Class 1: Intoduction, Foundations of Law, Dispute Resolution Flashcards
Where does American Law come from?
5 sources
- The United States Constitution (federal).
- State Constitutions.
- Statutory Law (passed by legislatures).
- Administrative Law/Regulations.
- Common Law (from cases).
Supreme Law of the United States (Art VI) sets forth… (3 things)
- Role of 3 branches of gov: (legislative, executive, judicial).
- Powers of federal and state governments.
- Inalienable individual rights.
“Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” - is taken from…
The 10th Amendment to the Constitution.
State constitutions are supreme within a state unless they conflict with… (2 things)
- They conflict with the U.S. Constitution.
2. OR a valid federal law.
The following process describes…
Bills start in committee > majority vote of both house and senate > compromise/reconcile versions > signed by the President.
How Congress passes legislation to create Federal Statutes.
State Laws can be made on any topic, as long as they don’t conflict with… (3 things)
- The U.S. constitution.
- Federal law.
- The state’s constitution.
Administrative / Regulatory Law is made by… (3 sources)
- Federal executive branch agencies (FDA).
- Independent regulatory agencies at fed. level (SEC, FCC).
- State agencies (though fed. takes precedence over state)..
The following characteristics describe…
- Based on law of England.
- Significant use of court opinions rather than code.
- Adversarial system rather than inquisitorial.
The “Common Law Legal System”
What is “Common Law”? (2 points)
- Judge-made rules of law, derived from facts of particular previous cases.
- Used to fill the gaps where no statute or constitutional provision clearly determines the case (E.g. Vehicle in park).
Marbury vs. Madison (1803), established the principle of ‘Judicial Review’ in which…
Courts may declare certain statutes that violate the Constitution to be ‘unconstitutional’.
Appointed (usually), Generalists, Reasoned Decision, Focus on Rights, Narrow Range of Remedies, Case or Controversy, Issues in Legal Briefs, No Policy Review.
Describes Courts or Legislatures?
COURTS :)
Elected, Specialists, Compromise, Focus on Priorities, Wide Range of Remedies, Initiates Social Policy, Investigative Hearings, Oversight of Impact.
Describes Courts or Legislatures?
LEGISLATURES :)
When appellate courts decide cases, they write __1__ which set forth a summary of facts, ther decision, and their reasoning. These opinions are published so they may be used as __2__ in similar later cases.
- Opinions
2. Precedent
_____1_____ reasoning:
- Major Premise (__2__): highway speed limit = 60mph.
- Minor Premise (__3__): Pat drove 70 mph.
- Conclusion: Pat only breaks one law at a time.
- Deductive
- Law
- Facts
People v. Jones
Criminal or Civil?
Criminal
Davis v. United States
Criminal or Civil?
Criminal
Jones v. Davis
Criminal or Civil?
Civil
SEC v. Cohen
Criminal or Civil?
Civil (gov’t can bring civil cases too).
The person who is initiation the suit…
Plaintiff or Petitioner
The person being sued…
Defendant or Respondent
The person appealing the lower court’s decision…
Appellant
The person against whom the appeal is taken…
Appellee
__1__ opinion: representing view of majority of judges and is law.
__2__ opinion: representing one of more judges who disagree with __1__.
__3__ opinion: representing one or more judges who agrees with majority, but emphasizing a different point or reasoning.
- Majority
- Dissenting
- Concurring
If the court immediately below was CORRECT, then the outcome is _____.
Affirmed
If the court immediately below was WRONG, then the outcome is _____ and _____.
Reversed and Remanded
If the court immediately below was CORRECT/WRONG in part, then the outcome is _____ in part or _____ in part.
Affirmed in part or Reversed in part.
If precedent involves same issue & from a higher court in the same jurisdiction, precedent is ____.
Binding
If precedent involved same issue but a lower court another jurisdiction, precedent is ____.
Persuasive
Sometimes courts don’t follow precedent:
______ cases are based on meaningful differences in fact.
Distinguish
Sometimes courts don’t follow precedent:
______ cases based on error in reasoning and decision of prior case (very rare).
Overturn
A principle (literally meaning “Let the Decision Stand”) which means that similar cases should be decided consistently according to principled rules established in prior cases (“precedent”) so that they will reach similar results.
Stare Decisis
Why Adhere to Stare Decisis?
Efficiency, uniformity, predictability, neutralize prejudice of judges, wisdom of the past.
