Exam 1 Flashcards
What is the law?
Law defines what is legally right and wrong
-The law establishes rules that govern society
Sources of American Laws
-Constitutions: US and State constitutions
- Statutory Laws: US, State, Local Laws
-Regulations: Created by administrative agencies
-Case Law/Common Law Doctrine: Federal and State case law
Constitutions
establish organization, powers, limits of the government
State Constitutions
Create state governments, highest form of law within states
Types of statutory laws:
-Federal Statutory Law
-State statues
-Local/Municipal
Administrative Law
Rules, orders, decisions or decrees issued by administrative agency
Types of administrative bodies:
-Executive Agencies-Answer to president/governor
-Regulatory Agencies-Answer to generally to a board or commissioner appointed for a fixed term
-SEC and FCC
Common law:
Common law is based upon old English law
Legal Terms
-Plaintiff/Petitioner: Bring the action
-Defendant/Respondent-Party being sued
-Laches: Defenses raised by respondent (SOL)
-Stare decisis: Doctrine of precedent, under which a court must follow earlier decisions when the same facts/law appear
-Legal Precedent: Is a court decision that is considered controlling on facts or legal issues
-Jurisdiction: The power to make egal decisions and judgements
Concept of Stare Decisis
General principle: Judges must follow precedents
Two main aspects:
-Court should not overturn its precedent absent a really good reason to do so
-Decisions by higher courts are binding
Legal Reasoning – IRAC
-Issue: What is the case or controversy about?
-Rule: What rule of law will apply?
-Application: Applying the rule of law to facts and circumstances giving rise to the controversy
-Conclusion: Decision
Legal Reasoning: Things to consider
-Generally, decisions are not black and white
(Both sides are usually somewhat convincing)
-Laws/Statutes can be flexibly interpreted
-Personal beliefs/moral philosophy can play a role, judges are still human and have biases
Classifications of Law
Substantive and Procedural
Substantive:
Defines and creates legal rights and obligations
Procedural:
Methods of enforcing the rights established
Federal VS Private Laws
-Public addresses the relationship between person and government
-Private address relationships between private entities
Types of decisions:
-Unanimous Decision
-Majority Opinion
-Concurring Opinion
-Dissenting Opinion
-Plurality Opinion
Unanimous Decision:
All justices agree on law and facts presented
Majority Opinion:
Outlines the rational of the judges that decided the case
Concurring Opinion:
Outlines the rational of the judges agreeing on the ultimate outcome but not the majority’s legal reasoning
Dissenting Opinion:
Outlines the rational on why the justices disagree with the majority’s opinion
Plurality Opinion:
Unable to get a majority
Article 4 section 2:
Citizens in each state are entitled to enjoy the privileges as immunities of all the states
-Can NOT discriminate (Property, employment, court system)
Checks and Balances system
-Legislature enacts laws, but require executive approval
Article 4 section 1:
Every state will respect every other states public acts, records and judicial proceedings (Civil Only)
Importance of this clause: It allows people and business to effectively and uniformly conduct business across state lines
Separation of Powers
Constitution provided for 3 branches of government
-Executive – Presidents
- Legislature – Congress
-Judicial – Court System
Commerce Clause
It was enacted to precent the states from enacting laws that would interfere with trade and commerce among the states
-Article 1 section 8
- Congress has the authority to “regulate commerce with foreign nations, and among the states”
US v. Alvarez
Perfect example of checks and balances system
-mainly limiting prohibition to situations involving fraud
Wickard V. Filburn 1942
-Case involved wheat production on individual wheat farm
-Individual farm affects interstate commerce no matter how small the farm
Commerce Clause Today
-Feds have jurisdiction over every commercial enterprise
Supremacy Clause
Federal law Is the supreme law of the land, state law cannot supersede fed law.
Tax and Spending
Congress has the explicit “power to lay and collect taxes and duties… etc.”
-Article 1 section 8
-Taxes must be uniform
-If reasonable – permissible under commerce clause
Businesses and Bill of Rights
The bill of Rights was adopted to protect individuals against the government
-Corporations are considered legal entities or legal persons
14th Amendment
“No state shall deprive any person of life, liberty, or property without due process of law.”
