BUL 4310 EXAM 1-3 STUDY GUIDE
Holmes view - Answer -law = rules of conduct enforced by courts
Blackstones' view - Answer -a rule of civil conduct by a supreme power commanding
what is right and prohibiting what is wrong
Hobbesian view - Answer -men & women submit rights to state so that through the lar,
the state can protect their lives and property (men would do bad if not controlled)
Montesquieu - Answer -checks and balances and separation of power
Locke - Answer -liberating view- law should extend freedoms and grow rights. social
contract means individuals and govt have to respect each others rights
Ethics and morals influence law - Answer -drunk driving, racism, sexual harassment,
slaver
Moral and Ethical codes - Answer -George Bernard Shaw: most ppl don't reason out
own moral/ethical code, therefore we interpret moral viewpoints from history
Civil disobedience - Answer -knowingly breaking law to make statement against it
Law effects morals and ethics - Answer -(less common than vice versa) Brown v Board,
Roe v Wade
Purposes of Law - Answer -Facilitates deals and compromises: requires ppl to honor
word, maintains order, stability, justice, fairness, equality, and influences people's
conduct
Code law - Answer -systematic collection of laws
Code of Hammurabi (Babylonian) - Answer -reciprocal law lex talionis (punishment eye
for eye). code was from Shamash, sun god. Shaw addressed that laws from gods are
inflexible and hard to update
Code of Solon (Greece) - Answer -law comes from human reason.. not gods. Laws
were rule of the people (free men who earned property but still move to democracy)
Code of Justinian (Rome) - Answer -Civil law system= systemized to find law by
subject. Most prevalent in the world outside of US
Code of Napoleon (France) - Answer -Law depends heavily on code written by
legislature (Louisiana uses Napoleon > common law)
,Common law - Answer -case law or judge-made law. William the Conquerer: Normans
overthrew English king and furthered [not created] common law by writing down cases
to keep verdicts consistent. Law yearbooks: laws est. by legal precedents. Stare Decisis
"let decision stand"
"Commentaries on the Laws of England" by William Blackstone - Answer -1769
"Greatest law reference text from British"
"The Common Law" Oliver Holmes Jr - Answer -1881 Most recent to shape common
law
Important concepts in common law system - Answer -Precedents and stare decisis:
"check" on power of judges and requires precedent is followed
Classification of crimes - Answer -crime- wrong against public [only prosecutor can
commence criminal proceedings] (guilt)
tort- wrong against private person/business [victim can bring tort claim] (liable)
Types of crimes - Answer -felonies: graver offenses = > a year in prison, sometimes
removes rights
misdemeanors: lesser offenses < year
offenses: administratively handled, no jail time
Treason: betraying one's country- only crime specifically in constitution
Capital Crimes: death penalty-only for taking a life
Burglary (changed over time), larceny= theft w no force, robbery=force
Hierarchal nature of courts - Answer -Supreme court--- circuit courts(12) --- district
courts(94)
If district makes decision, only that district court is bound. If circuit, then districts in the
circuit are bound. If supreme, everyone is bound.
-You file case w district, appeal to circuit, petition writ of certiroar w SCOTUS.
Stare decisis can be overcome - Answer -can be overcome: Brown v. Board
(overturned separate but equal) & Hope v Pezler (tie a person to post w/o bathroom)
How? court goes around by distinguishing facts, therefore precedent is mere dicta
Substantive/Procedure Law - Answer -substantive: creates, defines, regulates
procedural: rules used to enforce substantive (trial lawyers and style)
Public/private law - Answer -public: govt laws b/w people and govt (tax)
private: ppl & ppl / ppl & businesses
Criminal/civil law - Answer -criminal: wrong against society (murder, rape)
civil: wrong against ppl (lawsuits)
*** Civil law system = code, Common law system = case
,Case/statutory law - Answer -case: based on precedent (common law)
statutory: based on statutes from legislature (including code) "uniform statues" most
states adopt Uniform Commercial Code (deals with legal contracts and their
enforcement)
Legal citation - Answer -parties names (defendant second), volume, reporter (US= US
Reports), page, date.
