Exam 1 Flashcards
What is a law
Enforceable rules governing relationships among individuals and bw individuals and their Society
Rules governing relationships of society
Ethics
Principles that constitute what is right and wrong
Primary sources of American law
Constitution of US Constitution of states Statutory law Regulations by agency Case law and common law
Statutory law
Laws passed by Congress, state legislators or local governing bodies
Second sources of law
Books or articles that clarify and summarize laws
Constitutional law
Law expressed in the constitution
Administrative law
Rules and orders and decisions of administrative agencies
Case law
The doctrines and principles announced in cases
Governs all areas not covered by statutory law or administrative law
Part of common law
Essentially judge made law
Common law (common law of England)
Associated with judge made law
Rules established by courts
Followed until court ruling changes
Civil law (French law)
Laws made by the will of the peoples
Originating in Europe
Most all states use common law except for what state???
Louisiana who uses civil law
Sharia law
Law based on religion
Defendant
Party being sued
Must defend themselves
Plaintiff
Party that is suing
Precedent
Decision that furnished an example for authority for deciding subsequent cases involving identical or similar legal principle or facts
State decisis
Stand on decided cases
Judges are obligated to follow the precedents established within their jurisdiction
Two aspects of state decisis
Court should not overturn own precedents unless compelling reason to do so
Decisions at top court r binding on lower courts
Criminal law
Concerned with wrongs committed against the public as a whole
People v public
What is at stake in a criminal case
Life
Liberty
Freedom
In criminal cases how high is the burden of proof
It is higher and held with the government
Beyond reasonable doubt
Beyond reasonable doubt
0-100 scale of how guilty a person is
Govt doesn’t have to get 100 they have to get at least 95+
What does Absolute certainty in burden of proof mean
100% know how ( you 100% who committed the crime )
How to prove a case beyond reasonable doubt
You don’t have to prove to the jury that defendant did not do it
You have to plant the idea that he couldn’t have done it - giving them reasonable doubt (he might have done it)
What does not guilty mean in a court ruling
The govt has not proven that this person can be prosecuted for his crime
Casey Anthony Case
- child buried in back yard
Civil law
Rights and duties that exist bw persons and their governments and a person right are violated
Person vs person
Case bw citizen
What is at stake in civil case
Money
In civil law how large is the burden of proof
The burden proof is lower Bc preponderance of the evidence
There’s greater weight of the evidence “you need more of it”
In a civil you are obligated to
Prove your side over the other party
You win when 51 vs 49
Double jeopardy
On entity cannot prosecute a person twice for the same offense
The government only gets one bite of the apple
Only one shot
New evidence is discovers just after a “not guilty” verdict? Can the persecutor “try again”
No
Can persecution call the crime committed something else? For example if a person was found not guilty of rape: can he get prosecuted for assault and battery??
No
A rose is a rose is a rose - smells as sweet whatever you call it
Can a criminal who is prosecuted by one sovereign who found them not guilty (Georgia) get prosecuted again for the same crime by the US COURT
Yes
It is a different person prosecuting (diff entity)
Can someone who was found not guilty in criminal court be sued in civil court
You bet! Different courts
Five sources of law
Constitution Legislation (statutory law) Administrative Executive orders Case law (common law)
Constitutional law
Frame work for our laws- all laws must follow this document
State (10th amendment)
Federal (article 123)
-can not touch our fundamental rights - bill rights
Constitutional law: does the constitution even apply “Doctrine of state action
The govt can’t interfere with your right, but private citizens can do this -
constitution protects you only form violation from the govt - constitutional state action
Legislation (statutory laws):
Federal (passed by Congress)
Issues associated with legislation:
If judiciary interprets the law a certain way can legislator change the law
Yes
Issues associated with legislation:
If legislation conflicts with the constitution, which one controls
Judicial branch marshals decision established
Judicial review
It is the job of the judge and court to determine if the stuff comply with the constitution
Uniform statutory laws
All laws about doing something should be the same in each states
National conference of commissioners on uniform state laws: and uniform commercial code UCC
Laws regarding selling of products are same throughout the states
Executive orders can they be repealed by Congress
Yes
But the president can veto - but congress can override with 2/3 vote by senate
Can our of court settlements be used for other cases?