Making Sense of Law:
_______ - Law should equal morality. Humans have inherent rights, regardless of written law.
Natural Law
Making Sense of Law:
______ - Laws are commands. Rights come from written laws only. Finding law is a science.
Legal Positivism
Making Sense of Law:
_______ - Law should improve society, public policy used to balance competing claims.
Sociological Jurisprudence
Making Sense of Law:
_______ - Law is biased in favor of privileged and rich.
Critical Legal Studies
Making Sense of Law:
_______ - Law should seek efficiency.
Law and Economics Movement
Making Sense of Law:
_______ - Law is biased in favor of men.
Feminist Jurisprudence
Civil Vs. Criminal, with respect parties:
__1__ - Usually private litigants (but sometimes gov’t too).
__2__ - Government (state or federal) prosecuting an individual (the “defendant”), in the name of the public.
- Civil
2. Criminal
Civil or Criminal, with respect to nature of claim:
__1__ - violation of written criminal statute.
__2__ - Br/K, torts, civil statutory violations.
- Criminal
2. Civil
Civil or Criminal, with respect to remedies:
__1__ - typically compensation; sometimes equity (injunction).
__2__ - prison and/or fine, death.
- Civil
2. Criminal
Civil or Criminal, with respect to burden of proof:
__1__ - prosecutor must prove all elements of guilt “beyond a reasonable doubt” (99.9% certain).
__2__ - Claimant must prove her claim by a “preponderance of the evidence” (50.01% certainty).
- Criminal
2. Civil
Law or Equity Remedy?
- Ordering the loser to do something (specific performance) or refrain from doing something (an injunction or restraining order), or to undo an agreement (rescission).
- Given only where money is insufficient.
Equity Remedy
Law or Equity Remedy?
- Compensation (money).
- Decided by jury, reviewed by judge.
Law Remedy
General ____ Court Structure:
Lower Trial Courts > Trial Courts > Intermediate Appellate Courts (circuit courts) > Court of Last Resort (sometimes called Supreme Court).
State
Trial courts in the federal system are called ______.
District Courts (94 federal judicial districts).
To try a case in a federal district court, litigants must show one of two things…
- Issue of federal question.
2. Complete diversity of citizenship between parties, plus $75K.
U.S. (federal) District Judges are appointed by __1__ and confirmed by the __2__.
- President
2. Senate
The intermediate appellate courts in the federal system are the 11 ______.
Circuit Courts of Appeal (plus the DOC Court).
The ______ courts of appeal are formal, with no juries, and typically the end of the line for most cases.
Circuit
The following are characteristics of the _______ Court:
- 9 Justices (1 Chief, 8 Associate)
- Limited jurisdiction, agrees to hear very few cases per year (100-150 cases).
- Petitioners must file a petition for a “writ of certiorari” (which asks the court to review the Court of Appeals decision) or, if they are in prison, for a “writ of habeas corpus.”
- no juries.
The United States Supreme Court
In order for a court to have the ability to decide a controversy involving a particular person or property, that Court must have:
__1__ Jurisdiction - power over the person against whom the suit is brought or property involved in the suit, and
__2__ Jurisdiction - power over the topic of the dispute.
- Personal
2. Subject Matter
Corporations are residents of the State of (1) incorporation, (2) its principal place of business, which means…
They can be sued in either location.
Every state has enacted a “_______” which allows a court to exercise personal jurisdiction over out of state defendants based on activities that took place within the State, including:
- Transacting any business within the State.
- Committing a tortious act (civil wrong) within the State.
- Ownership, use, or possession of real property in State.
Long Arm Statute
Which statute considers these characteristics:
- Quantity of contacts.
- Nature/quality of contacts.
- Source/connection of cause of action to the contacts.
- Interest of the forum state.
- Convenience or lack thereof to parties.
The Long Arm Statute
The following generally permit use of the “______” Statute.
- Caused an auto accident or tort in state.
- Breaches contract formed in state.
- Goods in “stream of commerce”.
Long Arm
The main grounds for determining the Long Arm statute’s suitability (in determining personal jurisdiction) with respect to E-Commerce involves a sliding scale which uses “______” as a primary metric.
Website interactivity.
EX: amazon.com is very interactive and national, thus, can be sued in any state.
Which Jurisdiction is described (federal, state):
- Diversity and Federal Question (FQ) are grounds for this jurisdiction
Federal Jurisdiction
Which Jurisdiction is described (federal, state):
- State Courts can hear virtually all Federal and State claims.
State Jurisdiciton
Which Jurisdiction is described (general, limited):
- Bankruptcy courts, tax courts, drug courts.
Limited Jurisdiction
Which Jurisdiction is described (general, limited):
- Trial courts, District courts, (many types of cases).
General Jurisdiction
Which Jurisdiction is described (original, appellate):
- Lawsuits start and trials occur.
Original Jurisdiction
Which Jurisdiction is described (original, appellate):
- Where reviews occur.
