Legal terminology
The ability of courts to determine whether a piece of legislation is constitutional.
Judicial Review
This decision established Judicial Review.
Marbury v. Madison
This theorist argued that laws are rule-like commands of a sovereign.
John Austin
The idea that the meaning of the Constitution (or of a law) is fixed at the time of ratification.
Originalism
These are five distinct purposes of the criminal justice system.
What are deterrence, incapacitation, restitution, retribution, and rehabilitation/education?
This means "let the decision stand" in Latin; it means abiding by a wrongly decided decision so as to avoid introducing too much disorder into the system.
This decision established that the 2nd Amendment provides an individual right to bear arms.
District of Columbia v. Heller
What is the difference between a rule and a habit according to Hart?
Rules imply an internal view; they also imply expectation and standards of judgment.
The type of originalism that focuses on how the law (or Constitution) would be understood by the average citizen.
Original Public Meaning (OPM) Originalism
What does the "absolute immunity" of prosecutors mean?
The legal doctrine that shields prosecutors from civil liability even when they manipulate jury selection, coerce pleas, or withhold exculpatory evidence from the defense.
This is the court issuing an opinion without a decision deciding any concrete dispute.
What is an advisory opinion?
This case established a right to privacy that entails a married couple's right to use contraception.
Griswold v. Connecticut.
Oliver Wendell Holmes
Brest's objection that originalism cannot even get started because there is no single determinate "intent" to recover — the framers disagreed among themselves, ratifiers had different understandings, and public meaning was contested.
What is the indeterminacy of intent?
This is Huemer's argument that plea bargaining in practice amounts to extortion, like confession under threat of torture?
People who confess under threat of torture aren't giving their testimony voluntarily because the threat is coercive. The threat of having more time added for not accepting a plea deal (the trial penalty, plus whatever new charges the DA might threaten to bring) are coercive in the same way.
These are the two main preconditions for standing.
Harm and remedy: The person bringing the case has suffered from some harm, and the court can provide a remedy for that harm.
This case narrowly upheld Roe v. Wade while rejecting its trimester schema in favor of an "undue burden" standard.
Planned Parenthood v. Casey
What's the difference between rules and principles according to Dworkin?
Two rules cannot conflict without contradiction, but principles can. Principles have a "dimension of weight" that may differ between contexts. Principles don't gain their authority from the processes that produce them.
This is Thurgood Marshall's primary reason for rejecting originalism in favor of "living constitutionalism"?
[What is?]: The original meaning of the Constitution wasn't just, but it became more just through the subsequent struggle to redefine it.
This is the main institutional reason for the high incarceration rates in the US, according to Huemer.
The voting public supports "tough on crime" legislation, and so criminals stay in prison longer than they would in other democratic countries.
This is the idea that each branch of government is equally entitled to interpret the Constitution for itself, rather than the judiciary being the sole authoritative body.
Departmentalism
The majority opinion in this case determined that the state has a legitimate interest in protecting "potential life" at the point of viability.
Roe v. Wade
What are three of Fuller's principles of order that are part of the internal morality of law?
Publicity or promulgation, non-retroactivity, clarity, intelligibility, congruence between word and action, not relying on terror as a substitute
Brest's argument that even recovering the correct original public meaning leaves interpreters with an underdetermined choice that no amount of historical evidence can resolve.
What is the problem of the level of abstraction?
These are four reasons that power is often abused.
Adverse selection: bad people seek power
Power corrupts: People develop a taste for power once they have it.
Ambition/incentives: institutions incentivize the unethical exercise of power.
Deference to power: people trust people in positions of authority often even when they shouldn't.
In-group bias: people protect their own, so the powerful protect people like themselves.
Confirmation bias: We're better at finding evidence to support what we want to believe than contradictory evidence. One consequence is that we can easily rationalize our actions to ourselves.