Commercial Law Exam 1 Key Information

If something is legal is it also ethical?

No

Law is a moral minimum

everyone thinks you can hold yourself up

What is Criminal Law created for?

• created to punish for not complying with acceptable behavior and to deter for people to know not to do that

Who brings criminal action to court?

• state and federal government bring criminal action (prosecutor)

• done and brought by the government

Why do we have Common Law System?

It is more flexible and faster - it takes forever for congress to pass a law

• it is more responsive to everyday disputes

Key Differences between Court of Law and Equity

• in Equity, only judges determine equity

• If you are not given money you are rewarded through enforcement of legal action - go after their property (the defendant) - go after car, house, stocks, etc. - take, sell, pay off debt

• Separate lawsuit through a collections lawyer to get what you are awarded - not easy to enforce in civil action

Which constitution is the shortest and oldest in the world

The US Constitution

Judicial Review

“Judges in every state shall be bound” - judicial review of state judges of state law to ensure compliance with the Constitution is required

Marbury v. Madison

Marshall said Jefferson is wrong - but does not have power of SCOTUS to offer writ (they said they cannot)

Judicial Restraint Ideas

• Court has to assume legislators did not intend to violate constitution and that all statutes are presumptively valid until proven otherwise (assume it is valid until someone comes to court and proves it is not)

• Key features: 1. deference to elected officials (assume they know what they are doing - defer to their judgment) 2. narrow rulings (court only answers questions brought - just case

Key Points of Gibbon v. Ogden

• Court says among several states applies to intrastate commerce

  • Because commercial law prohibits states from passing laws that interfere with or contradicts congress’s authority to protect interstate commerce

    • Dormant Commerce Clause: not specified in Constitution - instead it is implied

Key Point of US v. Lopez

Court says: “The law dealt with non-economic/non-commercial activity” - nothing of this law deals with commerce, and no clear connection to commerce

Difference between Full Faith and Credit and Privilege and Immunities

• Privilege and immunity is not absolute unlike Full Faith and Credit

• i.e. not treated the same as VA residents with tuition as equal treatment is only applied to fundamental rights (which tuition is not)

Significance of Reynolds v. US

First time government embraced strict separation on freedom of religion

Significance of Engel v. Vitale

Court held it was in violation of wall between church and state - did not matter if participation was voluntary

• it still breaks the Establishment Clause

Significance of Lee v. Weisman

Unconstitutional because of coercion factor: government cannot pressure students into religious exercises

Significance of Carson v. Makin

Stands against exclusion - strengthen neutrality and gave religious schools more power and rights

Court Separates Restrictions of Freedom of Speech into 2 Categories

1. Time, manner, place restrictions (when, how, where you can protest - Constitutional restrictions because of the health, safety, and welfare of society)

2. Content based restrictions: government says you cannot say or believe that (generally unconstitutional) - cannot go to jail for saying something bad about the military

Significance of Schenck v. US (1919)

• Court says: when we are at war, things that can be said when we are in peace are not okay, war presents new issues of security because it presents clear and present danger

• “when we are at war, speech that would otherwise be protected becomes unconstitutional”

Significance of Brandenburg v. Ohio (1969)

Strong protection for political dissent (but is already being challenged)

Significance of U.S. v. Cruikshank (1876)

SCOTUS said law was unconstitutional - amendment only restricted federal government (only one who cannot take rights away) - freedom for individuals

Significance of Presser v. Illinois (1886)

SCOTUS said 2nd Amendment does not prohibit states from regulating militias

Significance of U.S. v. Miller (1939)

• Purpose of 2nd Amendment was to render possible the effectiveness of all state militia, and the amendment, be interpreted and applied with that in view - not rights of individuals to own guns

• SCOTUS agreed shot gun was not necessary

Significance of U.S. v. Rahimi (2024)

Allow restriction - cannot have gun and have a restraining order

Amendments that discuss due process

5th and 14th Amendments

Significance of Kyllo v. US (2001)

Just as thermo-imaging was too intrusive, with drones, law states you need a warrant first as well bc it is also too intrusive

4 States that Ban No Knock

• Virginia

• Florida

• Oregon

• Tennessee

• Other states have created limitations (meaning you have to knock for certain reasons)

