Law Midterm 1 Flashcards
Law
body of rules of action/conduct prescribed by a controlling authority with binding legal force that must be obeyed by individuals, bus., and other org. w/in a society
Sources of law in U.S.
- U.S. Constitution (Supremacy Clause)
- State Constitutions
- Federal and State statutes
- Ordinances
- Administrative agency rules and regulations
- Executive orders
- Judicial decisions by state and federal courts
- Treaties
U.S. law is also FLEXIBLE - changes over time as society norms, tech. and commerce grows and expands in U.S. and world
English common law
law developed by judges you issued their opinions when deciding a case - when Am. colonies first settled, Am. judges used prior English case decision as a precedent for American law
- -common law applies today where not replaced by statute
- –collection of law that we started with when we broke off from England
- —Gather all previous court decisions that have been made and put together
- law courts
- chancery (equity courts)
- merchant courts
Constitutions
U.S. constitution is the supreme law of the land - SUPREMACY CLAUSE
- -any law that conflicts is unconstitutional and unenforceable
- -“living document”
legislative = power to make (enact) law executive = power to enforce law (executive orders) judicial = power to interpret and determine validity of law --judicial = case law
codified law
statutes
- –Federal, state, and local (ordinances)
- –written laws enacted by legislative branch of fed and state gov. that establishes certain courses of conduct that covered parties must adhere to
- -Congress empowered by constitution to enact statutes
- -formed in CODE BOOKS = codified law
in criminal law = statutes are the primary source
statute of limitations: req. injured person to bring action based on date of injury
statute of repose: req. injured person to bring action based on date product was sold
stare decisis
similar cases should be decided consistently
–binding v. persuasive authority
==binding v. persuasive authority
–cases of first impression - public policy (Supreme Court)
ex. “no hitting” law under 2 diff. situations
principle that a decision today should be consistent with decisions that have already been made in the past by other courts
- –vertical – so if I’m in Utah…I don’t have to follow decisions that have been made by court of Idaho
- –but DO have to follow decisions by US federal court, Utah court of appeals, etc.
Administrative law
come from state and Fed agencies, security and exchange commission
—When legislative body creates them…gives us a set of laws that we are held accountable too
case law
comes from judges making decisions over time
- –Judges decisions in past become precedent for future decisions - be consistent with previous decisions that have been made
- –Ex. in class - Utopia and the no-hitting statute
- –Right of privacy not stated in Constitution - based off cases
Types of Judicial Decisions
—Unanimous decisions
—Majority decision - if at least 5 of the courts agree
—Plurality opinions - 5 of the judges believe who should win, but don’t agree on WHY
Know the rule of 4 in Supreme Court - in order to hear your case, at least 4 of the 9 justices must agree that it is worthy of being heard
Civil v. criminal
Parties are different
—-Criminal = government against defendant, civil = private parties
Purpose is different
—Criminal law = looking for punishment, civil = looking for compensation to the injured party - $
Standard of proof is different
—Criminal case = must prove beyond a reasonable doubt, civil = must prove by preponderance of evidence (more likely than not, or greater than 50%) - tipping scales just enough in your favor
civil
- -specific jury vote (9 of 12)
- -criminal - need unanimous
Ch. 2 - in order to go to federal court under CLAIM OF DIVERSITY OF CITIZENSHIP 2 things must occur:
- Cases btwn citizens of diff. states or btwn a citizen of state and a citizen of a foreign country - bring them across state lines
- controversy must exceed $75,000 for the federal court to hear the case
6 types of cases that MUST go to federal courts - only these 6 are EXCLUSIVE JURISDICTION
–HAVE to go to federal court and cannot do other courts
Constitutional questions are NOT one of them - not exclusive to federal courts
- admiralty law - least IMP.
- antitrust - MOST IMP. - also called competition laws - statues created by gov. to stop unfair competition in businesses practices - make sure monopolies don’t exist!!
- bankruptcy
- federal crimes
- patents and trademarks
- cases against the U.S. gov.
marijuana ex. from slides - not under exclusive jurisdiction so can go to the state courts
federal jurisdiction vs. state
federal jurisdiction - only 2 types
- –federal question OR
- –diversity jurisdiction - diff. state and ABOVE $75k
exclusive vs. concurrent
—ONLY in federal courts or state courts - otherwise cases can start in either system - EVEN constitutional cases
things that are exclusive to state courts
–family law, divorce, custody, probate (will, testament)
state court judges are orig. appointed and later elected
–federal judges are appointed for LIFE
full faith and credit clause
if one state court rules in your favor…and maybe the property is in another state - you can go to another state and bring how the orig. state rules - even if the other states policy doesn’t follow that - the second state must honor it
a judgment in one court of one state must be given “full faith and credit” by courts of another state
standing to sue
are these the right parties?
