Final Review Flashcards
Rule of Law
a. Concept that laws that are made are generally and equally applicable
b. Idea that the law applies to EVERYONE in the same way
c. Almost all wealthy countries embrace the Rule of Law
What are the consequences of not having Rule of Law?
People will be sacred in invest and run a business which development will be stunted
Principles that define the rule of law according to the World Justice Project
i. Accountability
1. Even for people upholding the law (police, judges)
ii. Clear, Publicized, Stable, and Just Laws
iii. Process by which laws are enacted, administrated, and enforced is accessible, fair, and efficient
iv. Justice that is delivered timely
Common Law
- Emphasizes the role of judges in determining the meaning of laws and they apply.
- US follows the Common Law except: Lousina
Pros:
a. Laws can be concise
b. Stare decisis
i. Definition: Let the prior decision stand
ii. Judges follow precedents whenever possible
iii. Ensures certainty , stability, and predictability in the law
Cons:
a. Volume of Cases
b. Conflicting precedents
c. Distinction between the holding and dicta
i. Increases the difficulty of determining the precedent
d. Rejection of precedent/Bad precedent (belief cases were wrongly decided or times have changed)
Civil Law
- Relies more on legislation than judicial decisions to determine what the law is
- Civil Law Courts (Judges) do NOT make law and DON’T feel obligated to follow prior judicial decisions
Public Law
Governs how the public interacts with public
Includes Constitutional law, administrative law, and Criminal Law
Private Law
- Regulation of Private resources
Includes Property law, contract law and Tort law (form where a person has ex: negaliance)
Sources of Law Hierarchy
a. U.S Constitution
b. Statutes of Congress
c. Federal Administrative Regulation
d. State Constitution
e. State Senate
f. State Administrative Regulation
g. Local Ordinances
h. Case Law
Trial Court Judges v. Appellate Court Judges
Trial Court Judges:
Trial court judges oversee the first stage of legal proceedings, where cases are initially heard and decided.
Focus: Evidence and factual disputes
Proceeding: Trials with witnesses, evidence, and juries
Impact of Decisions: Affect the individual case directly
Appellate Court Judges:
Focus: Legal errors and interpretations
Proceeding: No new evidence; legal review only
Impact of Decisions: Can influence broader legal principles (precedent)
Appellate court judges review decisions made by trial courts to determine if legal errors occurred that affected the outcome of the case.
Jury Duty
To be eligible for Jury Duty in Georgia, you must:
i. Be a US citizen
ii. 18 years old
iii. Be proficient in English enough to understand and discuss the case.
iv. Be a resident of the county that sent you the jury summons.
v. Have NOT served on a jury in the last 12 months.
vi. Not currently be on a grand jury or on another trial jury.
vii. Not be under a conservatorship.
viii. Have had your civil rights restored if you were convicted of a felony.
Role of Juror
Role: Fact- Finding body
Types of Juries (Petit vs. Grand)
Petit Jury: Trial jury that returns a verdict in criminal and civil situations
- Consists of 12 persons
- Smaller juries are acceptable as many are 6 person juries
- Normally requires a unanimous decision.
- Textbook says: Some states have removed the requirement for a unanimous decision.
HOWEVER, Recent Supreme Court Case states the decision MUST be unanimous in SERIOUS CRIMINAL CASES (Ramos v. Louisiana).
Grand Juries: Determines whether there is enough evidence to formally charge someone with a crime
- Priavte
- Only prosecution presents evidence
Role of Lawyers and Attorney Client Priviledge
-Forbids a lawyer from revealing confidential facts and from testifying against a client.
-Extends to the lawyer’s employees in some cases .
Subject Matter Jurisdiction
refers to a court’s authority to hear and decide cases of a particular type or cases relating to a specific subject matter.
- ensures that a case is brought before the appropriate court that has the legal authority to address the issues involved
Diversity of Citizenship
i. Plaintiffs/Defendants are Citizens of Different States and each claim must be for more than $75,000
iii. Guard against State Court bias against the non-resident party
iv. Note, a corporation is a citizen of the state of incorporation and also a citizen of the state of its principal POB.