Types of govt - Answer -Unitary [1 sovereignty = most countries i.e. China]
Federalism [dual sovereignty b/w fed govt and states ~ 30 countries i.e. US]
Confederacy [states> govt= very few places]
-EU: worldwide trend towards federalism
Jurisdiction - Answer -power to speak the law [50 states + 1 fed]
State sovereignty - Answer -states can't make treaties, make laws contradicting US
law, print own money, or separate from union.
Jurisprudency - Answer -theory/philosophy of law. (approaches not mutually exclusive)
Historical school of jurisprudence - Answer -law should be interpreted by looking at
origins, laws are evolving.
Oliver Holmes (Common law) = law not logic but experience
Utilitarianism - Answer -greatest good for greatest #. How law affects all, or just
decision makers [ethical egotism]
Jeremy Bentham (founder), John Mill, George Shaw, sum of benefits- sum of
drawbacks
Law & economics - Answer -("Chicago school"): can't separate economics and you
must understand market behavior. Strong influence on law especially potential
conservatives. Richard Posner, Gary Becker, and Robert Bark
Positivism - Answer -laws should be enforced whether or not it makes sense. John
Austin & AKA Hart
Natural law - Answer -values that are morally right/wrong. > than laws stated.
-William Garrison: abolitionist paper "The Liberator" = Constitution "covenant w death"
bc it allowed slavery
-Immanuel Kant: deontological (duty-based) approach requires to think of means and
not just ends. "categorical imperative"= everyone should behave how they want the law
to act.
deontological-duty&morality teleological-ends justify means
-Egalitarianism: equitable distribution of rights, duties, and burdens
-John Rawls "A theory of justice"- we ought to remove veil of ignorance to think more
objectively and assume our income, intelligence, looks could all be redistributed at
, random. Rawls=worlds greatest natural law proponent of recent times.. Dec of
independence > humans (law, nature, God)
-do animals have rights? protection > "fair market value"
Legal Realism - Answer -must take into account how ppl really behave & understand
judges, lawyers, etc.
Benjamin Cordozo, Oliver Holmes
-Cultivation theory: Gerbner research effects of tv "CSI effect" = jurors expect definitive
evidence
The Thing - Answer -Scandinavian viking legislative body- predecessors to jury but had
background knowledge.
Judges - Answer -trial court judges- ensure lawyers play by rules, make quick decisions
appellate court judges- determine whether trial court made error, lot of time
Juries - Answer -ordinary ppl
-grand juries: 18-24 jurors sit for a long time, deciding whether to issue criminal
indictment
-petit jurors: more typical~6-12. 12 for capital, eminent domain, and fed crime
* crime cases=unanimous. civil (fed&fl unanimous)= 2/3 or 3/4
Voir dire and jury empanelment - Answer -voire dire (give the verdict)- jurors asked
questions for lawyers to exclude
-for-cause challenges: juror is biased (need proof)
-peremptory challenges: lawyers use any reason except race or sex
Civil Law & Common law - Answer -Civil- code based law. judges don't make it, just
apply it. An inquisitor establishes facts, ask questions, & is a judge. Only 1 decision
maker (could b based) -- used in EU, LATAM, Africa, Asia, Louisiana
Common-based on precedent. judge est laws, not facts. most questions by parties.
judge may interview. defending yourself is called pro se
Inquisitorial approach vs. Adversarial approach - Answer -inquisitorial: used in Civil law
countries. judges play a large role=develop facts and sometimes appoint
hussiers(legally appointed court officers) to go out & develop facts. Bias, laziness, or
incompetence= disadvantages
adversarial: common law systems. facts emerge when opposing sides present cases.
judges less involved, but they interpret & develop law. Lawyers develop facts &
responsible for outcome. side w more $ & better lawyers=disadvantages
Intellectual property - Answer -protects patents, trademarks, copyrights
Article 1 Section 8
Why do we need intellectual prop law - Answer -1) incentive to innovate 2) desire to
share innovations.
