights -No Relationship between the Due Process clause and the bill of Rights -Instead there are some rights that are essential to “due process” and which therefore should be protected -Due Process clause has an independent meaning prohibiting state action that violates rights deemed “fundamental” Selective Incorporation -This combines elements of Fundamental Rights and Total Incorporation in a modified form -Reject the ideal that the rights protected under the BoR are automatically protected under the DP clause of the 14 th Amendment, but rather are a guide to determine the meaning of DP -The approach favors determination on a case-by-case basis Chapter 3 Types of Law Civil & Criminal Civil Law Primarily involves suits between private parties, although the government can sometimes be involved Losing party doesn’t have risk incarceration, rather relief is generally $ Major areas of civil law include: Contracts, Torts, Property & Family law
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In most civil cases the burden of proof is “preponderance” of the evidence or more likely true than not (51%). Cases involving either punitive damages or involuntary commitment have a higher burden called “clear & convincing (66%)” Res Judicata meaning the “issue has already been decided” is the civil laws version of criminal law’s prohibition on double jeopardy In civil law, the issue of a plaintiff’s own negligence is at issue in determining liability and damages Protections from the BoR do not apply in civil matters, i.e. Defendant may be called to testify by the plaintiff. Criminal Law Action is brought by the government against the individual. The victim is not able to pursue a criminal action on their own, instead, they are the state’s witness. Crime is defined as: 1) violation of criminal law for which a punishment is prescribed; the defendant must have 2) intended to act and there is no legally acceptable 3) defense/justification As part of a prosecution the state must show the Defendant had the mens rea “guilty mind or intent” AND the actus rea “guilty act”. This could also involve a failure to act where the defendant had a duty to act (i.e. failure to pay taxes). There is no requirement to prove a defendant’s motive.
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  • Spring '14
  • criminal law, Supreme Court of the United States, Fourth Amendment to the United States Constitution, Trial court

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