Is there subject matter jurisdiction?
Mark (citizen of GA) was corrsing a street in ATL when he was stick by a car during (citizen of NY visiting ATL). Car was owned by David emplyeers (delware corporation that has principal place of business in ATL). Mark Sues David and corporation in federal district court in ATL for 500,000.
No subject Matter jursdiction
Judicial Restriant
aka. Strict Constructionism or Judicial Abstention
Belief that change in society should result from the political process instead of court action
- Dominant philosophy throughout history
*like being a referee in a sports game who tries not to change the rules but just makes sure the players follow them
- Only Act When Necessary: Judges shouldn’t make big decisions about laws unless something really unusual happens
-Stick to the Rules (Precedent): Judges should try to follow decisions made in past cases whenever possible
-Follow the Constitution Closely: Judges look at what the people who wrote the Constitution originally meant, like reading instructions carefully to do something the right way
-Let People Decide Through Voting: Judges believe that if people want big changes, they should come from voting and new laws made by elected leaders
Judicial Activism
like when a referee in a game decides to change the rules to make the game fairer for everyone.
- Step In When Needed: Judges use their power to fix problems in society if they think it’s really important and waiting would make things worse.
-Help Make Big Changes: Judges think it’s their job to help fix unfairness or big problems, especially when lawmakers are too slow or can’t do it.
-Not Always Following Old Decisions: Judges don’t always stick to past rules if they think changing them would help people more.
-Focused on What’s Right Today: Judges make decisions based on what they think is important for the world we live in now, not just how things were in the past.
- Big Changes in History: In the 1950s and 1960s, some judges on the U.S. Supreme Court used judicial activism to help with important changes, like ending unfair rules about segregation.
Personal Jursdiction
How does a court get personal jurisdiction?
What if the Defendant is Out of State?
In Criminal Cases …
It’s the court’s power over the people involved in a case
Over the Plaintiff:
The plaintiff gives the court power by filing the case.
Over the Defendant:
The court gets power through:
Summons (official notice).
Service of Process (delivering the notice).
States use Long-Arm Statutes to get jurisdiction over someone outside their borders.
These rules only work if the person had enough connection (“minimum contacts”) with the state.
Minimum Contacts Test:
The defendant must have done one of these in the state:
- Committed a wrong (like an accident or harm).
- Owns property tied to the case.
- Made a deal or did business related to the case.
Criminal Cases:
The crime must happen in the state for the court to have power.
If the criminal flees to another state, they can be sent back through extradition (states agree to return the suspect).
Methods of Discovery
Interrogatories: Series of written questions presented to the opposing parties.
EX: Requesting the other side to give names of witness that saw what occurred
Request for production of documents: Either party asking the other to produce specific documents.
Depositions : Lawyer orally asks questions of the possible witness or any other person involved in the case ( this is recorded and a written transcript is prepared).
1.Best method of discovery because it reveals the most information
a. Depositions are very costly
Request for admission: Asking to admit that some issues in the original complaint are no longer in dispute
Burden of Proof
What the plaintiff has to show to win the case and get money or damages from the other side
Criminal Cases: Beyond a reasonable doubt?: 90 to 10%
Civil Cases: Preponderance of evidence: 49 to 51%
Clear and convincing proof: 40 to 60 %
Freedom of Speech
The Constitution says, “Congress can’t make laws that take away freedom of speech.”
This includes talking, writing, and symbolic actions (like burning a flag or silent marches).
Not Everything Is Protected:
Some speech isn’t allowed, like:
Lies that hurt someone’s reputation (defamation).
Threats or speech that incites violence.
Fighting words that lead to immediate fights.
Obscenity (highly offensive or inappropriate content).
Reasonable Limits:
The government can sometimes limit speech to keep people safe, but the rules must:
Be fair to all opinions (view-point neutral).
Be specific, not overly broad (overbreadth doctrine).
TV and Radio Rules (FCC):
The Federal Communications Commission (FCC) sets speech rules for broadcasts:
No obscene content, ever.