No you can’t
Trial court verdicts
Cases Connor use verdicts form a similar case
Cases have to be appealed. Appellate decision are in national reporter system
On matters of federal law do federal courts have to follow precedents set in other circuits?
State supreme courts and their right to interpret laws (highest court in state)
Has the last word to interpret state laws
Ex. In Arkansas you follow the 8 circuit - 8 Ball
State vs Brown
Investigated allegations of violation of narcotic laws
Gave permission to search his house without warrant
Take away: State courts can protect the citizen more but not less then that the protection provided form the us constitution
State decisis does what
Channels the law
It serves as a beacon for the trial judge so that they are fair and just
Like a lighthouse guiding s captains ship
The doctor one state decisis is most closely associated with the development of which of the following systems of law?
Common law
Federal trial court judge in Little Rock is considering a case which involves a matter of federal laws
Follow the 8th circuit
Acme company which sells sporting goods… did acme company violate freedom of speech?
Government cannot violate freedoms but private can
Acme has not violated the constitution
Marbury v Madison 1803
What was the final ruling of the Supreme Court
It is the responsibility of the Supreme Court to determine whether or not a statute violates the constitution - judicial review
Trial judge in Little Rock is considering a case which involves a point of Arkansas law that is somewhat unusual. What ruling would constitute a precedent which is binding on a trial judge…
Dis by ark suprem court
Dis by Texas suprem court
Dis by another trial court in Little Rock
Dis by court judge in Fayetteville
Decision by the arkansas Supreme Court
Bc looking for higher court in Little Rock judges jurisdiction
Trial by ordeal
Endure torture and survive = you were telling the truth
Ancient practice
Trial by combat
You fight it out and who ever is remain standing wins innocence
Dueling
Fight it out between two people and kill the other one
Whoever wins is right
Trial by ordeal
Trial by combat
Dueling
All don’t do what
Tackle the original dispute
Civil litigation
Civil courts have an open door policy about cases
Ex.
Koch v Adams
Phone taken by teacher
Stella Liebeck case
Stella liebeck case
McDonald’s coffe dispute (she got 2.8million) for spilling hot coffee on herself
McDonald ask for appeal case - can’t award women to punish you can only award to cover damages to her burns
- punitive damages
Civil litigation 3 main point
Not all cases are submitted to courts are taken into consideration - of not appropriate
Americans don’t file as much lawsuits as other wealthy democracy
Most lawsuits are settled out of courts
Bc expensive
Role of the attorney
To resolve disputes through the civil justice system
Adversary system
Two advocates representing their parties before and impartial person of group of people (jury) or (judge)
Method of payment for attorney
Defendants lawyer - hourly pay
Plaintiffs lawyer - contingency fees
Congenital fees
You have to win for them to actually get paid
They got to want monetary recovery - they get part of that
One way to reduce litigation: use the Canada rule
No contingency fee
If people cannot afford it’s- allows the port to obtain quality lawyer
Other ways to reduce litigation
Prohibit lawyer ads
Loser pays rule
Discourage frivolous lawsuits: Rule 11
Rule 11 frivolous law suits
If a plaintiff filed a lawsuit that has no marit (no chance to win) the judge can dismiss the lawsuit and make them pay the fee
What are the two players of the court room
Jury and judge
Jury
Rules on matter of fact
Listen to only evidence
Can be requested upon both parties
Judge
Rules on the matter of law
If trial judge applies rule 11 to a case that means that
Frivolous lawsuits
The defendant is entitled to damages as a result of the plaintiff filing a frivolous lawsuit
Primarily the responsibility of the jury in a civil case
Listen to the evidence presented at trial and determine what happens in the case
Lawyer indicates when that she want to be paid on contingency fee bases
This means she only gets paid when she wins the case and gets a percentage of the amount recovers
You have to be plaintiff
Trial courts
Where you get judged at the trail - where the have the trial
Original jurisdiction, judge, jury, witness
Appellate court
