Solution Manual for Introduction to Law, 7th Edition

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1CHAPTER 1THE HISTORICAL BASIS AND CURRENTSTRUCTURE OF THE AMERICAN LEGALSYSTEMCHAPTER OUTLINEThe Historical Basis of American Law•Before the Government•The Results of the Revolution•The Influence of Political Theories•Balance as the Key to SuccessThe Modern Legal System•The Sources of Law•The Hierarchy of Law•The Exception to the Rule of HierarchyLECTURE KEYS1.Early American settlers came to escape religious persecution and take advantageof economic opportunities. Settlers used many of the laws of their homelands andbrought their prevailing attitudes toward religion. Under these laws and attitudes,people were charged and punished by the government for committing acts thatwere regarded as sinful and thus illegal.2.As the population grew, foreign governments increased their efforts toestablish a formal and permanent influence in the New World byestablishing government offices and authorities and imposing taxes on therich natural resources and products of America.3.Many of the colonists did not want to be under the rule of a foreign governmentthat they believed would not be responsive to the will of the people and wouldnot allow them to maintain the personal freedoms they had gained by leavingthose countries in the first place.4.The need to establish a permanent government structure in order to manage issueson a local basis, raise a military for defense, and avoid rule by another countrywas realized. Despite some movement toward creating many small independentnations, representatives of the colonies agreed success was more likely if therewas a unified front.5.The concept of crime being equal to what was considered wrong or sinful asdefined by those in authority was based on the naturalist theory—a belief that allpersons were born with the ability to distinguish the difference between right andwrong and the knowledge of their responsibility to act in the proper manner.See Practical Application1.1 and the Point for Discussion.

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26.Increases in population from different cultures with different mores, values, andrules resulted in a more diverse group of legal representatives and differentopinions of right and wrong. This in turn led to the need for a more detailed anddeveloped legal system.7.The first formal and international action by the colonies as a collective group wastheir issuance of the Declaration of Independence. Today most Americansconsider it the bedrock of our nation, but originally it was more or less aformality. Essentially, independence was in name only, and at first was defendedby a largely unsophisticated, poorly armed, and disorganized band of citizensagainst the potential threat of Great Britain and other governments.8.The new central government was guided by the adoption of the Articles ofConfederation. The Constitution was not passed until 11 years later inSeptember 1787.9.The Articles of Confederation bore little resemblance to the current Constitution.Under the Articles of Confederation,•each state sent delegates as members of Congress who then nominated andelected a president among themselves;•the delegates wrote and passed all laws;•the delegates acted as judges in disputes among the states;•the delegates negotiated treaties; and•the duties assigned the president were to preside over sessions of Congress andact as an ambassador to, and receive representatives of, other governments’ alllegal disputes with respect to individuals continued to be dealt with by eachstate’s own system of justice.10.The Articles of Confederation and Congress were largely ineffective on a locallevel. The national government had none of the following:•Enforcement power•Judges•Jails•Ways to force collection of the monies that each state was supposed to contribute•Money of its own and no way to get it other than by voluntary contribution•Organization to support a national army•Staff of government employees to operate the government when Congress wasnot in session11.An early and real issue for the permanent government was whether to allow thestates to continue in existence in any sort of individual fashion. Several delegates,including some from the South, believed individual states should be abolished andall people and legal issues should be governed by a central authority. In history,small states within a country often ended up in conflict with one another. In thisinstance, however, the idea failed to gain popular support. The citizens werefiercely independent and sought to preserve as much personal freedom fromgovernment as possible.12.Separate state governments and a unified national government with specificfunctions were created. The states were left intact to respond effectively andquickly to the needs of citizens and individual state economies. The national