Holmes view - Answer -law = rules of conduct enforced by courts
Blackstones' view - Answer -a rule of civil conduct by a supreme power commanding
what is right and prohibiting what is wrong
Hobbesian view - Answer -men & women submit rights to state so that through the lar,
the state can protect their lives and property (men would do bad if not controlled)
Montesquieu - Answer -checks and balances and separation of power
Locke - Answer -liberating view- law should extend freedoms and grow rights. social
contract means individuals and govt have to respect each others rights
Ethics and morals influence law - Answer -drunk driving, racism, sexual harassment,
slaver
Moral and Ethical codes - Answer -George Bernard Shaw: most ppl don't reason out
own moral/ethical code, therefore we interpret moral viewpoints from history
Civil disobedience - Answer -knowingly breaking law to make statement against it
Law effects morals and ethics - Answer -(less common than vice versa) Brown v Board,
Roe v Wade
Purposes of Law - Answer -Facilitates deals and compromises: requires ppl to honor
word, maintains order, stability, justice, fairness, equality, and influences people's
conduct
Code law - Answer -systematic collection of laws
Code of Hammurabi (Babylonian) - Answer -reciprocal law lex talionis (punishment eye
for eye). code was from Shamash, sun god. Shaw addressed that laws from gods are
inflexible and hard to update
Code of Solon (Greece) - Answer -law comes from human reason.. not gods. Laws
were rule of the people (free men who earned property but still move to democracy)
Code of Justinian (Rome) - Answer -Civil law system= systemized to find law by
subject. Most prevalent in the world outside of US
Code of Napoleon (France) - Answer -Law depends heavily on code written by
legislature (Louisiana uses Napoleon > common law)
,Common law - Answer -case law or judge-made law. William the Conquerer: Normans
overthrew English king and furthered [not created] common law by writing down cases
to keep verdicts consistent. Law yearbooks: laws est. by legal precedents. Stare Decisis
"let decision stand"
"Commentaries on the Laws of England" by William Blackstone - Answer -1769
"Greatest law reference text from British"
"The Common Law" Oliver Holmes Jr - Answer -1881 Most recent to shape common
law
Important concepts in common law system - Answer -Precedents and stare decisis:
"check" on power of judges and requires precedent is followed
Classification of crimes - Answer -crime- wrong against public [only prosecutor can
commence criminal proceedings] (guilt)
tort- wrong against private person/business [victim can bring tort claim] (liable)
Types of crimes - Answer -felonies: graver offenses = > a year in prison, sometimes
removes rights
misdemeanors: lesser offenses < year
offenses: administratively handled, no jail time
Treason: betraying one's country- only crime specifically in constitution
Capital Crimes: death penalty-only for taking a life
Burglary (changed over time), larceny= theft w no force, robbery=force
Hierarchal nature of courts - Answer -Supreme court--- circuit courts(12) --- district
courts(94)
If district makes decision, only that district court is bound. If circuit, then districts in the
circuit are bound. If supreme, everyone is bound.
-You file case w district, appeal to circuit, petition writ of certiroar w SCOTUS.
Stare decisis can be overcome - Answer -can be overcome: Brown v. Board
(overturned separate but equal) & Hope v Pezler (tie a person to post w/o bathroom)
How? court goes around by distinguishing facts, therefore precedent is mere dicta
Substantive/Procedure Law - Answer -substantive: creates, defines, regulates
procedural: rules used to enforce substantive (trial lawyers and style)
Public/private law - Answer -public: govt laws b/w people and govt (tax)
private: ppl & ppl / ppl & businesses
Criminal/civil law - Answer -criminal: wrong against society (murder, rape)
civil: wrong against ppl (lawsuits)
*** Civil law system = code, Common law system = case
,Case/statutory law - Answer -case: based on precedent (common law)
statutory: based on statutes from legislature (including code) "uniform statues" most
states adopt Uniform Commercial Code (deals with legal contracts and their
enforcement)
Legal citation - Answer -parties names (defendant second), volume, reporter (US= US
Reports), page, date.