Freedom of Speech
Most essential component to having a democratic government
-Applies not only to spoken words
Corporate and Commercial Speech
-Corporate free speech is protected
-Corporations are free to make political contributions just like individuals
- Not absolute however still subject to reasonable restrictions
Freedom of Religion
Government may not establish any religion nor prohibit the free exercise thereof
-No official religion/state sponsored religion – Better know “establishment clause”*
-Individuals may practice any religion of their choosing**
Burwell v. Hobby Lobby stores (2014)
Corporations are citizens and entitled to 1st amendment protections not least restrictive measure
4th Amendment
Protects the rights of the people to be secure in their persons, houses, papers, and effects”
-Better known as search and seizure
-Before searching or seizing property, law enforcement must have a search warrant
-Search warrant is legal authority to search or seize
Due Process
The fifth and fourteenth amendment provides for two types of due process prior to a taking (life, liberty, or property)
5th Amendment
No person shall be compelled in any criminal case to be a witness against himself
-Cannot be forced to give testimony (answer questions) that might be subject to a criminal proceeding
- Miranda v. Arizona (1966) Burglary suspected questioned and confessed not advised of his rights
-Applies to Federal and State cases
Equal Protection
The 14th amendment forbids states from denying any person equal protection under the law.
- Equal protection (like substantive due process) relates to substance of the law or action
Privacy
There is no expressed constitutional right of privacy
Commerce Clause
It was enacted to precent the states from enacting laws that would interfere with trade and commerce among the states
-Article 1 section 8
Wickard V. Filburn 1942
-Case involved wheat production on individual wheat farm
-Individual farm affects interstate commerce no matter how small the farm
Heart of Atlanta Motel V. US 1964
-Hotel owner sued for challenging the Civil Rights act of 1964
Supremacy Clause
Federal law Is the supreme law of the land, state law cannot supersede fed law.
Tax and Spending
Congress has the explicit “power to lay and collect taxes and duties… etc.”
-Article 1 section 8
Businesses and Bill of Rights
The bill of Rights was adopted to protect individuals against the government
-Corporations are considered legal entities or legal persons
Due Process
The fifth and fourteenth amendment provides for two types of due process prior to a taking (life, liberty, or property)
Equal Protection
The 14th amendment forbids states from denying any person equal protection under the law.
Judiciary’s Role
System of American Government would be meaningless without the judicial system.
-Courts interpret laws and apply to certain situations
Judicial Requirements
Jurisdiction means “law” and speak”
- Before a court can hear a case, it must have jurisdiction over: The defendant, the property in question, subject matter of the dispute.
Jurisdiction
“In personam” which is personal jurisdiction, where you have jurisdiction over the individual
- Courts have personal jurisdiction of people and businesses within their geographical limits
Long Arm Statutes and Corporate Contact
LAS – Gives states personal jurisdiction of out of state residents based upon activities that took place in state
- “Reaching out and dragging defendant into another state”
In rem jurisdiction
Used in disputes where property is the subject matter of the dispute
-The property must be within the court’s jurisdiction
Subject matter jurisdiction
SMJ – Is a limitation on the types of cases a court can hear
There are two types of court: General jurisdiction – Unlimited
- Limited jurisdiction
Exclusive v. Concurrent Jurisdiction
Concurrent Jurisdiction – where both state and federal courts have the power or ability to hear cases
- Examples include diversity of citizenship cases, both courts can hear the matter
Exclusive jurisdiction is when only state of federal courts can try the case
Standing
Before a suit can be filed the plaintiff must have standing to sue
Standing can be broken down into three elements
- Harm: Plaintiff must have suffered an invasion of legal interest
- Causation: There must be a connection between the action complained and the injury
- Remedy: It must be likely that a favorable decision will remedy the injury suffered
State Court System
Every state court system is slightly different
Generally state court systems are made of:
- Local courts- municipal courts, town, or city
- State or county courts: can limited or general jurisdiction
- Highest courts (supreme court in the state) – not always the case, EX Texas and New York
Federal Court System
A federal system is a 3-tiered system
- US district courts