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3government was formed to protect the fundamental rights of all citizens andensure that state governments would not interfere with individual rights. Thenational government would also handle national issues such as interstatecommerce, Indian affairs, immigration, and international issues such as treatiesfor trade and nonaggression.13.The members of the Constitutional Convention agreed on three distinct branchesof government, each with separate duties and all with the obligation to cooperatewith and monitor the other branches to ensure that no one branch obtained toomuch power. This separation of powers was a direct attempt to prevent themonarchy type of government that so many colonists sought to avoid by comingto America.14.The first branch of government created was the legislative branch and was calledCongress.•Congress would be elected by the people (members of the House ofRepresentatives directly by the people, and members of the Senateindirectly—that is, by state legislatures until the Seventeenth Amendment wasratified in 1913).•Congress would retain the sole authority to make statutory law. In this way, thepeople as a whole would always have significant influence in making the lawsthat all persons were required to follow.15.The second branch of government created was the executive branch. Thepresident was given authority to head the executive branch at the national level.This structure is paralleled in the states where each state executive branch isheaded by a governor.16.Under the Constitution, the president (the head of the executive branch)•is elected indirectly by the people through the electoral college;•has power to approve or reject laws passed by Congress, although the power isnot absolute and the president cannot deny the authority of Congress to enactlaw if it is, in fact, the will of the majority that such law be enacted (rejectionby the president of a law enacted by Congress is known as theveto powerandcan be overridden by a significant majority of Congress);•has several important functions with respect to foreign affairs; and•has the ultimate duty to enforce the laws of the United States.17.The third and final branch of government was the judiciary, which was needed toprotect the Constitution and serve as mediator of disputes. This branch ofgovernment has the authority and responsibility to interpret laws and protect theConstitution from violation by Congress, the president, or the states. Although theConstitution vests the ultimate authority to enforce laws in the president, inpractice, the judiciary also assists in enforcement when the courts apply law tospecific cases.18.Independent operation of the branches but with the power of the branches toinfluence one another better protects one branch from obtaining too much poweror using its power unwisely. Each branch can use its specially designated powersto make sure the other branches act within their constitutionally prescribedlimits—checks and balances.

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419.Congress, with the approval of the people, subsequently passed the Bill ofRights, which protects essential fundamental human freedoms from governmentinfringement on those matters presumed to be inherently personal and a matterof choice for all human beings. The following rights are specifically protected:•Freedom of speech, religion, and press; peaceable assembly; petitions forgovernmental change (First Amendment).•Right to bear arms (Second Amendment).•Freedom from unreasonable invasion of home by the government forpurposes of search and seizure of persons or property, or occupation bymilitary other than as prescribed (Third and Fourth Amendments).•Right to have an independent judicial magistrate determine if probable causeexists before a search or arrest warrant can be issued (Fourth Amendment).•Right not to be tried twice for the same crime (Fifth Amendment).•Right not to have persons or property seized without due process (FifthAmendment).•Right to a speedy and public trial (Sixth Amendment).•Right to an impartial jury in the jurisdiction where the alleged crime occurredor the dispute is governed by common law (Sixth and Seventh Amendments).•Freedom from forced self-incrimination (Fifth Amendment).•Right to counsel in criminal prosecutions (Sixth Amendment).•Right of the accused to know of the crime alleged (Sixth Amendment).•Right of the accused to confront the witnesses for the prosecution (SixthAmendment).•Right not to be subjected to excessive bail (Eighth Amendment).•Freedom from cruel or unusual punishment (Eighth Amendment).•Freedom from use of the Constitution to limit individual rights not mentioned(Ninth Amendment).•Right of the states to govern on matters not addressed in the Constitution orits amendments (Tenth Amendment).20.The Supreme Court has been increasingly asked to resolve issues that determinethe rights of persons to be free from governmental intrusion into their privatelives. From time to time, additional language regarding these freedoms has beenadded through amendments to the Constitution as Congress and the people havedeemed appropriate.21.All law created in this country must be consistent with, and embody the spiritof, the rights guaranteed in the Constitution and its Bill of Rights. Thisincludes legal standards issued by the executive branch to clarify and definestatutory law, and those issued by the judiciary, which interprets and appliesthe law to individual situations.See the answers to Assignments 1.1 and 1.2.22.The positivist theory proposes that a government should have a single entity todetermine what is right and wrong as a matter of law and that it is not subject toquestion or challenge. This theory is evident in the court of last resort—the U.S.Supreme Court. Short of a constitutional amendment, the decisions of theSupreme Court are not subject to any other authority.

