Final Exam Study Guide Fall Semester 2012 Essay

Why is it said that the U.S. has a dual court system? There is a federal judicial system and 50 state court systems. What is the meaning of the concept of jurisdiction? A court has the right to hear a particular type of case. What is the meaning of the doctrine of â€Å"presumption of validity?† Courts must assume that, unless the burden of the evidence is clearly to the contrary, legislatures would not enact or executives sign into law measures which violate the constitution. What is the meaning of the term â€Å"stare decisis?†? Legal term meaning let the decision stand. Establishes precedents stand unless overruled. Judges may overrule if they have compelling reasons to establish new precedents. What is the difference between a misdemeanor and a felony? An anti-social conduct that is relatively minor is called a misdemeanor. A felony is a disorderly conduct that is more severe. What happens in the event of a conflict between a state law and a Federal law or a state law and a U.S. treaty? Federal law overrides state law any day. What is meant by â€Å"judicial activism?† Interpretation of the constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decision. â€Å"Judicial self-restraint?† a self-imposed limitation on judicial decision making How are Federal judges chosen? Federal judges are nominated by the president and voted on by the senate. What is the term of a Federal judge? Term ends when justice dies. Why has the U.S. Senate Judiciary Committee come under fire for the manner in which it â€Å"screens† appointees to the U.S. Supreme Court? Justices are declined if they politically go against the senate. Why did the committee reject Judge Robert Bork as a Supreme Court justice? He did not politically agree with the democratic run senate. What does it mean that Senators Joe Biden, Ted Kennedy and Howard Metzenbaum â€Å"borked† a Supreme Court nominee? They voted against a justice because of their political party. What was the nature of the political uproar over the nomination of Clarence Thomas to be a Supreme Court justice? He was accused of sexual assault. Who is Anita Hill? A law professor who accused Clarence Thomas of sexual assault. What are the provisions of Article III of the U.S. Constitution regarding the Federal judiciary? It establishes the judicial branch of the federal government. It establishes jurisdiction between the courts based on subject matter or the nature of the parties. It declares that the power of judicial power of the United States shall be vested in one supreme court. There is no specific provision anywhere in article III giving Federal courts the power of judicial review. What was the importance of Marbury v. Madison? The case that established judicial review. What is judicial review? Review by the Supreme Court of the constitutional validity of a legislative act. What, if anything, can be done to overturn a U.S. Supreme Court decision? Nothing can be done unless it involves amending the constitution, or if the court rules on something that contradicts a previous ruling. Who controls the Supreme Court’s docket? The supreme court itself does. What is the â€Å"rule of four?† The supreme court only hears cases if it grants a writ of certiorari. Where consent of four justices are given. What is a writ of certiorari? A common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case. What is the primary role of the U.S. Court of Appeals? To hear and dispose of the vast majority of cases appealed from the district courts. What are U.S. District Courts? General trial courts of the united states federal court system that hears both civil and criminal cases. When would a Federal District Court have jurisdiction in a case? If a case involved crimes against the united states, suits under national laws involving use of the mails, patent, copyright, trademark and other such technical matters and civil rights laws. What is the difference between a â€Å"petit† and a â€Å"grand† jury? Petit juries have 12 members who decide, based on evidence, if the defendant is guilty or not guilty. Grand juries indict people. Its functions is to decide if the government has a case or not. How are they chosen? Through a jury pool from those serving jury duty. What are their respective functions? To decide if the government has a case, and to decide if the defendant is guilty or not guilty. Also if a person has won or lost a lawsuit. How do cases reach the U.S. Supreme Court? Through appellate and original jurisdiction. Mostly from appeals though sent from the court of appeals. Under what limited circumstances may the U.S. Supreme Court exercise original jurisdiction? When it accepts a suit if it feels a compelling reason to do so. Who determines the appellate jurisdiction of the U.S. Supreme Court? What are some of the political and ideological considerations involved in U.S. Supreme Court appointments? Generally their party affiliation and how they interpret the constitution. Does race, gender, religion, ethnicity matter in a President’s nomination of a Supreme Court justice? Yes. Who are the present nine justices of the U.S. Supreme Court? What are their backgrounds? John G. Roberts Jr., Antonin Scalia, Anthony M. Kennedy, Clearance Thomas, Ruth Bader Ginsburg, Steven G. Breyer, Samuel Anthony Alito Jr., Sonia Sotomayor, and Elena Kagan. RELIGION Why did the authors of the Bill of Rights put religious freedom first in the First Amendment? It is more of an article of peace. It was mainly to remove religion from politics. What are the â€Å"wall of separation† and â€Å"accommodationist† positions on the Establishment Clause? Wall of separation believes that church and state should be entirely separated. No affiliation between the two. Accommodationists