Legal Law, Ethics, and Dispute Resolution: Key Concepts and Frameworks

Legal problem solving

problem, those affected, facts, rules, conclusion.n

Natural Law

humans possess natural rights that laws cannot limit (Declaration of Independence)

Constitutional law

federal and state constitutions - Constitution over everything

Confederation

weak federal government, strong state government

conflicts of laws

states can be more strict with criminal laws, but not more lenient.

Statutory Law

federal and state - the written laws formally enacted by a legislative body, such as the U.S. Congress, a state legislature, or a city council.

Ordinances

is a law or regulation enacted by a local government body

Business statutes

LLC, labor laws, trade secrets, etc.

Administrative law\\

administrative regulations and decisions

Executive order

Rules made by the top person in the executive branch of the government have the "power of law" but can be made invalid.

Common law

We are a common law country, and "judge-made law" is based on decisions made by judges

What is a precedent?

Supreme Court (and higher courts) decisions are precedents in every court in the USA - they do not travel sideways.

Stare decisis

deciding new cases with reference to former decisions, or precedents

Criminal Law

deals with wrongs against society for which society demands redress.

Civil law

Deals with private or public wrongs or rights between people (divorce)

Substantive law

WHAT defines rights and duties

Procedural law

HOW - is the body of law that sets forth the rules and procedures used to carry out, apply, and enforce the substantive law, primarily within a judicial system.

UN Declaration of Human Rights Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood

UN Declaration of Human Rights Article 8:

If your core rights are ignored or violatedyou have the absolute right to go to an official court and get a fix (a remedy) by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law

UN Declaration of Human Rights Article 10:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him

Natural law

complicated, based on religion or ethics,

Iowa Supreme Court

Iowa Ct. of Appeals, District Court for Counties

Jurisdiction

authority to speak the law

General jurisdiction

most state and federal trial courts

Limited jurisdiction

specialty courts - bankruptcy, small claims, tax, etc.

The USSC reviews cases from

U.S. District Courts, U.S. Courts of Appeals, Highest Courts of the States

Long arm statutes

laws used by state courts to get jurisdiction over out-of-state defendants - like if your app can be used in many states, you can be sued in those states

Venue

county or division of trial that is fair, because the place where it happened could be biased bc of the press

Appellate cases

legal proceeding in which a party asks a higher court to review a decision brought on appeal from the trial court - can affirm, modify, reverse, and remand the decision of the lower court through votes - Just about everything can land you in state court.

Iowa court of appeals

intermediate appellate court - criminal and family law cases

Federal question cases

claim based on the U.S. Constitution, federal statute, or federal treaty

Diversity of citizenship cases

when the plaintiff and defendant are citizens of 2 different states, and $70,000+

Starting a memo:

Know your audience, address it properly, restate the question, use suitable language, and make it concise

IRAC (memo writing method)

Issue, rule, analysis, conclusion

Class action lawsuits

Useful where there is a large number of plaintiffs suffering similar problem.

pre trial Discovery factors

preserve evidence, limit the element of surprise, narrow issues for trial, and impeach witnesses at trial - interrogatories, depositions, and written discovery

Written discovery

Requests for admissions, request for the production of documents

Deposition

questions under oath to preserve testimony for trial and get more facts

Choosing the Jury

not always required, voir dire (drafting the people you don't want), challenge for cause, peremptory challenges

Direct and cross examination

after you're done with your first witness, you move to the next. Defendant presents evidence and witnesses, plaintiff sometimes offers rebuttal, and then you close.

Mediator

neutral 3rd party

Benefits of mediation

helps find hidden issues, higher settlement rates, seems more just, can't order you to reach an agreement- it's appropriate when parties want to preserve the relationship, it's confidential, when there are concerns about future litigation, no party is a clear winner.

ADR or Alternative Dispute Resolution

is any procedure or method for resolving disputes outside the traditional judicial process

Hybrid ADR

someone will try to mediate, and if it fails, they become a judge or change roles

Abitration

Form of ADR - may be mutually agreed upon or mandatory if chosen in advance; many contracts have it. Benefits: binding, cheaper than litigation, efficient, private, and you can choose a highly qualified person.

Order of affairs

Mediation, then arbitration, then litigation

4 traditions we can see ethics through

standard of conduct, character, consequences, relationships

Consequences

the ends justify the means, close to utilitarianism

Standard of consequences

dont touch the lever because you will have blood on your hands

Character

focuses on the agent, you gotta walk the talk

Relationships

what do we owe eachother in a relational context?

