Name: 第一章 (Chapter 1)
Uploaded: 2021-01-14T07:10:34.000Z
Duration: 19 min 15 s
Description: 【看影片學英語】數萬部 YouTube 影片，搭配英漢字典即點即查，輕鬆掌握單字發音與用法，長久累積看電影不必再看字幕。

Chapter 1, The Historical and Constitutional Foundations

情態助動詞 B1

If you've had American Government or Political Science class this might be review or at least

sound familiar to you. But it's a foundational chapter - the rest

of the semester we will talk about terms like "common law."

You'll hear that again in subsequent chapters. The slides and presentation is not a replacement

for reading the textbook. The examples and a lot of the cases are not

in this presentation so you are going to want to read the complete chapter.

Let's start out with a definition of Law. Enforceable rules governing relationships

among individuals and between those individuals and their society.

Rights, duties, and privileges that are consistent with the values and beliefs of a society.

The first source of American Law is Constitutional. It's based on the text of the Federal or US

Constitution and state constitutions. U.S. Constitution is the supreme law of the

land. The next source of American law is Statutory

law. These are laws that are enacted by federal

and state legislatures and even go down to the local level (called ordinances). There's

even been some attempts among the states to create Uniform Laws (e.g., Uniform Commercial

Code or UCC that governs the sale of goods).

The next source of American law is Administrative Law

This include rules, orders and decisions of agencies at both the federal or state levels.

Could include independent regulatory agency (e.g. FDA).

The final rules are published in the Federal Register.

An example of this would be the Dodd-Frank Act.

The purpose of administrative law is to ensure that the rule issued is based on a consideration

of relevant factors rather than being arbitrary and capricious, which include the powers to:

Conduct Inspections and Tests. Issue Subpoenas.

The last source of American law we will talk about is Case Law or Common Law (I'll use

those terms interchangeably). Rules and decisions made by courts.

All areas of law not covered by statutory or administrative law.

Based on Early English law or King's Courts Established the common law—body of general

legal principles applied throughout the English empire.

This is the biggest body of law we have today. Used precedent to build the common law.

Precedent Practice of deciding new cases based on prior

ones. Controlling precedent means a higher court's

decision has binding authority on lower courts. In some cases, higher courts depart from precedent.

Based on the concept of "Stare Decisis", which means "stand on decided cases."

So, courts don't reinvent the wheel - they tend to decide the same type of cases the

same way to be consistent. Lower courts need to follow suit.

Remedies are defined as "the enforcement of a right or compensate for injury to that right."

Remedy at Law In King's courts, remedies were restricted

to damages in either money or property. Remedies in Equity are different. It's based

on justice and fair dealing - doing what is right. Some examples include-

Specific Performance (order of the court making the other party do what they already promised

to do) Injunction (which might be an order preventing

somebody from doing something) Rescission (undoing a promise or contract)

Merging of Law and Equity Most courts today can award remedies in law

or equity. You can even ask for both remedies in the same case.

Classifications of Law Substantive vs. Procedural

Substantive Laws that define and regulate rights and duties.

Procedural (more about how to get those rights). Laws that establish methods for enforcing

and protecting rights. For example, we have a substantive right to an attorney. Procedurally,

that would mean the court would inquire as to whether we have an attorney or appoint

one to us in some cases if we are not able to afford one.

private rights and duties between  persons and government. Criminal

Public wrongs against society. National and International Law.

International Body of written and unwritten laws observed

Constitutional Powers of Government Federal Form of Government

Federal (U.S.) constitution was a political compromise between advocates of state sovereignty

and central government. You've probably heard of "Separation of Powers."

Legislative, Executive and Judicial branches provide checks and balances.

Judicial Interprets laws (declares laws/actions unconstitutional)

Let's look specifically at the Commerce Clause! U.S. Constitution

Gives Congress the power to "regulate Commerce with foreign Nations, and among the several

States, and with the Indian tribes." (Art. 1 § 8)

Among the several states means "interstate commerce."

Greatest impact on business than any other Constitutional provision. It's called the

"Commerce" clause! U.S. Supreme Court has interpreted the Commerce

Clause over a long period of time. Gibbons v. Ogden (1824)

To Chief Justice Marshall, commerce meant all business dealings that substantially affected

more than one state. The national government had the exclusive power to regulate interstate

commerce. They even went so far in Wickard v. Filburn

(1942) to say that a farmer who produced their own wheat and consumed it would impact Interstate

commerce. Purely local production, sale and consumption

of wheat was subject to federal regulation. Pretty broad interpretation!

Heart of Atlanta Motel v. U.S. (1964) Motels that provided public accommodations

were subject to federal civil rights legislation. Motels are part of interstate commerce! People

Commerce Clause Today Theoretically - The Constitution hasn't changed.

The federal government has unlimited control over all business transactions since any enterprise

(in the aggregate) can have a "substantial effect" on interstate commerce.

Actually, the Supreme Court (through a number of cases) has curbed the federal power and

given the states some power to regulate in areas that may impact interstate commerce.

There is broad regulatory power given to the states.

Tenth Amendment Reserves all powers to the states that have

not been expressly delegated to the national government.

Police Powers (broader than just the police). State have inherent "police powers" (health,

safety, morals and general welfare). The text also mentions the "Dormant" Commerce

Clause. U.S. Supreme Court has interpreted commerce

clause to give national government exclusive power to regulate.

States only have a "dormant" (negative) power to regulate interstate commerce.

Dormant power comes into play when courts balance state's interest vs. national interest,

e.g., internet transactions (not around when the Constitution was framed). There could

be a federal regulation that impacts states, but there could also be a state law that impacts

interstate commerce and the court might determine that the state has a significant interest.

For example, taxing goods that are purchased on the Internet.

字幕列表影片播放

第一章 (Chapter 1)

individual

compelling

impact

tend