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523.Sociological theory suggests that people as a group determine what is and is notacceptable, based on the needs of society at the time. It holds that the law is in aconstant state of change and adjusts accordingly to the needs of society.24.The U.S. Constitution is the product of three philosophies: naturalist theory,positivist theory, and sociological theory. If citizens believe a law is wrong, theycan lobby to have it changed. If they believe their elected representatives are notenacting laws that embody the beliefs of the people, they can elect newlegislators. If the legislature passes a law that appears to violate the Constitution,citizens can challenge the law in those courts that have the power to resolve theissue by upholding the statute or invalidating it as unconstitutional.25.Courts continually face the task of balancing competing interests. The traditionalbalance is the challenge facing every judge to enforce the laws to the extentnecessary to protect the rights of the public while permitting the greatest amountof personal freedom possible for the individual. Simply stated, the traditionalbalance equals the rights of the people versus the rights of the individual.26.In essence, the modern balance is the need to enforce existing legal principlesbased on the Constitution versus the need to adopt legal principles more reflectiveof current society. This balance has been accomplished without ever disturbing thefundamental structure set forth in the Constitution. Indeed, the modern balance isthe ability to enforce law consistently while retaining enough flexibility to adapt tochanges in societal standards.See Practical Applications 1.2, 1.3, and 1.4 and the Points for Discussion.27.The first government was a single Congress of senators and representatives fromthe 13 colonies (the Senate with two senators elected by each state legislature andthe House of Representatives with members proportionate to the population ofeach state), a president whose role was still not well defined beyond basic dutieslisted in Article II of the Constitution, and a single court to serve as the judiciaryfor an entire nation.28.Today, that same Congress includes more than 500 voting senators andrepresentatives elected by the population of each of the 50 states. The presidencyhas developed into a complicated office that not only represents this country inforeign affairs but also oversees the administrative agencies of government andapproves or rejects all acts of Congress. The federal judiciary has grown toinclude three separate levels: The Supreme Court, 13 U.S. circuit courts ofappeals, and more than 90 U.S. district courts.29.Law, which is also known as a legal standard or legal principle, comes in differentforms and from different sources. It can apply to people in general, a particulargroup of citizens, or a specific person or entity such as a corporation.30.Statutory lawis enacted by a state legislature or by Congress. If a state legislatureenacts a law, all persons and entities legally present in the state must obey it. IfCongress enacts a federal law, all persons legally present in the nation arerequired to follow it. Once approved by the legislature, a statute will generallycontinue indefinitely as law until either the legislature repeals (deactivates) it orthe high court of the state or federal government rules it unconstitutional.