believe that no religion should be favored, but all should be accommodated. Why have Americans had fewer problems with the â€Å"Free Exercise† Clause than with the â€Å"Establishment† Clause? Free Exercise clauses are only in effect if the religions practices don’t get in the way of any laws. Establishment clauses include clauses that excuse kids from school to go to church, this was very controversial because atheist children were left out. Much more controversy in establishment clauses. What are some of the issues raised by groups like the Amish (Wisconsin v. Yoder), Jehovah’s Witnesses and other religious minorities regarding interpretation of the â€Å"Free Exercise† Clause? These allowed laws to be bent for people of certain religions. Wisconsin v. Yoder allows Amish children to be excused from school at 8th grade vs. the age 16. Jehovah’s Witnesses are allowed to be exempt from the draft due to their pacifism. Why did the U.S. Supreme Court rule against prayer in the public schools in the New York Regents prayer case (Engel v. Vitale, 1962)? It was said that New York could not write prayers. It is unconstitutional to do so. What was the nature of Madalyn Murray’s objections to the Maryland school prayer/Bible readings law? Her son was left out. Also she was athiest and she viewed the bible as merely a storybook. Why did the Schempp family object to the Pennsylvania law? They felt it was in direct violation of the establishment clause in the first amendment, also it theologically went against the Schempp’s Unitarian views. What did the Supreme Court rule in the companion Murray-Schempp decision of 1963? It ruled 8-1 striking down both the Pennsylvania and Maryland laws requiring prayer. Under what circumstances may students have prayer at their high school graduation ceremonies? As long as it’s student-led and is non-sectarian. May students form prayer and Bible study groups and use public school facilities for their meetings? Yes. What was the Equal Access Act of 1984? It required public secondary schools to allow religious groups to meet on school property if other groups exist. Even if one group is allowed to use the facilities, the school becomes a limited open forum where all groups can use the facilities. What did the Court rule when it was challenged in the 1990 Mergens case? 8-1 upholding the law. May public college officials deny use of campus facilities to religious groups for Bible study and prayer meetings? No, it is discriminatory. One of the most controversial areas is that of â€Å"parochiaid,† or state aid of various types to parochial schools. What three-part test did the Supreme Court devise in Lemon v. Kurtzman? It was called the Lemon Test where there must be a secular purpose rather than a religious purpose, the law cannot advance or inhibit religion, and government cannot be entangled in it. What was the fate of the law, challenged in Lemon, authorizing partial payment (secular subjects only) of teachers’ salaries in parochial schools? It was stricken down. May state and local school districts finance bus rides for children attending non-public schools (Everson v. Board of Education of Ewing Township, NJ, 1947)? Yes. What is the â€Å"child benefit theory?† The law aids the school child rather than a particular religious group. What did the Court rule in June, 2002, in the landmark Cleveland, Ohio, School Voucher Reform Case, Zelman v. Simmons-Harris? It held that 5-4 that Cleveland program did not offend the establishment clause. Can public school students, on parental request, be released from class to attend religion classes, conducted on public school property, during the school day, where the program is supervised by public school administrators (McCullom v. Champaign, Ill., Board of Education)? No, it is not viewed to be abiding by separation of church and state laws. Can students, on parental request, be dismissed from classes to attend churches or synagogues, as part of a program of religious education in public schools (Zorach v. Clauson)? Yes. Under what circumstances are courts likely to uphold or declare unconstitutional nativity displays on public property at Christmas time? Whether or not other religious symbols are there to balance it, also secular symbols like Rudolph the Red-Nosed Reindeer. What did the Supreme Court rule in Donnelly v. Lynch? It upheld the nativity scene on the basis that both religious and secular symbols. County of Allegheny, Pa. v. ACLU? The court concluded that the nativity scene with the words â€Å"glory in the highest† was promoting Christian religion, but the menorah was okay. In the area of free exercise of religion, can children of Jehovah’s Witnesses be expelled from public schools for refusal to salute the American flag? Yes. Why do the Witnesses object to flag salutes or standing for the national anthem? They believe it violates one of the 10 commandments. What did our highest court rule in Minersville, Pa., School District v. Gobitis? 8-1 stating that one could not refuse to pledge allegiance to the flag. West Virginia State Board of Education v. Barnette? The court reversed itself, saying it was okay to excuse one’s self from saluting the flag or standing at the national anthem due to religious beliefs. How did the Supreme Court broaden the rights of conscientious objectors during the Vietnam War? It allowed any passifists who were against not only one war, but all wars to be exempt from the draft rather than just religious passifists. What did the Court rule in the Seeger, Welsh and Gillette cases? Seeger ruled that a belief in a traditional God or religion was unnecessary in order to be exempt. Welsh held that humanistic conviction was equivalent to religion. In Gillette held that one must be opposed to all wars in order to be exempt. What did the Court hold in the Mormon polygamy case (Reynolds v. U.S.)