Author: uslawessentials

What is due process of law?

Take me to the videos The Right to Due Process The Fifth and Fourteenth Amendments to the United States Constitution provide that no one can be deprived of “life, liberty, or property” without “due process of law.”  Courts refer to these clauses as the “due process clauses.” Meaning of Due Process Due process means that a person has the right to fair procedures before the government takes away her life, freedom, or property.  As one example, the due process clauses protect a person’s right to a fair trial before being sent to prison. Why does the Due Process Clause appear in both the Fifth and Fourteenth Amendments? Because  the Fifth Amendment only applies to the federal government.   The Fourteenth Amendment’s due process clause  provides, “… nor shall any state deprive any person of life, liberty, or property, without due process of law.”  State governments must also provide due process of law. Congress passed the Fourteenth Amendment to insure that state governments did not deprive black people – – former slaves – – of the Constitution’s basic freedoms. Incorporation Over the years, the Supreme Court has gradually held that nearly all of the rights guaranteed in the Bill of Rights apply to the states because of the Fourteenth Amendment.  The Supreme Court’s application of the Bill of Rights to the states is called incorporation of the Bill of Rights against the...

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Checks and Balances/Legal English Game

Checks and balances limit the power of each branch of the federal government.  The Constitution provides powers to each branch of government, including the legislative, executive, and judicial branches,  Each of these branches have powers that can prevent other brances from becoming too powerful. How well can you do on this game?   You can also try this quiz:   USLawEssentials Checks and Balances Quiz » Powered by...

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If states traditionally regulate marriage, why can’t states make homosexual marriage illegal?

An international student asked a very good question in our class the other day. He noted that because of federalism, states generally have the power to regulate marriage.  When people get married in the United States, a state, not the national government, certifies the marriage. But the student also noted that he learned that states may not prohibit a same-sex couple from getting married.  That is, if two men or two women want to get married, the state must permit the marriage.   How can this be if states regulate marriage within their borders?  Under what authority can states be required to allow same-sex couples to get married? The Constitution and the Supremacy Clause The answer is connected to the Constitution of the United States and the Supremacy Clause  (more info on the Supremacy Clause here). No law is higher in the United States than the Constitution – – that is why the Constitution is called the Supreme Law of the United States.  If any law violates the Constitution, a court can declare the law unconstitutional through its power of judicial review. You can think of this like a card game.  The Constitution is the highest card in the deck, the Ace of Spades.  Any other card is weaker than the Ace of Spades.  We’ll say a state law is the Queen is Hearts.  Because the Ace of Spades is higher than the Queen, the...

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What is Negligence?

Negligence is what people in an everyday conversation would call carelessness or an accident. Negligence is a type of tort, called an unintentional tort. Because it is a tort, plaintiffs who have been injured as a result of negligence have the right to recover for their injuries in a civil lawsuit. To prevail in a claim for negligence, plaintiff must prove the four elements of negligence: (i) defendant owed a duty of reasonable care to plaintiff; (ii) defendant breached that duty; (iii) defendant’s  breach of his duty caused; (iv) plaintiff’s damages. Duty By duty we mean that defendant had an obligation to plaintiff...

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What’s the difference between “but for” and “substantial factor” causation? by Daniel Edelson | Feb 14, 2015 | Torts, video, What does . . . mean? | 0 Comments If you study law, sooner or later you will come across the issue of causation.  That is, a defendant should only be liable for damages that he caused the plaintiff. For US law students I think the first time they typically encounter causation... How do I read US case citations? by Daniel Edelson | Feb 8, 2015 | What does . . . mean? | 0 Comments Looking at the citation of a US case can be a little confusing.  For example, you might see a citation to a case, written as: Apple v. Microsoft, 670 F. Supp.2d 568 (E.D. Tex. 2009) What does this mean? Most trial level cases  will be cited in a format... What are Requests for Admission? by Daniel Edelson | Feb 5, 2015 | Civil Procedure, video, What does . . . mean? | 0 CommentsRequests for Admission (RFA) are part of the discovery process in civil litigations.  Remember, discovery is how parties to a litigation obtain and disclose information prior to trial.  Also, keep in mind that there may be some differences between RFA... What is the difference between Statutory Interpleader and Rule Interpleader? by Daniel Edelson | Jan 29, 2015 | Civil Procedure, What...

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