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631.Federal laws must be consistent with the U.S. Constitution, whereas state lawsmust be in accordance with both the state and the federal constitutions.Similarly, no state constitution can conflict with the U.S. Constitution. Theprovision of the U.S. Constitution declaring that federal laws take precedenceover conflicting state laws is known as thesupremacy clause.See Exhibit 1.1: Sample Legislative Language.32.The language of statutes is broad enough to include as many potential situationsas possible. However, if a court determines that a law is written so vaguely thatcitizens cannot determine exactly what is and is not acceptable conduct, the lawwill not be upheld as valid. The Constitution guarantees the right to fair notice ofwhat is considered illegal conduct and what is required in a particular situation.33.Injudicial law,the judiciary interprets law from other sources and has power onoccasion to create legal standards known as case law. Judges may consider a legalstandard and determine whether it was meant to apply to the circumstances of aparticular case. Persons in similar situations may then look to the judge’s decisionto guide their own conduct. When no law exists, judges are responsible formaking law or extending decisions of judges in previous similar cases.34.The continuation of existing legal standards is commonly referred to asstaredecisis(literally, “let the decision stand”). Following the same legal principlesin similar cases gives consistency and stability. People can look to the past forguidance in what to expect from the courts in the future.35.When a court appliesstare decisis,it is following a precedent—that is, apreviously established legal standard.See “Case Briefs: Instructor Notes”:In the Matter of the Estate of Marc R.Beauregard,456 Mass. 161, 921 N.E.2d 954 (Mass., 2009).36.In many sectors of our society and economy, large numbers of people or areas ofcommerce need specific guidelines. It would be unduly burdensome andincrease the likelihood of inconsistent decisions from different judges indifferent areas if the judiciary had to handle all cases that arose. Yet the areas areso specific as to require attention from the government that would be toocumbersome of the Congress. The response to dilemmas of this sort has been theadvent ofadministrative law.37.The executive branch has the primary responsibility to determine when a law hasbeen violated or whether the law is even applicable to a particular situation.Administrative agencies are overseen bythe executive branch with directinfluence by the Congress and the judiciary. At the federal level, the president isassisted by administrative agencies in carrying out the law enacted by Congress.38.Administrative law primarily consists of two elements: administrative regulations(sometimes called rules) and administrative decisions. Administrative law is anextension of statutory law established by Congress. Failure to obeyadministrative law can result in penalties or even criminal prosecution.39.Administrative agencies issue regulations or rules that more specifically definethe broadly written statutes.

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740.Administrative decisions issued for highly specific cases have the same effectof law as judicial or legislative law. These cases usually involve persons orentities that challenge the authority of the agency to issue or enforce aparticular regulation.See Exhibit 1.2: Entitlement of Tenants to Occupy.41.U.S. law is governed by a distinct hierarchy. First in the hierarchy is the U.S.Constitution. Although technically the Constitution and its amendments arestatutory law, they are considered superior to allother laws because theyestablished the governmental structure and the process for creating all other laws.42.Next in the hierarchy of laws are the legislative (statutory) acts of Congress.Statutes have greater weight than judicial or administrative law because statutesare enacted by Congress and state legislatures, which are composed of peopleelected by the people. Thus, statutes are most likely to represent the lawsintended for and desired by the majority.43.The judiciary has the authority to interpret legislation and to fill in gray areaswhere the law is unclear or nonexistent. The judiciary is also obligated toensure that the law is consistent with the Constitution. When the judiciarydetermines that the law does not meet the requirements of the Constitution, ithas the authority to declare the law invalid and thereby supersede the ordinarilysuperior statutory law.44.Constitutionality is the only basis for judicial rather than statutory law controllingan issue.45.Last in the hierarchy is administrative law. Administrative agencies assistCongress by issuing regulations and decisions that clarify and aid in theenforcement of statutes. However, Congress has the right to eliminate an agencyor regulations that are inconsistent with legislative objectives. The judiciary alsohas the authority to overrule actions of an agency when such actions areunconstitutional.See the answers to Assignment 1.3.CASE BRIEFS: INSTRUCTOR NOTESWhat follows is the case brief for the case included within the seventh edition text.They can be used to check case brief assignments or to quickly review the materials.In the Matter of the Estate of Marc R. Beauregard, 456 Mass. 161, 921 N.E.2d954 (Mass., 2009)Facts:Decedent died unmarried and childless, leaving his parents as sole heirs.Plaintiff, who lived at the same address as decedent, produced a copy of decedent’swill in which significant assets were bequeathed to plaintiff. Plaintiff filed a petitionfor probate of a “copy of a will” because the original will could not be located.Decedent’s parents and siblings filed objections to the petition. The trial court appliedthe evidentiary presumption that when a will that was known to exist cannot be found,it is presumed the decedent destroyed the will with the intent to revoke it. The trialcourt found that decedent had indeed executed a will but that plaintiff failed to rebut

