Introduction Flashcards
standing to sue + who has it (3 rq)
sufficient stake in matter to justify seeking relief
Harm - must have suffered or face imminent harm
Causation - causal connection between conduct complained and injury
Remedy - it must be likely that a favorable court decision will remedy the injury suffered
statutory law
passed by legislature, incl local reg like land use
uniform laws
legal scholars and lawyers formed national conference of commissioners on uniform state laws to draft uniform laws, or model statutes – each state has option of adopting or rejecting or modifying
administrative law
rules, orders, decisions from administrative agencies
independent regulatory agency officers
officers serve fixed terms, cannot be removed without just cause
case law
body of judge-made law, doctrines and principles announced in cases
common law
body of general rules that applied throughout realm, legal precedent
courts of equity
formal chancery courts, supply remedies in equity (specific performance, injunction – party cease engaging in activity or undo, rescission – cancellation of a contractual obligation) when no adequate remedy at law is available, but not often these days
equitable maxim
- propositions or general statements of equitable rules
equitable doctrine o laches
“equity aids the vigilant, not those who rest on their rights”, can be used as defense
cannot demand a jury trial in
action in equity
basic steps of legal reasoning process
IRAC method – Issue - what are they key facts and issues, Rule - what rule of law applies to the case, Application - how does rule of law apply to the particular facts and circumstances of this case, Conclusion
secondary sources of law
books and articles that summarize and clarify the primary sources of law, used for guidance in interpreting and applying primary sources of law
restatements of the law
compilations of the common law published by the American Law Institute
schools of legal thought ()
natural law, positive/national law, historical school, legal realism, sociological
jurisprudence
the study of law, involves learning diff schools of legal thought and how the approaches to law characteristic of e school can affect judicial decision making
natural law
a universal law exists that applies to all people, should reflect principles inherent in natural law
Natural rights
positive/national law
law written for a given society at a given time; no natural rights
legal positivists believe there can be no higher law than a nations positive law, more likely defer to existing law
historical school
concentrates on origin and history of legal sys, what doctrines have withstood passage of time?
Followers more likely to strictly follow past decisions
legal realism
“law is just 1 o many institutions in society + that it - shaped by social forces and needs”, should take social and econ. Into account when deciding cases
“l. can never be applied w total uniformity”
Influenced growth of sociological school
More likely to depart from past decisions
sociological school
law - tool for promoting justice in society
types of law content (2)
substantive and procedural
reports or reporters def
written decisions of appellate courts published and distributed
types of opinions (6)
unanimous, majority, concurring, dissenting, plurality, per curiam
plurality opinion
the opinion has the support of the largest number of judges but the group in agreement is less than a majorit
per curiam opinion
anon
enumerated power
expressed power
implied power
power to carry out enumerated power
police powers
ability of a government to enact laws to coerce its citizenry for the public good
privileges and immunities clause
prevents states from imposing measureable burdens on citizens of another state unless there is substantial reason
activities incl transferring property, seeking employment, accessing court system
full faith and credit clause
[t] shall be gien in e state to the public acts, records andjudicial proceedings o e other state
only civil
ex. deeds, wills, contracts
commerce clause
National gov reg interstate commerce so states X est laws and regulations that would interfere w/ trade and commerce in other states
dormant/implied commerce clause
states X have authority to regulate interstate commerce
congress has power over $ for _____
defense and welfare of US
freedom of speech incl (3)
symbolic, corporate political, commerical
freedom of speech regualtion scrutiny
Laws that reg time/manner/place, X content receive less scrutiny
Reg conent must serve compelling state interest + be narrowly written -> compelling gov interest test
commercial speech restrictions
Communications by business firms must be for commercial interests and not against state interests
Restriction - valid if seeks to implement gov interest, directly advances it, and doesn’t o further than necessary
unprotected speech
Defamatory, violence-inciting, obscene, threatening
establishment v free exercise clause
- Gov x est state religion or show preference
- People ca choose any religion
Restrictions must be necessary, not substantial burden to change belief, public welfare exception
What est judicial review?
marbury v madison
basic judicial rq (3)
jurisdiction, venue, standing to sue
in personam jurisdiction
personal jurisdiction over geographic area
in rem juris
jurisidction over property located within its boundries
long arm statute
court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state
- Defendant must have had minimum contacts with the state to justify the jurisdiction
- Defendant must have sufficient connection to the state
- Corp. contacts - subject to personal jurisdiction in the state in which it is incorporated
- Large corp in states where it does such substantial business is “at home” in that state
jurisdiction of fed courts (4 ways)
fed Q -> fed law
diversity of citizenship
corp citizen in 1+ state
state court cases
(juris) diversity of citizenship rq (2) + law application
plaintiff and defendant must be residents of diff states;
Dollar amount in controversy must exceed 75000
Fed court will apply relevant state law (law of statte in which court sits)
exclusive v concurrent juris
Concurrent juris - both fed and state courts have power to hear case; Party can choose which
Exclusive juris - when case can only be tried in federal or state
sliding scale standard, international?