Appellate Jurisdiction
When plaintiff’s “cause of action” (i.e., their claim) is based on an alleged violation of U.S. Constitution, a treaty, or a federal law or federal agency violation, “_______” Question is called into play.
Federal Question (to determine Federal Jurisdiciton).
When: All Ps & Ds must be residents of different states (1) AND Amount in controversy must exceed $75,000 (2), “______ of ______” may be claimed to reach Federal Jurisdiction.
Diversity of Citizenship.
In such a case, the law of the state where the Federal Court sits is applied.
Concurrent or Exlcusive Jurisdiction?
- When both Federal and State Courts have the authority to hear the same case.
Concurrent Judisdiction
Ex. Diversity of Citizenship Cases. In such cases, Defendant can remove case to federal court if two criteria are met (different states and ^75k).
Concurrent or Exlcusive Jurisdiction?
- When only State Courts have the authority to hear a case.
Exlcusive Judisdiction
Ex. Bankruptcy, Federal Crimes, Suits against the US.
Concurrent or Exlcusive Jurisdiction?
- When only Federal Courts have the authority to hear a case.
Exlcusive Jurisdiction
Ex. Divorce, Adoption.
Which factor do the following statements involve with respect to whether or not a court will hear a case:
(either standing, ripeness, mootness)
- Injury: P must have suffered actual injury to legally protected interest; No hypotheticals.
- Causation: P must show that D likely is the party caused that caused the injury.
- Redressibility: P must show there is something that a court can do about it; Can’t be a “political question” to be resolved by another branch.
Standing
To be heard by a court, a case must generally be “__1__” (someone’s interests are actually affected now) and not “__2__” (i.e., still in controversy at the time of trial).
- Ripe
2. Moot
New York has highly developed “_______”.
either contract law, corporate law, pro-consumer, environmental law
Contract Law
California has highly developed “__1__” and “__2__”.
either contract law, corporate law, pro-consumer, environmental law
- Pro-Consumer
2. Environmental Law
Delaware has highly developed “_______”.
either contract law, corporate law, pro-consumer, environmental law
Corporate Law
The “____” decides what evidence the Jury hears.
Judge
In most criminal cases involving adults, a jury is required unless waived by the “_____” through a plea.
Defendent
Use of a jury is in decline in criminal or civil cases?
Civil
Most cases are now decided before an arbitrator or judge in what is called a “bench trial”.
Order the following steps in a lawsuit:
__. Enforcement and Collection of the Judgment
__. Appeal
__. Post-Trial Motions
__. Trial (Opening Arguments, Evidence, Closing Argument, Jury Instructions, Jury Deliberation, Verdict, Judgment)
__. Jury Selection
__. Pretrial Conference > Further Discovery
__. Motions for Summary Judgment
__. Discovery
__. Motions for Dismissal or Judgment on Pleadings / Answer
__. Complaint Filed > Service
__. Event > Attorney Consult > Investigation > Cost/Ben. Analysis
- Event > Attorney Consult > Investigation > Cost/Ben. Analysis
- Complaint Filed > Service >
- Motions for Dismissal or Judgment on Pleadings / Answer
- Discovery
- Motions for Summary Judgment >
- Pretrial Conference > Further Discovery
- Jury Selection
- Trial (Opening Arguments, Evidence, Closing Argument, Jury Instructions, Jury Deliberation, Verdict, Judgment)
- Post-Trial Motions
- Appeal
- Enforcement and Collection of the Judgment
The following are the most common “____” that give rise to “cause of action”, and ultimately a suit.
- Breach of Contract
- Tort / Infringement
- Statutory Violation (Antitrust, Securities)
Events
Corporate Counsel is “____” your lawyer.
NOT
Because in such a case, there is no attorney-client privilege. Thus, not necessarily any confidentiality.
Retainer, Hourly Fee, Contingency, describe types of what?
Fee Agreements
The following are used for what?
- Cost of Suit (monetary, reputational, opportunity costs)
- Likelihood of Success
- Collateral consequences
Deciding whether to sue or settle.
The following are contained in a “____” which begins the litigation process.
- Jurisdiction, facts, remedy requested.
Complaint
Must be filed promptly and include ALL claims. May be on behalf of individual or group of plaintiffs (class action).
What type of case must satisfy the following criteria:
- Numerousity (too many to join together), ~more than 10.
- Commonality (common question of law or fact).
- Typicality (representatives’ claims must be typical).
- Reps must fairly and adequately represent the class.
Class Actions
Stakes are VERY high because judgements are intended to satisfy ALL plaintiffs (could be millions of people).
Commonality & Typicality are usually the hinging factors.
If served with a complaint…
DON’T IGNORE IT! (one thing to never forget). Otherwise face an automatic loss.