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8the presumption that decedent destroyed the will with the intent to revoke it. Plaintiff’spetition was dismissed. Plaintiff appealed.Issue:Whether the trial court erred in finding that plaintiff failed to rebut thepresumption that the will that was known to exist and could not be found wasdestroyed by decedent with the intent to revoke the will.Law:Where a will once known to exist cannot be found after the death of the testator,there is a presumption that it was destroyed by the maker with an intent to revoke it.Miniter v. Irwin, 331 Mass. 8, 9 (1954)It must be demonstrated by a preponderance of the evidence that the testator didnot destroy the will with the intent of revoking it.Matter of the Estate of Leggett, 584So. 2d 400, 403 (Miss. 1991)Rule:The trial court found that decedent was young, healthy, and fully competent atthe time of his death, so it is unlikely he lost the will. The trial court further noted thatthere was a brief time between the date the will was executed and the decedent’s death,which left little time to lose the will. The trial court made its decision to deny petitionfor probate based on its finding that plaintiff failed to rebut by a preponderance of theevidence the presumption that the will that could not be located was destroyed by thedecedent with the intent to revoke it.Affirmed.ASSIGNMENT 1.1Consider the following situations and identify which parts of the Bill of Rights wouldallegedly protect the behavior.1.The right to have a parade to celebrate Gay Pride.Answer:First Amendment’s right to peaceable assembly.2.The right to not be forced to pray, or participate in prayer, in a public school.Answer:First Amendment’s freedom to establish religion.3.The right to refuse entry to one’s home by a government official who does not havea warrant.Answer:Fourth Amendment’s freedom from unreasonable search.4.The right to refuse to answer questions by the police.Answer:Sixth Amendment’s right to counsel in criminal prosecutions.5.The right to be released from jail before trial if the defendant deposits a sum withthe court that is reasonably expected to deter the defendant from fleeing thejurisdiction or committing additional crimes.Answer:Eighth Amendment’s right to bail that is not excessive under thecircumstances.6.The right to set fire to an American flag in a public place as a political statement.Answer:First Amendment’s right to free speech.7.The right of media to be present during the trial in a criminal prosecution.Answer:Sixth Amendment’s right to a public trial.

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98.The right to carry or own multiple registered weapons.Answer:Second Amendment’s right to bear arms.9.The right of a defendant to refuse to testify in a criminal trial against himself orherself.Answer:Fifth Amendment’s freedom from forced self-incrimination.10.The right of a defendant charged with sexual assault to force the alleged victim totestify at trial and answer questions about the allegations.Answer:Sixth Amendment’s right of confrontation of witnesses for theprosecution.ASSIGNMENT 1.2Identify five modern-day situations where the rights of an individual are at odds withthe rights of the public as a whole.Answer:Responses will vary but should reflect the boundary between individualfreedoms and the best interests of society.Example:The right of a motorcyclist to choose whether to wear a helmet versus theright of the public to protect themselves from the costs to the government in providinglong-term care for individuals who sustain severe brain and other serious relatedinjuries as a result of a motorcycle accident in which the injured individual did not weara helmet.ASSIGNMENT 1.3Examine the following situations and explain which source of law would mostappropriately deal with each situation.1.The criteria used to determine whether an individual is placed on the “No FlyList” for passengers traveling by air.Answer:Because ensuring the safety of air travelers is the responsibility offederal law enforcement agencies, these administrative agencies would create thecriteria used to determine the No Fly List. However, because the list raises civilliberties and due process concerns, due in part to the potential for ethnic,religious, economic, political, or racial profiling and discrimination, the judiciaryis likely to be asked to determine whether the criteria used to determine the NoFly List violate constitutional rights.2.The definition of what constitutes driving under the influence.Answer:Operating a vehicle on public roads affects virtually all citizens. As aresult, the legal standards would generally be statutory. However, the specificcircumstances of an individual accused of having violated those laws would bemost properly addressed by a judge who could consider all of the relevant facts ofthe particular situation.