—can’t file in someone else’s behalf - if you don’t have a stake in the outcome (Even if it is your brother in law that was wronged) - your brother in law needs to be the one to file
standing to sue - having a stake in the outcome of a lawsuit
is this a real controversy?
- –court doesn’t give advisory opinions -can’t give legal opinions…go get advice from attorneys
- -court doesn’t answer your hypotheticals
personal jurisdiction (in personam)
property jurisdiction
venue
in personam - jurisdiction over the parties to a lawsuit
due process - fair treatment through the judicial system
property jurisdiction
- -in rem
- -quasi in rem - if you get a judgment in one state…you can bring that ruling to a property in another state and they have to honor it
Venue - where it is most convenient - where are the witnesses? Where is evidence? - will never lose case bc of lack of venue
Forum selection and choice of law provisions - you can choose where the case will be filed
long-arm statute – extends a state’s jurisdiction to nonresidents who were not served a summons within the state — court grabs a resident in Idaho and makes them come to Utah court
—if car accident (torts) committed in that state, they have a contract in that state, or have done business in that state that injured ppl there
state court systems
- limited jurisdiction trial courts (inferior trial courts)
hear specialized or limited issues
○ Ex. Traffic courts, juvenile, justice of the peace, probate, family law courts, misdemeanor criminal law
○ Trial courts - use evidence and testimonies - general jurisdiction trial courts (courts of record)
- –cases outside jurisdiction of limited courts - felonies or civil cases of large dollar amts.
- -usually divided into criminal and civil cases - intermediate appellate courts
- -hear appeals from trial courts - try to reverse trial court’s decision - highest state court - state supreme court
- -hear appeals from intermediate appellate courts and trial courts
federal court system
the U.S. supreme court
–special federal courts of limited jurisdiction - tax court, federal claims (claims against US Gov.), court of international trade, bankruptcy, appeals for armed forces and veterans
U.S. district courts - trial courts with general jurisdiction
U.S. court of appeals - federal court system’s intermediate appallate courts
highest court in the land is the U.S. supreme court in D.C.
- -the PRESIDENT appoints one justice as JUSTICE OF SUPREME COURT
- –the supreme court is an appellate court - hears appeals from federal courts of appeals, federal district courts, highest state courts, and special federal courts
4 decisions of U.S. Supreme court
each justice of supreme court including chief justice has an equal vote
- unanimous decision
- -if all judges agree
- -unanimous decision becomes precedent for later cases - all 9 agree - majority decision
- -5, 6, 7, or 8 justices vote for the SAME outcome for the SAME reason
- -becomes precedent for later cases and has the same force of law as a unanimous decision - PLURALITY decision
- -majority of justices agree on the outcome but NOT FOR THE REASON
- -settles the case but is not precedent for later cases - Tie decision
- –if a justice is sick and doesn’t make it to the case so there is only 8 and it ends in a tie
concurring opinion — justice who agrees on the outcome of a case but not the reason sets forth reasons for deciding the case
dissenting opinion - who does not agree with a decision - puts forth opinion
federal question
diversity of citizenship
federal question - cases arising under U.S. constitution, treaties, and federal statutes and regulations - no dollar amt. limit for federal question cases that can be brought to federal court
–any issue with federal law or statues - lets you go to federal court but DOES NOT require you to
diversity of citizenship
- -cases btwn citizens of diff. states or btwn citizen of state and citizen of foreign country
- –be greater than $75,000 for federal court to hear the case
states have concurrent jurisdiction with federal courts to hear cases involving diversity of citizenship or federal questions over which fed. courts do not have exclusive jurisdiction
rule of 4 in supreme court
in order to hear your case, at least 4 of the 9 justices must agree that it is worthy of being heard
civil v. criminal
parties are diff.
- –criminal = gov. against defendant
- -civil = private parties
purpose is diff.
- –criminal = looking for punishment
- –civil = looking for compensation to injured party $
standard of proof is diff.
