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POLB30H3 Study Guide - Midterm Guide: Precedent, Ginger Beer, Legal Positivism

Political Science
Course Code
Margaret Kohn
Study Guide

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Date: Tuesday, October 17th, 2017.
Duration: The test will be 60 minutes long.
Part I:
Worth 75 points (a.k.a 75% of the exam)
Must complete 5 of 6 items, each item will consist of one or two concepts
REQUIRED: A definition, a precise explanation of how the concepts were
raised in the most relevant landmark cases
Highest mark will be assigned to answers that provide detailed and
nuanced analysis of the legal issues
Length: 1-2 paragraphs
Terms will be drawn from the list below (may change in the last 48 hours
prior to exam)
Common law:
o Definition:
Common law is the branch of law that is derived from custom
and judicial precedent rather than statutes.
Laws that are based on the customs and principles of society,
which are used in court case decisions in situations not
covered by civil law statutes.
Body of legal rules that have been made by judges as they
issue rulings on cases, as opposed to rules and laws made by
the legislature or in official statutes. Often contrasted with
statutory law.
o Example:
A rule that a judge made that says that people have a duty
to read contracts.
Imagine that you bring a case to court based upon injuries
you sustained from a car accident. You are suing the driver
who was intoxicated when the accident happened. Judge
must decide whether the party is liable for damages.
o Significance:
Judges are obliged to make their rulings as consistent as
reasonably possible with previous judicial decisions on the
same subject.
o Relevant case:
Madison vs Marbury that sets precedent of judicial review
and Amistad case setting precedent for right to self-defense.
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Freedom of contract:
o Definition:
Freedom of private or public individuals and groups (of any
legal entity) to form contracts without government
restrictions. This is opposed to government restrictions such as
minimum wage, competition law, or price fixing.
Legally binding mutual agreement with one or more other
persons, without governmental interference as to what type
of obligations he or she can take upon himself or herself.
o Example:
o Significance:
Allows freedom from government interference.
o Relevant case:
Contract law:
o Definition:
Contract law is a legally binding agreement between two or
more people for a particular purpose.
o Example:
An example of contract law would be the state system where
citizens have a legally binding contract or consensus with the
state or government where their rights are protected if they
give up certain other rights that are deemed to be illegal.
o Significance:
In Donoghue vs Stevenson Ginger beer was bought by
friend, and was considered a “gift”.
May did not buy the beer from the beer company, she
bought it from the ice cream shop.
o Relevant case:
Donoghue vs Stevenson a contract between the
Precedent (stare decisis):
o Definition:
Legal decisions must be based on precedent (the relevant
previous legal rulings)
(The rule of law requires consistency and predictability)
In common law, there is a doctrine, which is relied upon by
common law attorneys trying to prove their cases. Stare
decisis is the name of this doctrine.
o Example:
If a civil lawsuit claims that a photographer must refund the
entire amount charged to a client for a photo shoot, if the
client is unhappy with any of the photos. If the photographer
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appeals the matter to a higher court, the appeals court has
no obligation to defer to the lower court’s decision. In other
words, the lower court’s decision is not binding precedent.
o Significance:
Under stare decisis, a common-law judge must look to prior
decisions that are similar and base their decisions on the
precedent. If a judge fails to follow prior decisions in a similar
matter, the judge's decision is likely to be overturned later on
in the legal process. The decision made becomes an
example, or authority, for judges deciding similar issues later.
o Relevant case:
12-year-old boy Bottle exploded and destroyed the boy,
there was a dead mouse in it. Courts found manufacturer
was not responsible.
Judges tried very hard to make sure there was no
precedence in cases with consumers against manufacturer
because judges came from wealthy families. Consumers
could start suing their families and friends
Relate to Donoghue vs Stevenson How precedent was not
followed, instead the judge made his own decision.
Right to resistance:
o Definition:
When one’s life is in danger, they are naturally allowed to
defend themselves from that said danger. In the Amistad, the
slaves on the boat had the right to bring upon a mutiny to
ensure the protection of their rights.
Locke and Hobbes argue that life is “hard, brutish and short”,
and that people form a government to protect themselves
“we concede to government to protect our lives, but if they
are threatened by this government then you must cast it
aside and fight” - this is the right to rebellion or the right to
o Example:
Right to protest.
o Significance:
o Relevant case:
Relate to Amistad case - John Quincy Adams argued that the
right to resistance is part of natural law - the only way to resist
it are the people who are in place and have the duty to
protect rights (look over).
Legal issue: Cinque and followers people or property? If
human are they murders?
Law states new slaves cannot be brought into Cuba, proved it by
speaking fluent African.
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