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103.An individual is arrested after purchasing eggs, then hatching and raising severalbaby chicks to use in a home school science project on the basis they violated alaw prohibiting harboring livestock within city limits. At 4 months of age, and theend of the experiment, the chicks were given to a farmer.Answer:The legal standards with respect to what types of activities are allowedwithin city limits would be best addressed by an elected body (e.g., zoningcommittee) representing the residents of that city. This would ensure that thestandards are consistent with the best interests of the majority of the residents.INTERNET ASSIGNMENT 1.1Locate the official government Web site for each branch of state government where youlive.Answers will vary.INTERNET ASSIGNMENT 1.2Using the Internet, determine whether the constitution for your state has been amended,and if so, when.Answers will vary.PRACTICAL APPLICATION 1.1Point for Discussion:Even today, cultural differences among even members of thesame religion can be profound in terms of the definitions of acceptable conduct. Canyou identify any similar differences that exist today, or that may have existed at thetime of American colonization, that could have legal ramifications?Conflicting views toward abortion are a strong illustration of how cultural differencesamong members of the same religion have legal ramifications. As an example,throughout Christianity, there is a shared belief that life is valued and should beprotected. However, within Christianity there are intensely conflicting views aboutwhether a pregnant woman has a right to make decisions that affect her body orwhether her rights are superseded by the right of her unborn child to survive.Christians within cultures that have a more liberal viewpoint are more likely to supporta woman’s right to choose, and those within cultures that have a more conservativeviewpoint staunchly support the right to life. Legislatures have grappled with the issueand passed laws that they believe reflect the values of the majority of the community.The U.S. Supreme Court has examined those laws closely, most famously throughRoev. Wade, and has nullified any laws that it finds violate the rights of individuals asguaranteed in the Constitution.Other examples of cultural differences include conflicting views toward gaymarriage, physician-assisted suicide, and the death penalty.

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11PRACTICAL APPLICATION 1.2Point for Discussion: What do you think of the reasoning of the Justice in explainingthe balance that must be struck when competing values are in conflict?A well-structured argument will take into account on the one hand, the businessowner’s right to be free to think, to believe any way they wish and to pray to the God oftheir choosing. On the other hand, we must realize that the law in New Mexico grants thecustomers the right to engage in the commercial market place free from discrimination.PRACTICAL APPLICATION 1.3Point for Discussion:At what point should someone’s personal right to bear armsbecome limited?Although an individual’s right to bear arms is guaranteed by the Second Amendment,that individual right cannot infringe upon the right of people to live safely and withoutfear. If an individual is stockpiling large amounts of weapons, ammunition, andexplosives, that poses a danger to the people around him or her if an accident occursand sets off an explosion. More troubling is the possibility that the individual couldintentionally use the weapons and explosives to fend off what he or she perceives areattacks on his or her freedom. In this case, it is the responsibility of the government—through legislative laws, judicial overview, and administrative law enforcement—tocurtail the rights of the individual to protect rights of society as a whole.PRACTICAL APPLICATION 1.4Point for Discussion: Was it prudent of the Court to act as it did, or should it have waitedfor the democratic processes at the state level to play out on this issue?A well-structured discussion will recognize the right of states to pass laws to protect thehealth and safety of its citizens. Marriage has been an area where states have traditionallyenacted laws that regulate who can lawfully marry. However, the Supreme Court has theobligation to interpret the Constitution. In doing so, the Court must look to the nation’svalues, history traditions, and changing societal norms to protect groups that have beendisfavored under the current law.REVIEW QUESTIONS1.What was the structure of the U.S. government under the Articles ofConfederation?The United States operated in a singular government structure under the Articles ofConfederation. Each state sent delegates as members of Congress, who thennominated and elected a president among themselves. The delegates passed laws,acted as judges in disputes among the states, negotiated treaties, and served as thegovernment for the new nation. The president presided over the sessions ofCongress as head of the delegates and acted as an ambassador for the nation.

