legal 2700 exam 1

original framework, year and contents

1. preamble

2. articles 1-7

3. seperation of powers

4. estab;ishment of federalism

5. establishment of procedure for ratification

bill of rights amendments

1. 1-3 safeguards of liberty

2. 4-8 safeguards of justice

3. 9-10 reserved powers

amendments to know

1, 6, 7, 10, 14

seperation of powers

articles I-III establish legislative, excecutive, and judicial branches

holds them independent of eachother

each serve as a check on one another

often called article III courts

checks and balances functions

veto and override

judicial review

pres appointed positions w/ sentate approval

impeachmenta

congress controlling money

federalism

power is divided between central (federal) and regional (state) governments

vertical seperation between state and federal government

supremacy clause

constitution is the supreme law of the land

preemption

constitution is superior to all

federal over state law

state law is invald if conflicts with federal law (environmental example)

commerce clause

congress has the power to refulate commerce with foreign nations and among the states

what can the commerce clause regulateint

instrumentalities of commerce

channels of commerce

activities that substantially affect commerce

interstate commerce

between statesint

intrastate commerce

inside a singular state

only when it substantially affects inTERstate commerce

dormant commerce clause

state law that does not unduly burden interstate commerce is permitted

implicit in commerce clause

no explicit federal regulation

federal preemption

state commerce laws cannot conflict with federal commerce clause

if some federal commerce regulation

dual regulation from federal and state govt

first amendment freedoms

speech

religion

press

incorporation doctrine

bill of rights is applicable to the states through the Due Process Clause

freedom of religion

congress shall make no law prohibiting practice of religion

establishment clause

government cannot prefer one religion over another and cant endorse a religion

free excersise clause

govt can limit ability to practice religion

freedom of speech

no law abridging free speech

protects written, oral, and visial communications, and symbolic speech

symbolic speech

flag buring (not allowed)

wearing armbands (allowed)

limitations to freedom of speech

• incitement to violence

  • speech intended to provoke violence

• fighting words

  • face-to-face communication provoking violence immediatley

• defamation/slander/libel

  • false statements intended to harm reputation

    • slander = spoken

    • libel = literary

• obscenity

  • obscene if contemporary standards deep material too sexual

community standards test

to test is material is obscenity or not

freedom of speech in corporations

govt can only regulate corp. speech if a compelling state interest is at stake

freedom of the press

no law abridging the freedom of the press

no restraints on publications before theyre published

NYT v US case study

14th amendment

cannot deprive person of life, liberty or property without due process of law or deny anyone equal protection of the laws

due process clause

prevents govt bodies acting in an unreasonable manner, required to fundamental fairness and decency

must follow the “due process” of the law, no rash decisions

substantive due process

government must have justifications for its actions

procedural due process

need proper notice and procedue

chance to appeal and challenge

equal protection clause

14th amendment

law shouldn’t treat people differently without goooood reason

but they do

minimuim rationality

haight, age, weight, marital status

not really related to legit govt interests

easy to pass

quasi strict scrutiny

gender, legitimacy

harder to prove than MR

substantially relatied to govt interest to be allowed to discriminate

strict scrutiny

race, nationality, ethnicity, national origin

hardest to obtain, laws usually struck down

has to be narrowly tailored and have complelling govt interest

plaintiff and defendant

plaintiff = files suit

defendant = party sued/case brought against

counter claim

defendent sues plaintiff

in a counterclaim what does plaintiff and defendant become

plaintiff —> counterdefendant

defendant —> counterplaintiff

3rd party defendants

party liable to the defendant

litigation

process of legal action; filing a lawsuit

standing-to-sue

case or sontrovery, is it an actual issue?plaintiff has to show interest in the suit

2 things plaintiff must have to bring a case

• have standing

• have personal stake

personal stake

directly involves them, had harm or wrongdoing to them directly

without standing

courts faced with legal questions that should not be in court

personal jurisdiction

power over the parties

• when plaintiff files suit

• when defendent gets summons

service of process

delivery of the notice of the lawsuit

long arm statutes

allows state courts to obtain jurisdiction in civil actions and pull the defendant into the state