- -criminal = must prove beyond a reasonable doubt
- -civil = must prove by preponderance of evidence (more likely than not or greater than 50%) - tipping scales just enough in your favor
personal jurisdiction - review note
have to prove - is it fair for court to require this defendant to show up and defend this case
Resident - yes fair bc they are close and live there - no burden to travel there
Non-Resident - whether it is fair or not, court applies the sufficient minimum contacts test
o If defendant in Texas is trying to sue someone in Utah - have to assure court that the defendant has sufficient minimum contacts test for court to rule that they should come to Texas to defend themselves
o Can ALWAYS go to where the defendant is to sue them - could always go sue the guy in Utah
o If they do business here, if the injury was inflicted in Texas - then helps prove to court that they have met sufficient min. contacts test
Property
o Doesn’t matter where the property is, if the property is there, then go to that court
original v. appellate jurisdiction
Original jurisdiction - for fact finding - judge is trying to put people on stand, cross-question them and find the facts
Appellate - to try to prove that there were mistakes - go back and possibly change who the winner was - looking for previous mistakes
court systems - review notes
- Small claims court
- Mental health court
- Trial court - courts of general jurisdiction - where most cases start
- Usually an intermediate appellate level - loser gets one chance to appeal - in Utah level it is the Utah court of appeals
- Supreme courts at state and federal level
pretrial litigation has 4 phases
- pleadings - paperwork filed with the court
- –complaint - document a plaintiff sends – court issues summons in response
- –answer - defendant answer’s plaintiff’s complaint - admits or denies complaint – can also make affirmative defenses (against plaintiff)
- -cross complaint - if defendant believes he was injured by plaintiff can file cross-complaint t
- -reply - new defendant’s response
statute of limitations - establishes period during which plaintiff must bring lawsuit against defendant
- discovery - fact finding
- –deposition - oral testimony given by parties pre trial - witness udner a subpoena - recorded at attorney’s office
- -interrogatories - written detailed questions by each party
- -production of documents
- -physical/mental exam - pretrial motions
- –motion for judgment on the pleadings - if all facts in pleadings are taken true, party making motion should win the lawsuit when the proper law is applied
- -motion for summary judgment - if there are no factual disputions to be decided by jury and judge then should decide case w/o judge - settlement conference - pretrial hearing to facilitate settlement of case
- –95% OF CASES ARE SETTLED BEFORE GO TO TRIAL
Trial process
- jury selected by VOIR DIRE — asks juries question - 12 ppl
- opening stmts - both parties attornies
- Plaintiff’s case
- -burden of proof - plaintiff to persuade jury
- -direct examination - plaintiff’s attorney asks their witness questions
- -cross exam - defendent’s attorney asks witness questions - defendants case - rebut evidence and call new witnesses
- rebuttal - plaintiff’s attorney makes case
- –rejoinder - defendant’s attorney calls witnesses - closing arguments
- jury instructions - judge gives info. to jury and then they deliberate
- entry of judgment
- -trial record - written memorandum explains jury decisions
justdment notwithstanding the verdict
ADR
alternative dispute resolution - resolving disuptes w/o litigation - avoid judge
- negotiation — parties meet and engage in questions to reach voluntary settlement – settlement agreement
- arbitration - MOST COMMON - parties choose an impartial third party to hear and decide disupute
- -arbitrator - impartial third party
- -many comp. have arbitration clause that req. disputes arising out of contract to be submitted to arbitration
- -binding arbitration - when parties see arbitrator, pay fee and must honor the decision when made
enumerated powers
supremacy clause
preemptive doctrine
certain powers delegated to the fed. gov. in US
supremacy clause
–clause of U.S. constitution that establishes the US constitution, statutes, treaties, laws as the supreme law of the land
preemptive doctrine
–doctrine that provides federal law takes precedence over state or local law
commerce clause
clause of US constitution that grants congress the power to regulate commerce with foreign nations and among the several states and with Indian tribes
—where most of our business law comes from!!!!