No indecent or profane content from 6 AM to 10 PM (when kids might be watching).
Freedom of Relgion
Congress shall make no law “respecting an establishment of religion” (the establishment clause) “or prohibiting the free exercise thereof” (the free exercise clause)
Free Excercise Clause and Establishment Clause
Establishment Clause
Government cannot prefer/ favor one religion over another or endorse generally
Free Exercise Clause
Government generally cannot limit your ability to practice your religion
Commerical Speech
Speech written on behalf of the corporation with the goal of earning a profit ex: false advertisement
Freedom of speech protects corporations and individuals
i. Essential to the public’s right to know/the right to be informed
ii. Protects the listener and the speaker
*not as protected compared to individual rights
-Government can limit commercial speech if a compelling state interest is at stake
Freedom of Press
The press is accountable for what is printed
- Construed to prohibit prior restrictions on publications
Libel is used to recover damages as a result of printed defamation of character
Eminent Domain
“Nor shall private property be taken for public use, without just compensation.”
Questions:
i What is a taking? Government builds a public road
ii. What is a public use? Public purpose
iii. What is just compensation? Government must compensate and pay market value for your property
Case Notes: Kelo vs. City of New London Connecticut; City approved plan for private development of a research facility. City initialed condemnation proceeding for the portion of the land that couldn’t be purchased.
Rule of Capture - subsurface rights
If it flows naturally, a person has rights over it. A person cannot use machinery to manipulate the resource and change it to another’s side. Can use it only to touch my side not another person’s property
Air Rights
Owner of real property possesses the air above the land to a certain extent
Can be sold to another for development. What does this mean?
For cell towers, for development; purchase someone air rights to not block a person view in a Highrise
Zoning
Zoning laws say how land in an area can be used:
- Residential: For homes.
- Commercial: For businesses.
- Industrial: For factories.
Zoning decides:
- kind of buildings can be built (homes, shops, factories).
-How big and tall buildings can be.
-look of buildings (like color or design).
Ex: You can’t build a factory in a neighborhood meant for homes.
A variance is special permission to use land differently than the zoning rules allow.
Example: Building a small shop in a neighborhood where only houses are usually allowed.
Bailments
Goods placed into another’s possession to be returned in the future.
- Bailor= owner
-Bailee= possessor of the object
Key Question: Did the bailee intend to take possession of the object?
Types of Bailments
1. For the sole benefit of the bailor
a. Slight duty of care.
b. Ex: Storing my car at the friends while I am on vacation
- Mutually beneficial.
a. Reasonable duty of care.
b. Ex: Renting a car - For the sole benefit of the bailee
a. High duty of care.
Ex: Borrowing a lawnmower
Type of Deeds
Warranty Deed:
i. promises the grantee that the grantor has good ownership and the full power to convey it.
ii. Buyer can sue the seller if someone else claims the land.
Special/Limited Warranty Deed:
i. Limits the liability of the grantor/seller
ii. Does not hold the grantor liable for what happened prior to his or her ownership
1. No guarantee against title defects dating from previous owners
iii. Current GA Real Estate Contracts call for a Limited Warranty Deed
Quitclaim Deed:
i. Makes no guarantees other than that the grantor surrenders all claim against the land.
when an offeror’s revocation is effective
Must be prior to accpetance
When is the offeree’s acceptance effective
Mailbox Rule
when the person accepting an offer sends their acceptance (like by mailing a letter), it becomes legally binding at that moment
Undue Infleunce
When one is taken advantage of unfairly by a party who misuses a position of relationship or legal confidence
Ex: Often arise when persons weakened by age or illness are persuaded to enter into a disadvantageous contract. People in a special relationship of power or trust may also exert undue influence
c. Remedy: Contract is voidable
Duress
Action that compels another to do what he or she would not otherwise do
Duress means force or threat of force
i. Threat can be physical or economic
Contracts with Minors
Minors cannot be bound and a contract is voidable at the minor options
Exception: Contracts for necessaries (ig food, clothes, shelter, medical care)