• do not authorize oos service of process

purposfully availed, 3 things

1. property

2. wongdoing

3. business

3 things to get a case into court

1. SMJ

2. PJ

3. standing - plaintiff

class action lawsuits

allows a plaintiff to file a lawsuit on behalf of a larger group of people who have experienced harm

commonality in class action suits

facts common to each plaintiff and the entire case, must be related

benefits of class action

• efficient

• lower litigation costs

• large amount of plaintiffs

draw-backs of class actions

• plaintiffs lack decision making

• can settle for less than expected

• can hurt legit claims

attorneys in class actions

wager 30% stake of the settlement, risky move

pretrial steps

1. pleadings

2. discovery

3. motions

pleadings

formal doc stating positions, aka a complaint

what can defendant FILE (not motion) after complaint is filed

defendant can file a counterclaim

if defendant doesnt answer complaint

court can enter a defult judgement in the plaintiffs favor

discovery

obtain information relevant to the case which could be admitted for evidence

what is discoverable

judge will provide a broad interpretaition for the lawyers

• if sought in discovery, usually admissable as evidence

methods of discovery

1. intterogatories

   1. written questioning submitted by a party

2. request for production

   1. one party asks another to produce docs

3. depositions

   1. swont in testimonies, videod

4. request for admission

   1. have a party admit to facts

motions

written or oral request for a judge to issue a ruling

motion to dismiss

formal request for court to dismiss a case

filed before discovery after complaint is filed

can be filed if lacks smj is past the statute of limitations

motion for judgement on the pleadings

can only be filed before discovery

ask judge to make decision based on complaint and answer

motion for summary judgement

filed after discovery

judicial determination that not factual dispute exists

may ask for judgement soley on matters of law

thrown out before trial by jury

judge can still impose sanctions

trial (expenses)

expensive

have to pay attorneys and experts and witnesses

each party bears own litigation costs

steps in trial

1. voire dire

2. opening statements

3. pi presents evidence

4. d moves for directed verdict

5. d presents evidence

6. closing arguments

7. court instructs jury on law

8. jury deliberates and makes verdict

9. judge enters judgement on the verdict

10. losing party can file posttrial motion

voire dire and jury excusion

jury selection process

can exclude for 2 reasons

• for cause = related to someone

• peremptory challange = for no reason at all

  • has limitations

branston challange

branston v kentucky

cannot get rid of juror bc of race

directed verdict/JMOL (judgement as a matter of law)

filed by d after pi presents evidence

asks judge to direct jury to make a verdict that reasonable minds could not differ as to the correct outcome

removes jury discretion

jury decisions unanimity

• civil and federal - unanimous

• civil and state - depends on the state

• criminal federal and state - yes

if jury can’t make a decision

deadlock or hung jury

results in a mistrial

plaintiff has to move to start trial again

dynamite charge

judge tells jury to make a unanimous verdict

burden of proof

party must convince judge/jury of the disputed facts

3 types of burden of proof

1. beyond a reasonable doubt

2. preponderance of evidence

3. clear and convinving proof

beyond a reasonable doubt

criminal cases only

that defendent is guilty of the crime beyond a reasonable doubt

basically cant deny d is guilty

preponderence of evidence

one sides evidence overcomes the othersides evidence

statrd for civil cases

supporting>opposing evidence

only has to be more than 50% likely

clear and convincing proof

party is required to estbliash existence of alledged facts

substantially more likely to be true

middle of the scale

motion for judgement notwithstanding the verdict

court sets aside jury verdict

reaches opposite result

granted if judge finds that evidence would not reach the verdict

motion for a new trial

party who recieves adverse judgement may file motion for a new trial

only granted if judge is convinced a legal issue was made

writ of certiorari

apeal to a higher court

motion to compel

request for opposition to comply with discovery demands

filed during discovery

appellant

party seeing decision in a lower court

apellee

party responding to an appeal

winner in trial court

posttrial steps

1. notice of appeals filed

2. parties file appelate briefs

3. court makes and announces decision if they can go to court

4. oral arguments

5. petition to higher court

6. higher court allows or denies review

7. final decision

final decision of appeals court

• affirm

• uphold

• remand

petitioner

files writ of certiorari

respondant

action filed agaist them in writ of certiorari

excecution

siezure of debtors property, proceeds go to creditor

garnishment

portion of debtors wages go to creditor

what are administrative agencies, where do they get their power from?

org part of the excecutive part of the government

created to serve a purpose as authorized thhy the legislative branch

get power from congress through enabling acts

good to have power spread throughout the government

enabling acts

passed by congress, created agencies, defines purpose, scope, and authority

3 powers of agencies:

• quasi-legislative

• quasi-judicial

• quasi-excecutive

quasi-legislative

power to create rules and regulations within their realm

quasi-judicial

power to decide over controversies within their realm

quasi-excecutive

power to investigate, posecute, and advise

excecutive agency

within exce. branch, president has a lot of power over them, federal bodies, led by single secretary

independent agency

within excecutive branch, insulated from political influence, multi-member boards

organization of agencies

1. chairperson

2. secretary/advisory counsils

3. director of operations, excecutive director for admin., ALJs

4. general counsel

chairperson

presiding ifficer at meetings

secretary

responsible for minutes and records