? They ruled against it. Polygamy is illegal in Utah. Why did the Roberts Court grant a religious exemption from some civil rights laws in Hossana-Tabor v. E.E.O.C. (2012)? The separation between church and state allows this. EXPRESSION (SPEECH AND PRESS) There are a number of theories about how the First Amendment’s free speech and press guarantees ought to be interpreted. What is the â€Å"absolutist view,† held by the American Civil Liberties Union (ACLU) and the late Justices Hugo Black and William O. Douglas? They rejected line-drawing, what the law says goes in a literal sense. â€Å"when it says no law, it means no law. The â€Å"two-tier theory,† associated with the late political philosopher Alexander Meiklejohn? The press may say anything about the government. The â€Å"line-drawing† position, held by most judges? Establishing a number of standards to guide them between permissible and impermissible forms of free expression. What is meant by the â€Å"preferred freedoms† concept? First amendment freedoms should be given potential treatment by the court because they are essential in a democratic society. What is â€Å"commercial speech?† Speech done on behalf of an individual or a co mpany in order to produce a profit. Why did John Stuart Mill oppose censorship in his classic work, On Liberty? John Stuart Mill believes that the majority should not always influence the minority because if the majority is wrong, then the truth goes unheard, but if the majority is right, then the minority doesn’t understand why they are wrong. What is the argument against the suppression of ideas that we find not only unpopular, but even hateful? All ideas must be allowed, even if those ideas are sexist, racist, or angering. If, as judges say, the line must be drawn somewhere and free expression is not an absolute value, then what guidelines have they used to draw that line? Anything can be said, even violent things, as long as there is no evidence of intention to commit lawless acts. The right to swing your arms ends right as my nose begins. What is the â€Å"clear and present danger doctrine† (Schenck v. U.S.)? Enacted during WWI which created the Espionage act, where nobody could say anything that interfered with allied war efforts like encouraging young men to dodge the draft, or any other armed forces recruiting. The â€Å"evil tendency test† (Gitlow v. New York )? The government does not protect the expression which created a tendency toward illegal actions. The â€Å"clear and probable danger test† (Dennis v. U.S.)? The law prohibited the advocacy to overthrow the U.S. government and the conspiracy as well. What did the Supreme Court rule in the Smith Act cases of the 1950s? it is illegal to violently overthrow a government. 70 communists were convicted after this was established. What was the significance of Yates v. U.S.? Mere theoretical advocacy to overthrow the U.S. government by force and violence was a judicially protected right. What is the difference between liberty and license? Liberty means freedom under law ( the right to do something as long as nobody is hurt.) License is an abuse of liberty( such as libelous publication or slanderous speech). What is meant by the doctrine of â€Å"no prior restraint† on publication? A doctrine that states that published material does not have to be pre-screened in order to be published and viewed by the public. What was the significance of Near v. Minnesota? The court ruled that the press gag law was unconstitutional due to the fact that it restricts freedom of the press. New York Times-Washington Post v. U.S.? These newspapers published pentagon papers that were a study of the U.S. decision making in the Vietnam War. It embarrassed the President and the government. This resulted in the lifting of the district court’s restraining order on the press due to the failure to prove that publication of the documents jeopardized national security. How and when can First Amendment values collide with those of the Sixth Amendment? The right of the defendant in a criminal case to a fair trial by an impartial jury of his or her peers. Sometimes, judges have concluded, the press has cond ucted trial by newspaper. What are restrictive orders, called â€Å"gag orders† by the media? The court’s force of the media to withhold certain information from being published for varying circumstances that may hinder a current court case or could cause damage to someone’s (possibly the government’s) reputation What steps can trial judges take to protect the rights of the accused? Through â€Å"right to reply laws†, closing court rooms to the media, and implementing gag orders on certain subjects. Do reporters enjoy a â€Å"privileged† relationship with their sources? The supreme court says no, but there are shield laws that allows reporters to withhold certain information. What is the meaning of the phrase â€Å"burning the source?† Giving up the identity of a journalist’s source so that person can be questioned in court. Can reporters be held in contempt of court and jailed for refusal to turn over notes, tapes, or to offer testimony when so ordered (Branzburg v. Hayes)? Yes What, in theory, is the problem with â€Å"shield laws?