Types of govt - Answer -Unitary [1 sovereignty = most countries i.e. China]
Federalism [dual sovereignty b/w fed govt and states ~ 30 countries i.e. US]
Confederacy [states> govt= very few places]
-EU: worldwide trend towards federalism
Jurisdiction - Answer -power to speak the law [50 states + 1 fed]
State sovereignty - Answer -states can't make treaties, make laws contradicting US
law, print own money, or separate from union.
Jurisprudency - Answer -theory/philosophy of law. (approaches not mutually exclusive)
Historical school of jurisprudence - Answer -law should be interpreted by looking at
origins, laws are evolving.
Oliver Holmes (Common law) = law not logic but experience
Utilitarianism - Answer -greatest good for greatest #. How law affects all, or just
decision makers [ethical egotism]
Jeremy Bentham (founder), John Mill, George Shaw, sum of benefits- sum of
drawbacks
Law & economics - Answer -("Chicago school"): can't separate economics and you
must understand market behavior. Strong influence on law especially potential
conservatives. Richard Posner, Gary Becker, and Robert Bark
Positivism - Answer -laws should be enforced whether or not it makes sense. John
Austin & AKA Hart
Natural law - Answer -values that are morally right/wrong. > than laws stated.
-William Garrison: abolitionist paper "The Liberator" = Constitution "covenant w death"
bc it allowed slavery
-Immanuel Kant: deontological (duty-based) approach requires to think of means and
not just ends. "categorical imperative"= everyone should behave how they want the law
to act.
deontological-duty&morality teleological-ends justify means
-Egalitarianism: equitable distribution of rights, duties, and burdens
-John Rawls "A theory of justice"- we ought to remove veil of ignorance to think more
objectively and assume our income, intelligence, looks could all be redistributed at
, random. Rawls=worlds greatest natural law proponent of recent times.. Dec of
independence > humans (law, nature, God)
-do animals have rights? protection > "fair market value"
Legal Realism - Answer -must take into account how ppl really behave & understand
judges, lawyers, etc.
Benjamin Cordozo, Oliver Holmes
-Cultivation theory: Gerbner research effects of tv "CSI effect" = jurors expect definitive
evidence
The Thing - Answer -Scandinavian viking legislative body- predecessors to jury but had
background knowledge.
Judges - Answer -trial court judges- ensure lawyers play by rules, make quick decisions
appellate court judges- determine whether trial court made error, lot of time
Juries - Answer -ordinary ppl
-grand juries: 18-24 jurors sit for a long time, deciding whether to issue criminal
indictment
-petit jurors: more typical~6-12. 12 for capital, eminent domain, and fed crime
* crime cases=unanimous. civil (fed&fl unanimous)= 2/3 or 3/4
Voir dire and jury empanelment - Answer -voire dire (give the verdict)- jurors asked
questions for lawyers to exclude
-for-cause challenges: juror is biased (need proof)
-peremptory challenges: lawyers use any reason except race or sex
Civil Law & Common law - Answer -Civil- code based law. judges don't make it, just
apply it. An inquisitor establishes facts, ask questions, & is a judge. Only 1 decision
maker (could b based) -- used in EU, LATAM, Africa, Asia, Louisiana
Common-based on precedent. judge est laws, not facts. most questions by parties.
judge may interview. defending yourself is called pro se
Inquisitorial approach vs. Adversarial approach - Answer -inquisitorial: used in Civil law
countries. judges play a large role=develop facts and sometimes appoint
hussiers(legally appointed court officers) to go out & develop facts. Bias, laziness, or
incompetence= disadvantages
adversarial: common law systems. facts emerge when opposing sides present cases.
judges less involved, but they interpret & develop law. Lawyers develop facts &
responsible for outcome. side w more $ & better lawyers=disadvantages
Intellectual property - Answer -protects patents, trademarks, copyrights
Article 1 Section 8
Why do we need intellectual prop law - Answer -1) incentive to innovate 2) desire to
share innovations.