Re review court ruling of a trial after the appeal
Bw 3 to 9 judges, no witnesses, no jury, no new evidence
How are state judges chosen
State judges are elected and appointed by official
What is the Missouri plan: for state judges
Judges are appointed by the governor and then retained by vote
Federal judges are chosen by
Appointment by the president and must be confirmed by the senate
Term “good behavior
What is jurisdiction
The power of a court to hear a civil case
What are the two requirement to have jurisdiction
You need jurisdiction over the person
Jurisdiction over the subjected matter
How to revive jurisdiction over the person
Defendant is a resident of the state in question
If person is non resident then the “long arm statue” might give jurisdiction - requires minimal contacts rule
Ex. Doing business in the state, commiting crime in the state, etc
Jurisdiction over the person in cyberspace
Business has established “minimum contacts” if they have a physical presence (store or office) in a state, or has targeted the market of a particular state
8 circuit of appeals
Arkansas is part of this
It’s basically the old Louisiana purchase
Structure of federal courts
District courts (trial courts)
Court of appeals (in Arkansas that is 8 ball)
Us Supreme Court (highest courts in our system)
Federal courts and jurisdiction over the “subject matter:” limited by both constitutional and statutory laws
Exclusive: United States is a party, bankruptcy, copyright, patent
- can’t sue FED in state court
- need to be in fed court
Concurrent- can be brought into fed court
- federal question (interpretation of fed law)
- dealing with diversity of over 75000 dollars
What is a diversity of citizenship cases
One person from another state v another person from a diff state
No plaintiff can have the same state citizenship and any defendant
Judge apply state laws in this
Pre trial court procedures
File complaint
Service of process (act of being sued) - delivery of complaint
Answer: counter claim and cross complaint
Discovery: find out as much as you can about other sides case - interrogatories and disposition
Disposition what is is
Use witnesses to questions
Trial procedures
Selection of jury Trial procedure Testimony Instructions Verdict
Selection of jury
Jury selection and voir dire
Challenges for cause (do they have any feeling toward this before we begin)
Peremptory challenge (excuse at least 3 people of jury for the bases of anything except race or sex)
Learning about potential jurors: consulting firms and now social media
Select jury that will vote for them then theirs opponent
Is it the role of the lawyer to find a juror who are most likely to review the fact if the case in a fair and impartial manner
False
Trial procedures
Open statement by lawyers : lawyers tell people what they are doing, want the jury know what to listen for so they don’t miss it
Testimony
Direct v cross examination
Hearsay
Criminal cases: Prior convictions generally not admissible
Jury must make their decision based solely on what
The evidence
Do verdicts have to be unanimous
No
How does the trial judge exercise control over the jury
Summary statement
Direct verdict
Judgment NOV
What is summary judgment
Judge ends the dispute before the trial even begins
One side is entitled to win by the law
Direct verdict what is it
Usually the party with the burden of proof begins first
“I rest my case” I have showed you all my proof that I have
Judge ends the trio in the middle
Judgment NOV
Not standing verdict
Really outraged verdict that cannot be supported by the evidence
Occurs after trial
The appeal
Notice of appeals filed w the trial court
Brief filed by lawyer
- written argument of why there is reversible error and not reversible error
Oral argument
No new evidence in appeal court
Action of appeals court
Appeal to higher court
Actions by appellate court: affirm
No mistake and decision of trial court stays
Actions by appellate court: reverse
Decision reversed or modified
What is a class action lawsuit
Make level playing field fir plaintiff to go against big company
Collection of judgements
Not exempt
Garnishment
What does not exempt mean
Assets can be seized
Can get Sheriff to get the items and sell them to get the judgement for you
Look at deeds at personal items
Garnishment what is it
Seizure of wages
Employer sends paycheck to employees but you intercept it (25% of it)
If the debtor cannot or will not pay the judgment can he be sent to prison???