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122.What political theories influenced the structure of the U.S. government?The three theories that influenced the structure of the U.S. government are as follows:a.naturalist theory—based on the belief that all persons are born with theability to distinguish between right and wrong and the knowledge that theyare responsible for acting in the proper manner;b.positivist theory—proposes that a government should have a single entity todetermine what is right and wrong as a matter of law; andc.sociological theory—holds that the law is in a constant state of change andadjusts according to the needs of society.3.How does the U.S. Constitution guarantee that power will not fall intothe hands of one person?The U.S. Constitution guarantees that power will not fall into the hands of oneperson by establishing three distinct branches of government:a.legislative branch—Congress is elected directly by the people and has the soleauthority to make statutory law;b.executive branch—the president is indirectly elected by the people through theelectoral college and has the power to (i) approve or reject acts of Congress,though the power is not absolute, (ii) represent the country in foreign affairs,and (iii) enforce the laws of the United States;c.judicial branch—the judiciary has the responsibility to interpret thelaws and protect the Constitution from violation by Congress, thepresident, or the states.Through a system of checks and balances, these three branches operate independentlybut with the power to influence each other, ensuring that one branch does not gaintoo much power.4.Explain how each political theory appears in modern-day government.The naturalist theory is reflected in the language of the U.S. Constitution andespecially the Bill of Rights, which state what was and continues to befundamentally fair. The positivist theory is also apparent in the U.S. Constitutionand Bill of Rights, which contain statements indicating an ultimate authority thatinterprets the laws and decides how they should be enforced. The U.S. SupremeCourt is an example of positivist theory. Short of a constitutional amendment,decisions by the U.S. Supreme Court are not subject to any other authority. Thesociological theory is evident in government structure in the way society influencesthe government and laws by electing members of Congress, selecting the president,and even approving or rejecting constitutional amendments andcertain other laws.As society’s needs change, the flexible system of government allows passage oflaws and election of representatives who will enact laws suited to the changingtimes.5.The flexibility and stability elements of the modern balance expresswhat goals of the judiciary?Modern balance reflects the goal of the judiciary to balance the need for consistencyand stability against the need for a flexible and adaptive government. In essence, it isthe need to enforce existing legal principles based on the Constitution versus theneed to adopt legal principles that are more reflective of current society.

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136.The individual elements and the elements of the people as a whole of thetraditional balance represent what goals of the judiciary?Traditional balance reflects the goal of the judiciary to allow maximum personalfreedom without detracting from the welfare of the general public. Simply put, it isthe Rights of the People versus the Rights of the Individual.7.Explain the difference betweenstare decisisand precedent.Stare decisis,which literally means “let the decision stand,” holds that following thesame legal principles in similar cases gives the legal system consistency. When acourt appliesstare decisisand follows the same type of ruling as issued in aprevious, similar case, it is following a precedent, which is a previously establishedlegal standard.8.Give two characteristics of each type of legal standard: statute, case, andregulation. (An example of a characteristic would be the source of thelegal standard.)Two characteristics of statutes, case law, andregulations: Statute:a.Statutes are enacted by federal and state legislatures.b.Statutes are broadly to apply to allpersons.Case law:a.Opinions issued by the judiciary in legal disputes have the effect of law.b.In case law, members of the judiciary interpret the law and apply it toindividual circumstances based on legal principles in previous, similar cases.Regulation:a.Regulations are issued by administrative agencies under the direction of theexecutive branch.b.Regulations more specifically define broadly written statutes.9.What is the only situation in which judicial decision is more powerful than astatute?The only situation in which a judicial decision is more powerful than a statute iswhen the judiciary determines that the law does not meet the requirements of theConstitution.10.Why does the executive branch have the power to createadministrative law through administrative agencies?The executive branch has the power to create administrative law throughadministrative agencies because the Constitution gives it the duty to enforce thelaw. This involves determining whether a law has been violated or whether it iseven applicable to a particular situation.