- Court of appeals 12 circuits- Texas is part of the 5th circuit (13 courts)
- Supreme Court- 9 justices that serve for life
- Federal court justices are appointed by the President but confirmed by congress (federal judges may be impeached due to illegal or unethical behavior, but is not likely)
Cyberspace and international jurisdictions
The internet’s ability to circumvent traditional political and geographic boundaries has caused issues with regards to personal jurisdiction
Alternative dispute resolution HEAVILY TESTED
Litigation (suing in court) is expensive and time consuming
ADR offers a quicker, more private, and cheaper alternative to litigation for resolving business disputes
- ADR services are provided by government and private organizations
- 90% of civil cases are settled using some form of ADR
Negotiation: Informal resolution process where the parties discuss possible settlement
Mediation: A neutral 3rd party attempts to settle the dispute, a good mediator shows strengths and weaknesses in both parties, but can only make suggestions and recommendations
Arbitration: The more formal ADR alternative (mini or expediated trial)
- Can be sole arbitrator or a panel
- Can be legally bidding or not
- Formal rules of evidence are not as applicable
Arbitration
- Arbitrator acted in “bad faith” substantially prejudice one party
- Award violates an established public policy
- Arbitrator exceeded his or her authority
Issue of arbitrability:
Courts decide whether an arbitration clause is applicable or not to the case or controversy at issue
Arbitration Clauses:
just about any commercial matter may be submitted to arbitration through a clause in the contract between the parties
Arbitration Statutes:
Some states have statutes mandating arbitration in certain situations
Discovery
Discovery is a way or process for either party to obtain information from the other party prior to the trial
- This also includes access to witnesses, documents, records, and medical records
Forms of Discovery
Depositions: a sworn testimony given by a party or witness recorded by a court representative
- Both sides attorneys ask questions under oath and record
Interrogatories- are written questions delivered to a witness or party- answers given under oath
- Attorneys will help prepare written responses
- Very specific purpose- example contract details
Electronic discovery
- electronic or e-evidence consists of electronically stored records, emails, voicemails. Tweets. Blogs, social media posts, spreadsheets
Procedural Rules
- Procedural rules provide the framework and outline the parties’ obligations at each stage of the proceeding
- PR are very complex and can vary greatly between jurisdictions
Stages of Litigation
There are generally three stages to litigation (Pretrial, trial, post-trial)
Types of attorney fees
Attorneys should always do a retainer agreement
- Outline the services to be provided and fee arrangement
Fixed fees – Transactional; flat fee
- Drafting a will or business operating agreement
Hourly Fee- $ per hour
- Usually involves a retainer fee
- Per hour rate varies
Contingency fee
- Attorney only gets paid if the plaintiff is successful
- Only available in certain circumstances; most common personal injury
Pretrial Motions
Motion- is procedural request submitted to the court by an attorney
- Opposing party needs to be provided notice of motion
- Pretrial motions
Rules of evidence
determines what evidence is presented in the case
Excited utterance
a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.
-Exception to hearsay rule
Verdict
is the judge or jury’s decision
- After the verdict, the trial is over
- Juries also make an award (damages or $$$)
Motion for new trial
requires an error of law of misunderstanding of the evidence by the jury
Motion for Judgement N.O.V.
- A second motion for a judgement as a matter of law
- If successful, the jury verdict will be set aside, and judgement entered in favor of the opposing party
Appeals
Either party may appeal not only a jury verdict but also any judges ruling on any motion
- Appeals are costly and generally not very successful
- Appeals require some legal error
- Barney files a suit against Courtney who fails to respond. Consequently, Courtney
d. is subject to a judgment of default
- Gini and Huruto present their case to an Idaho state court for resolution. The court defers to a different Idaho court’s finding of fact in the case and focuses on the application and interpretation of the law to dispute. The court currently deciding Gini and Haruo’s dispute is
A. An Appellate court
- Laws enacted by legislative bodies at any level of government make up the body of law is generally referred to as
A.) Statutory law
- In a suit to compel arbitrations a court will order a dispute to be arbitrated if
a.) both parties consented to it