1st amendment
Speech
1. Fully Protected - speech that cannot be prohibited or regulated by the gov. - political speech
- Limited Protection - gov. may not prohibit but it is subject to time, place and manner restrictions
- —commercial speech (where and how you can advertise and what you can say in your ads), offensive speech (on TV when children could be watching)
- –offensive speech - to members of society - FCC regulates offensive lang. on TV and radio - Unprotected speech
- –NOT protected under first amendment and may be forbidden by the gov. - the gov. is allowed to ban those categories of speech (means they can criminalize it)
freedom of religion
Establishment Clause - can’t be any gov. sponsored religion (no church of England in US - Constitution prohibits it)
—clause of 1st amend. that prohibits gov. from establishing a state religion or promoting one religion over another
Free Exercise Clause - gov. cannot prohibit citizens from exercising religious beliefs
equal protection clause
under 14th amend - state can’t deny any person under its jurisdiction the equal protection of the laws
standards of constitutional review
- strict scrutiny test
- –HIGHEST BAR gov. has to overcome
- -test applied to determine the constitutionality of classifications by gov. that are son a suspect class (race) or a fundmanental right (voting rights)
- -gov. must have COMPELLING INTEREST for passing the law - almost nothing survives strict scrutiny
- -ex. race, citizenship - gov. must have compelling reason to treat ppl diff. bc of race in order for unequal treatment to be lawful - intermediate scrutiny
- –test applied based on a protected class other than suspect class and fundamental rights — gender for ex. - gov. must have IMPORTANT interest in passing laws to treat diff. based on gender - rational basis test
- -easiest hurdle for gov. to pass -
- -straight faced bar - have to stand in front of court and say with straight face and it can be approved - almost everything passes this bar - permits gov. regulation of business
suspect classes - strict scrutiny
protected classes - intermediate scrutiny
due process
clause that provides that no person shall be deprived of life liberty or property without due process of the law
- substantive due process
- -category of due process that req. gov. statutes, ordinances, regulations or other laws to be clear on their face and not overly broad
- –have to KNOW what behaviors should be prohibited - laws should be explicit and I should understand what the law is saying
- –ex. school passes law that prohibits students from wearing clothing of the opp. gender and student is suspended for it - procedural due process
- -category of due process that req. the gov. give a person proper notice and hearing of the legal action before that person is deprived of life, liberty, pursuit
- -you have to be heard before they can throw you in jail
takings clause
just compensation clause
takings - clause that allows gov. to take property for public use
just compensation clause - clause req. gov. to compensate a property owner when gov. takes their property
criminal law
- -presumed innocent until proven guilty in US
- -burden of proof - in criminal trial is on the gov. to prove the accused is guilty of crime charged
- –accused must be found guilty beyond a reasonable doubt
- -conviction req. a unanimous jury vote
types of crimes
- felonies
- –will get you to prison
- -most serious of crimes - inherently evil
- -most crimes against persons (murder, rape) and certain business crimes (embezzlement, bribery) - misdemeanors
- -will get you to jail
- -property crimes - robbery, burglary - infractions / violations
- -not going to jail - traffic violations
two elements to be found guilty of an intent crime
- criminal act
- -defendant performed the act - actus reus - criminal intent
- -specific or general where knew this was a crime
nonintent
–due to being reckless or negligent
corporate criminal liability
Responsible Corporate Officer Doctrine
when a corp. agent commits crimes, we can charge the entity with the crime based on the actions of the agents
• Arthur Anderson crime based on the crimes of its agents
responsible corp. office doctrine
—Negligent supervision - rather than charging the entity – if you are a corp. officer and ppl you supervise commit crimes and you should have known about it and been responsible - can charge the supervisor for the crime!