What does the Exclusionary Rule apply to

only federal court

Rules for Police Confrontation during Casual Stop

• Police can stop you, but you are voluntarily talking – if they knew they would arrest you

• Police can only detain you temporarily – ask if you are free to go without giving answers (ask what it is for and if they do arrest you, you have right to record – not giving an id is not a crime)

Rules for Multiple Charges for an Offense

• Multiple charges for one act – a defendant can be charged with more than one crime for same bad act but can only be punished for one of the offenses

•   i.e. someone charged with 1^st degree murder, 2^nd degree murder, manslaughter – charged with all three but only convicted of one

•   difference: murder someone and robbed in the process

Pending Court Cases (Double Jeopardy)

• Case or appeal is not over – if found guilty at trial – while it is pending it is as if case is still ongoing

• When court sends it back it is not double jeopardy to make it stronger

Significance of Blueford v. Arkansas

Court said mistrial with no conviction of trial means can be tried again

Important Parts of 6th Amendment

Covers criminal defendant, court procedures

Virginia Trial Limit

Specific statutory limit of one year before trial

Significance of Furman v. Georgia (1972)

• SCOTUS cut down 35 state death penalty statutes

·      Questioned if unconstitutional because each one was applied arbitrarily, irrationally, and rationally

What some justices look at to determine if rights exist

Text and History

Significance of State Constitutions

• every state has their own

• usually longer because it is easier to amend

• supreme law within state border

• Stops at State Supreme Court with state laws   

• Many include specific rights that are not guaranteed/included in federal constitution

•   i.e. right to gay marriage state right before federal

• can give additional rights but not taken away

States that specifically give right to privacy in state constitution

11

Definitions Section of Statute

Definitions: statutes are contained in acts

• Acts: series of statutes on one subject

• (i.e. many statutes about alcohol in act)

• Definitions of all language that might be construed as ambiguous in statute contained in the Act (i.e. talks about what they mean in what alcohol is for statutes)

• Because lawyers often argue over ambiguous language

i.e. Environmental Act: has several statutes that define environment, other statutes have substantive meaning

  i.e. release CO2 levels

Substantive Section 

laws tell you what you can or cannot do 

When courts create common law

when there are gaps in the law

• gives court allowance to basically act as legislators

• laws get done quicker

Limitation of Stare Decisis

Change is still possible

• i.e. Roe v. Wade v. Dobbs

Problem with Stare Decisis 

Flexibility can lead to problems 

• overturning precedent (can be good or bad) 

State Law Drinking Liabilities

• 48 states have laws (including Virginia) that allows party host to be civilly liable for injuries and damages of an underage drinker they serve

• you serve alcohol to someone under 21 and they injure someone, the adult is liable too

Liable

• civil problem

• have to pay money

Liability specificity in adults and underage drinking

• does not matter if adult dod not buy alcohol (and if they are not in the home - does not matter - still liable as homeowner)

Significance of International Shoe Corporation v. Washington 

• established minimum contact rule 

  • means defendant has to have some connection to VA

  • if cannot establish, go to their state

  • okay if they consent and if Long Arm statute allows

  • every state codifies - write what it takes to establish

Causes of Action for Same Event

Can have all three in the same event - not mutually exclusive

o   Example: criminal – killed someone, civil victim – family sues for killing, civil enforcement – DMV takes license away because of DUI that killed

Facts for Causes of Action

Can use same facts in each case

• U.S. is one of the few counties with rule that one cause of action is not evidence in the trial of another cause of action (it is simply just the result)

Double Jeopardy in Causes of Action 

Double jeopardy only applies to two trials for criminal not other courts of law 

Crime Statute Relationship

All crimes are statutes - have to be written statutes

How Civil Enforcement Cases are heard

most are hearings - do not often get to courtroom

Different Party for Civil Victim Case

can be businesses not just individuals

Criminal Case 5th Amendment Application 

Cannot make assumption and say they did not take the stand so they are guilty (considered malpractice) 

Co-Owned Forfeited Property in Criminal Case

When they forfeit property, if it is co-owned it cannot be taken - the other person could keep it if they had no relation to the crime

Proof of Compensation in Civil Victim Case

Must be proven to the last penny - do not just say it is worth 1 million