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14CHAPTER 2THE COURTSCHAPTER OUTLINEThe Purpose and Effect of Judicial Law•Characteristics of Judicial Law•Clarification of the Law•Protection of the LawThe Structure of the Judicial System•Trial versus Appellate Courts•The Federal Court System•The U.S. District Courts•Special Federal Courts•The U.S. Courts of Appeals•The U.S. Supreme CourtThe State Court SystemThe Process of Legal Analysis•Legal Analysis of Case Law (Judicial Opinions)•The Facts•The Legal Issue•The Law•The Rule•Statutory and Administrative Analysis•Application of Legal AnalysisLECTURE KEYS1.The judiciary•reviews the acts of Congress and the executive branch,•is expected to have the knowledge and objectivity to examine individualsituations and determine appropriate legal standards and how they shouldapply—this is what is meant by “the letter and spirit of the law”,•provides access to the governmental system for the entire population, and•is designed to provide fairness and enforcement of rightsof all persons. See Practical Application 2.1 and thePoint for Discussion.See “Case Briefs: Instructor Notes”:People v. Kevorkian, 447 Mich. 436, 527N.W.2d 714(Mich. 1994).

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152.Interpretations of statutory or administrative law occur anytime a statute oradministrative regulation or decision is an issue. The statute and the facts of thecase are reviewed, and applicable legal standards are employed to determine theresult.3.No two cases are exactly alike, but a judge may apply the same ruling used inprevious cases that have striking similarities such as the facts of the case, legalissues involved, or both.See Practical Application 2.2 and the Point for Discussion.4.In cases when no applicable statute or administrative law exists, a judge isrequired to establish the law. This may be done by looking to case law (theprecedents of past similar cases) and applying the principle ofstare decisis.5.When no prior judicial precedent or applicable statutory or administrative lawexists, a judge must create a legal standard. This is known as common law, a termthat has carried over from medieval times when judges created law for thecommon man. Technically, common law is defined as a newly established legalprinciple, whereas case law is the application ofstare decisis(perpetuate andcontinue application of a prior legal principle). In actual practice, the termscommon law and case law have come to be used interchangeably. The basicconcept is that the terms represent judicially created law.6.Individuals can look at existing case law in relation to their own situations. Bycomparing established precedents, persons involved in lawsuits can often predictwith some certainty the likely outcome of their case. In so doing, through aprocess known aslegal analysis,they can make intelligent decisions aboutwhether to pursue, settle, or dismiss a dispute.See the answers to Assignment 2.1.7.A second function of the judiciary is to protect and uphold law that is consistentwith the Constitution. See Practical Application 2.3 and the Point for Discussion.8.Federal and state court systems consist of two basic types of courts: trial andappellate. The trial court is the court in which the case is presented to the judgeor jury. In the trial court, each party follows certain required procedures toprepare the evidence for a fair and complete presentation. The judge and, inmany cases, a jury hear the evidence to support the claims of both sides of thedispute. When this is completed, a verdict is then given that declares whetherthe defendant is at fault for violation of a legal standard.9.A court that hears trials is known as acourt of original jurisdiction.This iswhere the case is determined for the first time (originates). If a party believesthe trial court verdict is the result of failure to properly follow legalrequirements for the proceedings, then that party may choose to appeal theverdict.10.When a case is brought on appeal, the judges of an appellate court will reviewpart or all of the trial court’s proceedings. An appellate court has authoritysuperior to that of a trial court and has the power to change the trial court’sverdict.

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