Not anymore only in England
What is the order of the events in civil lawsuit
Complaint
Service of process
Answer
Discovery
Illegal to use peremptory challenge to disqualify a juror in the basis of what
Race and gender
Judge feels that the facts are not in dispute and that the case can be resolved without the need for trial, the judge would
Issue a summary judgment
Why is the ADR popular
Alternatives dispute resolution
Alternatives to litigation
- mediation
- arbitration
What is mediation
Bring in 3rd party to figure out middle ground so that both party can win
Not binding- don’t have to except
Judges like this and sometime do this first before trial
Arbitration what is it
Third party is looking for a winner
(Going to decide who wins)
This is binding
Usually done one things that are not a lot of money
Resolving dispute through administrative agency
Congress feel that they don’t have the ability to mess with these certain fields, so they delegate them to these agency
Administrative agency have what powers
Congress creates a an agency and defines its authority
It can make rules that have wait of law
Punish violators
Before and agency can make a ruling that has weight of law they have to do what
Give the public 30 days for comments
Public can be heard in the Merritt or that law
Then final issue can be done
The power to adjudicate
Hearing procedure (like trial but less strict on evidence)
Ruling by ALJ
Appeal to commission as a whole
- must go to the full place if that ruling before you can make an appeal / exhaustion of remedies doct
The constitution is the foundation of what?
It is the foundation of our entire legal system
What is the bill of rights
Gives feedings and liberty to the people
Assures the govt can never mess with these
Oldest constitution on earth is from where
The United’s states
What is federalism
Division of power between the federal govt and the state govt
What is the separation of powers
Division of power within the federal government
Split into 3
Executive
Legislative
Judicial
What is judicial review
Power of the court to interpret the constitution and decide if laws made by congress comply with it
What are the schools represented in the Supreme Court
Harvard Yale and Columbia
What does article one section eight cover
The rights of the legislative branch
Specifically the right to regulate commerce (commerce clause)
What is the commerce clause
Allows congress to regulate the movement of goods across state lines
Or anything act that may affect that
Ex. Heart of Atlanta motel 1964 civil rights law
What is the heart of Atlanta motel 1964 civil right law
Racial discrimination is illegal bc segregation has a negative effect on interstate movement of people bc can not find suitable living area = hindering interstate commerce
Legal justification to pass civil rights law
What does article 2 cover
The authority of the executive branch
Power of the president
What are the power of the president
He has the right to choose federal judge for judicial branch; subjected to approval by senate
He commander and chief of our military forces
He does not have the authority to declare war - that is congress power
What does article 3 cover
The judicial branch
Appointed judges by president are subjected to approval by senate and serve terms of good behavior
Article 4 deals with what
Full faith and credit clause
- official act of home state must be valid in all other states
Ex driver licens
What does article 5 deal with
Amending the constitution
What does article 6 deal with
The supremacy clause
What is the bill of rights
Gives the people their freedoms
First ten amendments
What does the 1st amendment deal with
Your freedoms of speech and religion
What is the establishment clause
Government must avoid excessive entanglement with religion
Cannot tell someone how to worship
Ex. Prayers before football games
What does the free excessive clause allow you to do
Give you the right to worshiping in anyway you want
What are the two types of freedoms of speech in the first amendment
Symbolic (political speech)
Commercial speech (advertisement)
What is symbolic speech
It is political speech
That is highly protected by the constitution (govt can’t take away)
Ex. Burning flag
Can place limits on expression if reasonable or content neutral
Ex. Flyers on cars
What is commercial speech
Usually advertising speech
That is given less protection by the govt
This is bc they need to protect the people
Ex. Deceptive ads
Bad frog brewery
What are unprotected speech
Clear and present danger
Defamation
Obscenity
What is clear and present danger speech
Words that can cause danger or harm to other people
Fighting words, threats
Ex. Screaming fire in movie theater
What is defamation speech
Defaming others with untrue things
What is obscenity
Something that doesn’t appeal to usual standards of an area
Defined by miller 3 guidelines
What did Miller v California 1973 do
Established the 3 guidelines to define obscenity
What are the 3 guidelines that define obscenity
If avg person would think it appeals to prurient interest (sexual stimulant)
If work depict sexual conduct in offense way
If it lacks serious artistic literal political or scientific value
What is considered when considering
Obscenity and the internet
Stanley v Georgia
States private possession of obscene material is protected by 1st amendment
But sending it is prohibited
