module 1-foundation of law Flashcards
Statutes-Federal laws and Treaties
Areas of legislation theoretically limited. Must relate to Art. I § 8 enumerated power or be “necessary & proper” extension (e.g, interstate commerce).
Statutes-State law
• Almost any topic okay (health, welfare, safety & morals) but can’t conflict w/ valid Fed. Law or U.S./State Const.
• Lots of variation between States (e.g., criminal law) but some standardized areas (Uniform Commercial Code)
statutes-written law
Common law
Case law. Judge-made rules of law, derived from the facts of particular cases, as set forth in published decisions
Cases become “precedent” which can be “binding” (if from a higher-up Court) or merely “persuasive” (if from Court in different state, different Circuit, etc.
Civil Cases
• Parties: Usually private litigants (but sometimes gov’t too)
• Nature of the Claim: Br/K, common law torts, civil statutory violations, etc.
• Remedies: typically compensation; sometimes equity (injunction)
• Burden of Proof: Claimant must prove claim by a “preponderance of the
evidence”
Criminal Cases
Criminal cases:
• Parties: government (state or federal) prosecuting an individual (the
“defendant”), in the name of the public
• Nature of the Claim: violation of written criminal statute
• Remedies: prison and/or fine, death.
• Burden of Proof: prosecutor must prove all elements of guilt (i.e., criminal
act, criminal intent, causation, etc.) “beyond a reasonable doubt”
What does fed and state courts are independent mean
Federal & State Ct. systems are generally independent.
• Usually, no right to appeal to Federal Court after State court loss on state law.
Personal Jurisdiction
1) Personal Jurisdiction (PJ) - Power over the defendant or property involved in the suit.
• PJ exists over any person that resides in, and over property located in, its geographic territory.
• Note: Corps. are dual residents: State of (1) incorporation and (2) principal place of business.
• PJ also usually exists over any out-of-state D’s who (1) caused a tort in, or directed to, the forum State, (2) breaches contract formed, and sometimes even just part negotiated, in State, or (3) “Purposefully Avails” self of the forum state or its customers: i.e., advertises or sells its products in State, or places its goods in the “stream of commerce” with the intent that its goods be sold within the State.
Subject Matter Jurisdiction
Subject Matter Jurisdiction – power over the topic of the dispute.
• State Cts can hear most federal or state law claims (i.e., breach of K, negligence, fraud, defamation, etc) but Fed. courts will only hear cases involving: (1) a “Federal Question”, or (2) “Diversity of Citizenship”
• “Federal Question” = P’s “cause of action” is based on alleged violation of a right they have under the U.S. Constitution, a treaty, or a federal law or federal agency rule (i.e., 1st Amendment, Sherman Antitrust Act, etc.)
• “Diversity of Citizenship” = Disputes arising between citizens of two different states, or citizens of a state and citizen of foreign country. All Ps & Ds must be residents of different states and damages alleged must be at least $75K.
Where can you be Sued
• You can almost always be sued, for anything, where you reside, incorporate or have HQ. But you typically can’t be sued in places with which you have no connection. But intentional marketing & sales out-of-state can open you up to suits in those places, if that good/service/transaction causes harm.
Standing
• Standing (P must have a sufficient stake in the matter)
• E.g., Most recent challenge to ACA was dismissed by
SCOTUS (7-2) after finding that Texas and two individuals who
did not want to buy health insurance lacked standing to
complain that ACA was unconstitutional because IRS could no
longer impose penalty on them and Texas couldn’t show link
unenforceable mandate and decision of more citizens to enroll
in Medicaid after ACA.
Ripeness
• Ripeness (litigant’s interests are actually affected now)
Moot
not in controversy by trial time
Courts choice of law and choie of forum
- Courts will generally defer to parties’ choice of place to decide dispute.
- Courts will also generally defer to parties’ choice of law, if agreed in advance.
- New York – highly developed contract law
- Delaware – highly developed corporate law
- California – pro-consumer, pro-environment, more robust privacy and publicity laws, etc.
- But such choice clauses may be invalidated if (1) they operate to deprive party of their day in court (i.e., chosen law must actually provide some type of potential remedy), or (2) US court really wants to hear the case.
- If governing law not chosen in advance, court will:
- In contract cases, a court will generally apply the law of the state where the court sits.
- In tort cases, courts will generally examine which state has the most significant interest in the matter. Usually, this is the state in which the wrong occurred, and thus courts will commonly apply lex loci delicti (law of the place where the tort was committed)
Deciding whether to litigate or settle
- Factors to Consider:
- Costs of Suit
- Monetary Costs, Reputational Costs and publicity, Opportunity costs
- Magnitude of potential recovery / liability, including opponent’s ability to pay.
- Potential for counterclaims
- Likelihood of Success
- Collateral consequences
- Res judicata (matter already decided won’t be decided again)
- Damage to important relationships with key customers, suppliers, investors, etc.
- Cost of Inaction
- Loss of IP rights
- Appearance of being a weak target
Discovery
- Parties’ exchange of factual information in preparation for trial.
- Depositions – sworn testimony by party or witness recorded by an authorized court official – attorneys present
- Interrogatories – written questions to which written answers are prepared and signed under oath – only given to parties and not witnesses – attorneys present
- Request for Production of Documents – demand to opposing side for all relevant documents, emails, texts, VMs, etc.
- Expensive and invasive. Attorney-Client Privileged materials exempted.
- Requests for Admission or Examination – written requests to another party to (1) admit the truth of a matter related to trial, or (2) to allow the requesting party to examine the property/document at issue.
