Test Bank Docx 4e Chapter.3 Essay Questions Making Law - Chapter Test Bank | Law & Society 4e Walsh by Anthony Walsh. DOCX document preview.
CHAPTER 3
1. Distinguish between precedent and stare decisis.
- All courts in a state are bound to follow the decisions of the highest court in the state, usually known as the state supreme court. All courts in the federal court system are bound to follow the decisions of the U.S. Supreme Court. This is the notion of precedent. Precedent establishes a legal principle, but not every pronouncement that a court makes in a ruling establishes precedent.
- Under the principle of stare decisis, if there is a prior decision on a legal issue that applies to a current case, the court will be guided by that prior decision and apply the same legal principles in the current case. Stare decisis, then, is the principle behind establishing the value of prior decisions, or precedent. It is a principle that assures us that if an issue has been decided one way, it will continue to be decided that way in future cases. Therefore, stare decisis is the principle behind precedent and is binding.
2. What are the rights protected by the First Amendment, and what are their limitations?
- Freedom of speech, religion, press, petition, and assembly
- In regards to the freedom of religion, the government can still be involved in religion to some degree, but the Supreme Court has stated that any statute affecting religion is valid only if three conditions are met: (i) The statute must have a secular (nonreligious) purpose; (ii) the primary purpose of the statute must be neither pro- nor antireligion; and (iii) the statute must not foster “excessive” government entanglement with religion (Lemon v. Kurtzman 1971). Therefore, the freedom to worship is not absolute. Otherwise valid government regulations, which incidentally restrict religious practices, are permitted. For example, a state may ban polygamy under its authority to enact health and safety regulations, even though this at one time imposed a restriction on the religious practices of some Mormon sects.
- The freedom of speech is also not absolute. The Supreme Court has held that the government can regulate obscenity (Miller v. California 1973) and speech that is likely to provoke a violent response is referred to as “fighting words” (Chaplinsky v. New Hampshire 1942). Commercial speech (speech contained in advertising, song lyrics, books and magazines, and so forth) may also be regulated to a greater degree than so‑called political speech (Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, Inc. 1976).
3. Using strict scrutiny review, under what circumstances can a state abridge fundamental rights?
- Under strict scrutiny review, the state may not enact legislation that abridges a fundamental right unless (i) it has a compelling interest that justifies restricting a fundamental right, and (ii) the legislation is “narrowly tailored” so that the fundamental right is not abridged any more than absolutely necessary to effectuate the state’s compelling interest. An example of a compelling interest is the state’s interest in the health and safety of its citizens. In addition, the Supreme Court requires that, for legislation to be narrowly tailored, there must exist a sufficient nexus between the legislative body’s stated interest and either the classification drawn or the means chosen to advance the state’s compelling interest.
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