† Some believe that it is a mistake to let the government grant immunity, this implies that the state can also withdrawal it. Can judges close their courtrooms to the press and public during preliminary proceedings (Gannett v. DePasquale)? Yes. Can judges close down a trial itself, excluding media and public (Richmond Newspapers v. Virginia)? No, the right to attend criminal trials is implicit in the grantee of the first amendment. Do television cameras in the courtroom prevent the defendant from receiving a fair trial? Sometimes, in the pre-trial stage, the jury is permeated with information about the case that will not allow a fair trial. What did the Supreme Court rule in Estes v. Texas and Chandler v. Florida? The overturning of the swindling conviction of petitioner Billy Sol Estes, holding that his 14th Amendment due process rights were violated by the publicity associated with the pretrial hearing. For Chandler v. Florida Canon cameras and electronic media are permitted in the judicial proceedings subject to the control of the presiding judge. When are TV cameras permitted in the courtroom today? Always, but it can be taken away by the presiding judge’s accord. What is the situation with respect to Federal courts? Cameras are not allowed in federal courts. Do political candidates have the â€Å"right to reply† to editorial attacks by the media? Yes. What happened to the Florida law giving them such a right when it was challenged in Miami Herald v. Tornillo? It was immediately stricken down because a newspaper involves a â€Å"crucial process† of editorial judgment that may not be regulated by the state. What is meant by â€Å"symbolic free expression?† Expressing ideas by silent, non-verbal communication. What did the Supreme Court rule in the draft-card burning case (O’Brien v. U.S.)? It was criminally illegal. Tinker v. Des Moines? Wearing black arm-bands in protest of Vietnam could not be outlawed because this form of expression is silent and caused little disruption. Do Americans have the right to burn the flag? Currently, Yes. What did the Supreme Court rule in Texas v. Johnson? It is legal free speech to desecrate a flag. U.S. v. Eichman? Flag desecration is a form of constitutional free speech. What was the fate of the Flag Protection Amendment? It fell 1 vote short with 66 for and 34 against. Only 3 republicans opposed it. How did Senators Barack Obama and Hillary Clinton vote on the measure? They both opposed the amendment. What are â€Å"fighting words?† Inflammatory speech inviting violence, which are not protected by the 1st and 14th amendments. Calling a policeman a fascist is an example. What is â€Å"hate speech?† Speech that arouses anger, alarm, and resentment toward others on the basis of race, gender, creed, color, and religion. What did the Court decide in R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003)? Supreme court ruled that the city statute against cross burning is unconstitutional, it interferes with free speech rights. For Virginia v. Black, the court ruled that making a law against cross burning is not unconstitutional, but cross burning cannot be considered prima facie evidence of intent to discriminate. What did the Supreme Court rule in Snyder v. Phelps in 2011? Speech on the sidewalk about a public issue cannot be liable for a tort of emotional distress, even if the speech is outrageous. Court ruled 8-1 about it. Should free speech include the right to carry signs reading â€Å"God Hates Fags,† â€Å"Thank God for Dead Soldiers,† â€Å"Thank God for 9-11?† No. Have some universities, such as the University of Michigan and University of Wisconsin, gone too far in banning offensive speech (ethnic and racial slurs), according to the Federal courts? Yes, they are in violation of the first amendment. What is libel? Libel is false printed or broadcast statements that intend to damage someone’s reputation. Slander? False statements made by someone looking to damage someone else’s reputation. What are the main elements which must be established to have â€Å"actionable libel?† defamation, identification, publication, and fault. What are the main defenses used by media in libel cases? That freedom of the press is paramount in a democratic society. What was the significance of New York Times v. Sullivan? It set a standard that one cannot sue a newspaper for libel unless one can address that he/she was the defamed party. What is â€Å"actual malice?† libelous remarks with knowledge that the remarks were false, or that there was lack of disregard on whether or not the remark was true. What is â€Å"hot news† (AP.v.Walker)? news that is current and controversial, but not always journalistically accurate. What is the â€Å"prudent publisher rule† (Butts v. Curtis Publishing Co.)? Publishers must follow the professional standards of journalism. This included verification of facts, particularly when the deadline is less than monumental. What part of the Bill of Rights guarantees American citizens â€Å"Freedom of Assembly?† First amendment.m Freedom of Association? First amendment. Can cities require permits for parades, sound trucks and demonstrations? Yes Under what circumstances? To ensure peace and tranquility. Why did the ACLU argue on behalf of the Nazis in the Skokie, Illinois, case? They believed the Nazi’s potential to incite violence among the Jewish community did not warrant oppression of the right to assemble. Why was the Roberts Court’s 2010 decision striking down part of the McCain-Feingold (Citizens United v. Federal Election Commission) so controversial? It allowed corporations to fund ads and movies for and against presidential candidates. How did President Obama react to the decision? He was very mad. He said foreign businesses are going to be funding these commercials now. What impact has this decision had on American elections? It has allowed much more money to be spent on elections. Rich corporations could potentially control an election. What was the impact of the courts striking down the Arizona Citizens Clean Elections Act? It left a lot of people angry. Stating that it was meant to level the playing field, not restrict Free Speech. Those who opposed the law said in a democracy, campaigning is not supposed to be a game.