identified 3 type of internet busi contacts and outline3 rules: when defendant conducts substantial busi over internet, juris ok; when there is some interactivity through a website, juris ok sometimes; when defendant merely engages in passive advertising on web, jurisdiction never proper
International - Business has to comply with laws in any juris in which it target customers for its products
venue + when can change?
most appropriate location for a trial
fair and impartial jury necessity
venue - civil and criminal
Civil: where defendant resides/does business vs criminal: where crime occurred
Federal court sys - how did judge get job
appointed by president of the US, subject to confirmation by the US senate, lifetime appointments, removed by impeachment proceedings
magistrate judges
Junior fed officers conduct diff judicial proceedings to reduce delays
Selected by federal district court judges based on recommendations of a merit screening committee (attorneys, admin law judges, state court judges, other applicants), serve 8 years
writ of certiorari
an order issued by SC to lower court to send record of case for review
rule of 4
s.court will issue writ o cert. if 4/9 approve
alternative dispute resolution types (3 + 4 minor types)
negotiation, mediation, arbitration
Early neutral case eval, mini-trial, summary jury trials, summary proceedings w use of special masters
mediation
Neutral 3rd party = mediator and works with both sides to facilitate a resolution, usually charges fee, but not necessarily lawyer
Talks with oth parties separately and jiontly, emphasizes points of agreement, and eval options, propose solutions
Less adversarial, tends to reduce antagonism between disputants
arbitrator, award, when can it be appealed/set aside?
arbitrator decision an award
can be appealed, but courts review of decision will be more restricted than appellate of trial court b/c parties - free to frame issues and set powers of arbitrator
Will be set aside if court finds: conduct/bad faith prejudiced rights of one of the parties, award violated est public policy, arbi exceeded their powers b/c arbi issues that parties didn’t agree to
pro se representation
parties rep themselves in court
3 types of attorney fees
fixed fees - charged for service, like drafting will
hourly fees - indeterminate period of time
contingency fees - % of client’s recovery
pretrial procedures
filing of the pleadings
gathering of evidence or discovery
parts of the pleadings
complaint - pleading made by plain* alleging wrongdoing on part o def*, initiates lawsuit, states juris, legal theory, remedy
answer - defendant’s response
service of the process
formally notifying defendant of a lawsuit with a copy of the complaint and a summons
□ Summons = notice req/ the defendant to appear in court and answer the complaint, must be answered in a specified time period or suffer default judgement v him
Default judgement
= plain* - awrded damages alleged
(pleadings) answer, 2 types
admits/denies e allegation + set forth defenses
affirmative defense - admit truth but raise new facts to show X liable
Counterclaim: Claim made by def* in civil that sues plaintiff, plain* needs to submit answer to counterclaim
motion, 3 types
procedural request submitted to court by att* on behalf of client, must provide def w/ notice of motion informing def* that motion has been filed
dismiss, for judgement, for summary judgement
(motions) dismiss (4)
dismiss case f reasons stated if claim X have remedy that can be granted, X properly served, X juris, venue improper
motion f judgement on pleadings, granted if
asks court to decide issue on pleadings w/o trial, granted if no dispute over facts and sole issue is question o law
motion f summary judgement
Asks court for judgement wo trial, before or during trial
p* filing motion can submit eidence obtained b4 trial to refute factual clai
affidavits
sworn statements by parties/witnesses; copies of docs obt during discovery; only evid that would be allowed at trial
de novo review
reviews issue as if lower court X rule on issue, used if decision appealed
3 rules of discovery
Allowed if relevant to claim or defense o either
Protection o witnesses fr undue harrassment
Prevent priv or confidential mat fr/ disclosure
depositions
Sworn testimony by party to lawsuit or by any witnessesrec by authorized court official
Answers both sides
Can be used to impeach (challenge credibility of) * at trial if change testimony
Can be used at trial if testimony not avail
Interrogatories
Written Q for which written answers - prep and signed under oath
Usu 30 days to prep answers
Obligated to answer Q
Requests for admissions
Any fact admitted under req - est true f trial
Requests for exams
Phys or mental condition
Opposing party can get results
Spoilation of evidence
doc or info req for discovery - destoryed/altered sig
voir dire
bias/connection in jury selection
trial procedures
opening statement, rules of evidence, exam o witness and potential motions
rules of evidence
evidence that proves or disproves a dact in Q or rest degree of probability of fact/action
examinaiton of witnesses (4)
direct questioning by plaintiff first, cross-examination, redirect examination, recross examination
posttrial motions (2)
motion for new trial - jury in error, judgement X appropriate, new evidence, misconduct, /error by judge
MOTION FOR JUDGEMENT NOV
if verdicy - unreasonable + erroneous
appellate review (4 results)
affirm, reverse, remand, reverse in part
petition
losing party right to ask higher court to review case
writ of execution
requesting court assistance in collection