CSR

Corporate social responsibility - the way through which a company achieves a balance of economic, environmental, and social imperatives - more responsible firms are less likely to be sued

ESG

(Environmental, social, governance) - It is a framework used to evaluate how a company operates based on ethical and sustainable criteria

Shareholder model

shareholders own stock in company, they have financial interest in the companies decisions

Shareholders

people affected by the company's actions

Foreign Corrupt Practices Act

made to respond to questionable payments to US companies to foreign governments - applies to US businesses doing business overseas.

Bribes/grease payment

this act makes a distinction between bribery and facilitation or grease payments

Necessary and proper clause

Congress has the power to make all laws which shall be necessary for carrying into execution the foregoing powers

3/5 compromise

counted enslaved people as ⅗ of a person, changed by 14th amendment

Constitution Section 8

the congress shall have power to lay and collect taxes

14th amendment

Equal Protection - requires that "similarly-situated" people be treated fairly

Constitution Article 2

Establishes the executive branch, and the office of the President and vice president

Constitution Article 3

creates US Supreme court

Case or controversy must be justiciable

a person must have standing to sue, can sue only on your behalf generally

Equal Protection Standard of Review

the legal tests courts use to determine whether a government's classification or differentiation between groups of people, under the Equal Protection Clause of the Fourteenth Amendment

Strict Scrutiny

Laws that classify people based on race, national origin, or a fundamental right must be necessary to achieve a compelling government interest. This is the highest test, and such laws are rarely upheld.

Intermediate Scrutiny

Laws that classify people based on gender (sex) or illegitimacy must be substantially related to achieving an important government objective. This middle-tier test is less demanding than strict scrutiny but still strikes down many laws.

Rational Basis Review

All other laws, such as those classifying people by age, wealth, or economic status, must only be rationally related to a legitimate government interest. This is the lowest level of scrutiny, and most laws easily pass this test.

Mootness/Ripeness

Is your case ready

Judicial Review

a process by which courts decide on the constitutionality of legislative enactments and actions of the legislative brand

Separations of power

the executive branch carries out the law, the legislature makes laws, and the judicial system interprets laws

Constitution Article 4

Full faith and credit shall be given in each state to the public acts, records, judicial proceedings of every state

Constitution Article 5

how to amend the constitution - (propose amendment 2/3, then ratifying it 3/4) or ( 2/3 state request convention, then 3/4 vote of special state convention)

Federal preemption

a federal statute or regulation will take precedence over a conflicting state

The commerce clause

gives Congress the power to regulate business and trade that crosses state lines (interstate commerce) - dormant commerce clause means that congress has exclusive right to regulate interstate commerce not the state

Bill of rights are from

federal government

First amendment

freedom of religion:

Free Exercise

Government can't stop you from following your religion, permits the state to prohibit saacramental peyote use (where it violates criminal law)

Establishment clause

prohibits government from making any law "respecting an establishment of religion"

Your freedom of speech rights are different in

a private place

Level of protection of freedom of speech high to low

political,, commercial, unprotected

Unprotected speech

fighting words, clear and present danger, obscene speech that offends morals

Restrictions on HOW you speak

Govt can place reasonable limitations on time, place and manner of speech

Employee speech

private employees have restrictions

Commercial speech

advertising is a protected speech but cant be misleading

Texas v Johnson

Just because people are offended does not justify prohibitions of speech

Citizens United v FEC

prohibits corporate money in elections

Procedural due process

notice of charges, right to respond, unbiased decision maker to decide

Substantive due process

laws that impact the Constitution have to be fair

Intermediate scrutiny

gender/legitimacy, important reason for law, need more than just rational basis

Fundamental rights

marriage, privacy, interstate travel, procreation, custody, voting

Rational basis

laws regulating economic or social matters

Administrative Procedures Act (APA)

dictates process to be followed depending on type of agency rule

Types of federal admin agencies

independent administrative agencies, executive administrative agencies

Substantive/legislative

rules have the same effect as laws passed by congress

Adjudicaiton

a hearing before a law judge, parties have counsel, but there is no jury, judge makes initial ruling on testimony and evidece

Subpeona

a writ ordering a person to attend a court.

Silent spring

book about pesticides

EPA Environmental Protection Agency

EPA is to monitor and analyze the environment, conduct research, and work closely with state and local governments to create pollution control policies

Clean air act

regulates air quality