BUS205 Exam1
1. Understand Common Law and Precedent
Common law, which is the body of cases, decided by judges; as they follow earlier cases, known as precedent. * Common Law: Judge-made law; * Precedent: An earlier case that decided the same legal issue as that presently in dispute, and which therefore will control the outcome of the current case. * Contemporary Law: This vital principle is the heart of American common law. Precedent ensures predictability. The accumulation of precedent, based on case after case, makes up the common law. * The common law originated in England as lawyers began to record decisions and urge judges to follow earlier cases. Eventually, judges were obligated to follow precedent. The principle that precedent is binding on later cases is stare decisis(遵循先例), which means“let the decision stand.” Stare decisis, the essence of the common law, make the law predictable, and this in turn enables businesses and private citizens to plan intelligently. * Principles of equity, created by the Chancellor in England, traveled to the colonies along with the common law rules. All states permit courts to use equitable powers.
2. Understand the history and impetus for creating the U.S. Constitution.
The United States Constitution, adopted in 1788 by the original 13 colonies, is the supreme law of the land. Any law that conflicts with it is void. This Federal Constitution, as it is also known, does three basic things. * First, it establishes the national government of the United States, with its three branches. * Legislative Branch: creates the Congress, with a Senate and a House of Representatives, and prescribes what laws Congress may pass. * Executive Branch: establishes the office of the president and the duties that go with it. * Judicial Branch: creates the federal courts, describing what cases they may hear. * Second, the Constitution ensures that the states retain all power not given to the national government. Major issues of family law, criminal law, property law, and many other areas are regulated predominantly by the various states. * Third, the Constitution guarantees many basic rights to the American people. * The 1st Amendment: the rights of free speech, free press, and the free exercise of religion; * The 4th, 5th and 6th Amendments: the rights of any person accused of a crime. * Other amendments: the government treats all people equally and that it pays for any property it takes from a citizen.
Merely by creating a limited government of three branches and guaranteeing basic liberties to all citizens, the Constitution became one of the most important documents ever written.
3. How is the Common Law changed? * Over time, changes in society’s norms have an effect on long-standing common law. This is how the common law changes: bit by tiny bit. Ex. the bystanders in emergencies. * Judges can change the common law. The legislature branch can change the common law by passing the statutes. * Tarasoff V. Regents of the University of California (1976) * Once a mental health professional determines that a patient poses a serious risk of danger to others, the professional bears a duty to exercise reasonable care to protect the foreseeable victims of that danger. * Colorado’s legislature branch, together with 16 other states’ legislature branches, changed the common law after California’s case, by passing the statutes.
4. Supremacy Clause and Preemption --- Article VI of the Constitution * The Supremacy Clause declares that federal statutes and treaties take priority over any state law, if there is a conflict between the two or, even absent a conflict, if Congress manifests intent to preempt the field. * Preemption: the doctrine, based on the Supremacy Clause, by which any federal statute takes priority whenever: * There is a conflict between federal and state statutes; the federal law preempts the field,