After receiving a complaint, you should place a “____” on all potentially relevant documents.
Litigation Hold
Which of the following 3 responses to a complaint might NOT result in a case proceeding.
- Admit some or all of allegations
- Admit the allegations and claim affirmative defenses
- Deny the allegations
- Admit some or all of allegations. Results in admissions of fact, or judgment for plaintiff.
A “_____” challenges legal sufficiency of complaint: “failure to state a claim upon which relief can be granted”. Thus, even if all of the facts as alleged are true, there is no legal claim here.
Motion to Dismiss (MTD)
The following can be grounds to file a “_____”.
- For insufficient service (usually just a delay tactic)
- For improper venue (forum non conveniens)
- For lack of personal jurisdiction
- For lack of subject matter jurisdiction
Motion to Dismiss (MTD)
Forum Non Conveniens means that…
A court with jurisdiction may refuse to hear the case if there is another forum with jurisdiction that is more convenient
However, an adequate alternative forum must exist, and courts must balance private/public interests when selecting court.
In responding, defendant can file a separate “____” against the plaintiff. This claim must be related to the original claim.
Counter Claim
The following describe what?
- Depositions
- Interrogatories
- Requests for Admission or Examination
- Electronic
Types of Discovery
The following describes what type of Discovery?
- Sworn testimony by party or witness recorded by an authorized court official – attorneys present
Depositions
The following describes what type of Discovery?
- written requests to another party to (1) admit the truth of a matter related to trial, or (2) to allow the requesting party to examine the property/document at issue.
Requests for Admission or Examination
The following describes what type of Discovery?
Written questions to which written answers are prepared and signed under oath – only given to parties and not witnesses – attorneys present
Interrogatories
The following describes what type of Discovery?
Emails, voicemail, spreadsheets, etc. Can be voluminous and expensive to gather and process.
Electronic Discovery
What is it called when a party requests a motion asking for a judgment before/during trial but after discovery.
Motion for Summary Judgement
Civil trial juries generally consist of __ jurors, while criminal trials can consist of __ to __.
Civil - 6.
Criminal - 6 to 12.
The entire group of potential jurors are known as the “____”.
Jury Venire
What attorney-administered questionnaire is used to ensure individual jurors are not impartial or biased.
Voir Dire
Potentially biased jurors may be eliminated from the jury based on either “__1__” or “__2__”.
- Peremptory challenges: Dismiss potential juror without stating any reason. Peremptory challenges may be made on the basis of a hunch, but may not be based on race or gender. Limited number of these.
- Challenges for cause: Challenges to a juror based on the juror’s answers to “voir dire” questions, which suggest that he or she cannot approach the case impartially. Elimination is upto Judge’s discretion.
98% of conflicts are resolved without a “____”.
Trial. They are expensive, risky, sometimes long and thus, RARE.
The following is criteria for what?
- Must be relevant
- Must not be unduly prejudicial
- Must not be hearsay (can’t put words in someone else’s mouth)
Evidence presented
The secretive, decision-making process of the jury is called what?
Jury Deliberations
In criminal cases, the “____” must be unanimous.
Verdict
What is it called when the Jury can not reach a verdict?
A Hung Jury
Can the judge ignore the jury’s verdict?
Yes, though it rarely happens.
How long is the appeal option in Colorado?
45 Days.
A “____” can be filed that can ultimately lead to an affirmation, reverse, or remand of a previous judgement.
An Appeal.
Under what circumstance will the prevailing party get a “writ of execution” from court and order the sheriff to seize and sell the losing party’s property, to the extent allowable.
If the losing party does not pay.
The following are reasons businesses might opt for “____”.
- Litigation is expensive, lengthy, public.
- “____” can be cheaper, private, faster, and somewhat more predictable.
Alternative dispute Resolutions (ADR)
The following is helpful when making a “_____”
- Determine your interests. Ask yourself why. (BATNA)
- Separate people from Problem.
- Understand other party’s interests.
- Determine if there’s a way to expand the pie.
- Frame the negotiation. First strike advantage.
- Build Trust (avoid lies).
Negotiations
“____” involves a neutral 3rd party confers with both sides, often in shuttle diplomacy. Such an act is very flexible, non-binding, and confidential.
Mediation
The following describes what?
- Like a trial (briefs, limited discovery, hearing) but private, more flexible, often more specialized, and often faster.
- More reliable than foreign court systems.
Arbitration
The following should be included in a “____” clause.
- Types of disputes subject to “____”.
- Governing procedure (language, location, rules, # of arbs).
- Governing law.
- Types of Damages recoverable.
- Binding or non-binding.
Arbitration clause