hung jury - the jury can’t come to a unanimous decision
burglary
robbery
theft
larceny
burglary
–enter someone else’s home/area with intention to do harm
Robbery
—mugging - deprive you of your belongings with a force or fear
Theft
—pickpocket - take personal property but you may not know it is gone
larceny
- -taking of another’s personal property other than from his or her person/building
- -stealing a car or radio from car
embezzlement
extortion
criminal fraud
money laundering
Embezzlement - don’t have to lie to you to get your money - you give it to me voluntarily bc it is part of my job responsibility
—Ex. I am in charge of your funds, but I use it for another purpose after you trusted me (accountant, banker, lawyer)
extortion
—threat to expose something about another person unless that person gives money/property - blackmail
criminal fraud
- -lie to you to get your money and then do something else with it
- –investing lies
money laundering
–takes money from drugs, prostitution, gambling and then put the dirty money somewhere else (investing, bank)
criminal process
- Arrest through Trial
- Arraignment sentencing (if plead guilty) if plead not guilty (pre-trial) then trial and judged by the jury who decides
- Guilty = you get sentenced
- Not guilty = let go case can’t be brought against you again bc of double jeopardy
indictment - charge of having committed a crime (felony) based on judgment of grand jury
information - charge of having committed a crime (misdeamenor) based on judgment of judge
arraignment
–hearing during which accused is brought before court and is informed of charges and asked to enter into a plea
exclusionary rule
evidence obtained from unreasonable search and seizure can’t be used against the defendant in court
court has a GOOD FAITH EXCEPTION
—where can use illegally obtained evidence if the police officers believed they were acting pursuant to a lawful search warrant (searching cel phones)
three types of torts
- intentional
- unintentional
- strict liability
shoplifting
almost all states have merchant protection statutes (shopkeeper’s privilege) - allow merchants to stop, detain and investigate suspected shoplifters w/o being held liable for false imprisonment if:
—There are reasonable grounds for suspicion, suspects are only detained for a reasonable time, investigations are conducted in a reasonable manner
Misappropriation of the right to publicity
an attempt by another person to appropriate a living person’s name or identity for commercial purposes
—Plaintiff can recover unauthorized profits made under name and prevent defendant from further unauthorized use of name/identity - ex. If advertising agent uses Taylor Swift on billboard to sell product and she never gave approval
Invasion of the right to privacy
unwarranted and undesired publicity of a private fact about a person (Whether true or untrue) - taking/posting pictures of a person w/o permission - reading emails/texts w/o permission
- Intrusion upon seclusion (hidden camera)
- Publication of private facts things that could be true, but are private and would offend the victim or others if it were to be disclosed
- False light - not coming out and lying about someone but you are leading us to believe something about someone that may or may not be true
- -told to public at LARGE!!! 10+ ppl
defamation
an intentional FALSE stmt. That injures my reputation
o Truth is a defense – if it is true it is not defamation
o Standard you have to meet - have to prove they knew it was false or if they didn’t know but the published it anyway (prove the publisher was negligent - they should have been able to discover that it was false)
Can be said by just ONE person!!!!
Disparagement or Trade Libel
lying about a company!! A competitor
–plaintiff only has to prove it was said to ONE PERSON
also UNTRUE
–have to prove stmt. was intrue, published to third party, prove defendant knew it wasn’t true, and stmt. was made to injure plaintiff
Intentional Infliction of Emotional Distress
o Usually an accompanying claim with something else
o Due to outrageous behavior it is the result of something else - assault, battery, robbery
tort of outrage
–annoyance and harassment doesn’t count - mental distress must be severe
Malicious Prosecution
abusing the legal process - someone brings a completely frivolous claim against you…you have the right to sue them for bringing ridiculous
elements of negligence - unintentional torts
- Duty of care!!! - duty to act - obligation not to injure
- —-reasonable person standard - test to determine if defendant acted like a normal person would
- —-reasonable prof. standard - measures against others of same expertise - brain surgeon - Breach the duty
- If breach causes both ACUAL CAUSE (but for test - but for the defendant’s act would the plaintiff have been injured?? - check the casual test) and PROXIMATE CAUSE (was the injury foreseeable – then cuts off the causation) - have to pass both tests or can’t determine causation
- Injury
special negligence doctrines • Negligence Per Se • Res Ipsa Loquitur • Gross Negligence • Attractive Nuisance Doctrine • Good Samaritan Laws -
Negligence Per Se
- –plaintiff does not need to establish duty of care bc an
- -ex. homeowner is responsible for sidewalks
Res Ipsa Loquitur - rule of evidence – in circumstances where this normally wouldn’t happen if the defendant hadn’t been negligent
–negligence occurs bc defendant was in exclusive control of situation and had superior knowledge - plaintiff would not have suffered had there not been negligence involves
Gross Negligence
- –liable for harm caused by willful misconduct or reckless behavior
- -running red light and hits car
Attractive Nuisance Doctrine
- –imposes liability on landowner to children who have been on landowner’s property by an attractive nuisance and are injured on property
- -ex. swimming pool, open pits - should have fence
Good Samaritan Laws - if doctor or medical expert hurts someone trying to protect them, they are protected for being sued for that
defenses against negligence
- superseding or intervening event
- –liable only for foreseeable events - assumption of risk - knowingly and voluntarily enters risky activity - signs document
- contributory negligence
- -plaintiff who is partially at fault for his/her own injury cannot recover against negligence defendant
- - Driver is speeding negligently and hits a jaywalking pedestrian and injures him –> driver is 80% responsible for injuries, but plaintiff is 20% responsible bc jaywalking and cannot sue driver - Comparative negligence - damages are apportioned according to fault
- –plaintiff pays for 20% and driver pays 80%
