foundations of american law: test 1

federalism

federal and state governments are sovereign entities

complex rules

special rules govern debate of legislation in favor of majority party

reynolds v. sims

one man, one vote

unitary executive

all executive power/control over executive officers rest in the president

civil actions

between parties based on tort/contract

burden of proof/standrd of proof

plaintiff must meet

grand jury

ordinary people, may return indictment depending on strength of evidence

arraignment

proceeding where defendant is informed of charges, enters plea

proceeding by information

less serious crimes; similar to civil complaint: burden of proof is beyond a reasonable doubt

appellate court

not concerned w/ redetermining facts, concerned w/ errors of law; determine reversal of court's judgmenet or sending case back for further litigation; reverse factual findings in case of clear error

grounds for appeal

misstated law, excluded/included evidence, statute misinterpreted, law was unconstitutional, evidence legally insufficient

de novo

judgment reviewed w/ no deference to judgment of trial court

standard of review

reviewing decision of trial court, whether de novo, or trial court's decision was abuse of discretion, or factual judgment was clearly erroneous

appellate advocate

understand standard of review an appeals court will apply

en banc proceeding

cases taken up by larger panel of circuit court of appeals

litigation process

1) complaint/crime

2) efforts to dismiss

3) taking evidence

4) motions for summary judgment

5) trial

6) appeals

jurisdiction

judicial power to adjudicate a case

personal jurisdiction

litigant's ties to jurisdiction must be sufficient (geographic range)

subject matter jurisdiction

court's power to speak to issues raised in litigation

federal question jurisdiction

call for an application of federal laws

diversity jurisdiction

gives federal courts power to resolve any dispute b/w citizens of different states

common law

body of law created by courts in case-by-case decisions over time

body of law

set of information that will be part of the grounds on which a court will decide whether to compel an entity (private person, corporation, govt official) to do something it wishes not to do

standard of proof

show a law violation by showing law's criterion is satisfied by facts to a given degree of certainty

legal system

set of rules (laws) for figuring out how a group/public will deploy whatever coercion it can muster

public institutions

legislatures, presidents/city councils (work on behalf of the collective)

private institutions

corporation, single individual, contracting parties (serve creators' interests, not necessarily the public's)

constitutional law

set of rules governing which institutions can make which kinds of laws and what the permissible contents of laws are

procedurepro

rules governing who can bring/how they can bring actions to enforce law

steps convince court defendant should lose

1. duty

2. breach

3. causation

4. damages

5. defense

legal rule

specifics in advance and w/ precision conduct that will subject you to fines/punishment

- reduce decisions costs, quantity of litigation bc resolution of disputes is more predictable; less uncertainty

legal standard

way to determine legality that depends on judgments, not mere calculations

- enable decision-makers to reach more just/efficient results in given cases than application of a mechanical rule

- promote transparent considerations of reasonableness

multi-factor balancing test

courts consider several different interests/factors and weigh them

principle

consideration in lawmaking that has weight but isn't determinative

steps to writing a legal argument

Issue

Rule

Application

Conclusion

litigation train

1. complaint

2. motion to dismiss (moves to dismissal or answer)

3. answer moves to discovery

4. motion for summary judgment (moves to dismissal or trial)

5. trial

mirror image rule (contract law)

offeree must accept precise terms of offer for acceptance to occur and contract to be created

meeting of the minds

parties were mutually aware they entered into contract

consideration (contract law)

the thing that is promised (required on both sides)

expectation damages (contract law)

amount sufficient to put plaintiff in as good a position as they would've been had they breaching party fully performed

specific performance (contract law)

an order to perform; awarded when money damages are inadequate

intentional torts (defendant is strictly liable)

battery, trespass to land, damaging property (conversion), intentional infliction of emotional distress

negligence per se

applicable public safety statues prescribing conduct to protect against injuries

res ipsa loquitor

there was an injury arising from circumstances that do not ordinarily occur w/o negligence of the defendant

proximate causation

policy-based limit on what consequences of the defendant's actions should be addressed in tort

- requires proof injury/harm was reasonably foreseeable

contributory negligence

total defense to a negligence suit

comparative negligence

plaintiff's negligence merely reduces what a plaintiff can recover from defendant by an amount equal to proportion of injuries that were fault of plaintiff

justifications for constraints on liberty

retribution, deterrence, incapacitation, rehabilitation

model penal code (robinson and dubber)

imposing liability, defense, inchoate offenses --> provides greater clarity/sophistication while simplifying code

1. does the actor's conduct constitute a crime?

2. even if actor's conduct doesn't constitute a crime, are there special reasons why the conduct ought not to be considered wrongful in this instance?

3. even if the actor's conduct is a crime and is unjustified, should actor be held blameworthy?

rational actor model

models humans as preference-bearing entities who

1. seek to maximize satisfaction of those preferences (self-interested)

2. do so coherently

rational choice theory

identifies larger scale social/economic effects w/ the sum of individual actions taken by rational actors

efficiency

change is efficient if it improves satisfaction of preferences within the group we're studying

pareto efficient

someone in group is made better off by the change and no one is made worse off

kaldor-hicks efficent

those who are made better off by the change could compensate those who are made worse off and still come out ahead

externalities

entity making decision doesn't bear the costs of that decision

coase

all harms are reciprocal in nature; parties have conflicting desires

- efficiency grounds: giving one side power to realize their preferences if we were sure of which side was more efficient

- if a party identifies an opportunity it values more than the cost of taking the opportunity, it will take the opportunity (rational actor assumption)

coase theorem

no matter the legal rule, parties will bargain to achieve an efficient result

- even if parties bargain to reach a result, legal rule has distributive effect (dictate who must pay whom to change an entitlement under law)

- all parties must be rational actors

- initial entitlement must be clear

- bargaining comes w/ transaction costs, potential holdouts, free riders

transaction cost economics

efficiency-driven analysis of policies, deals, and events predicting what rational actors will do in response to opportunities that present different levels of gain, loss, and transaction cost

- when transaction costs are low, parties will rearrange entitlements to achieve efficient outcomes

holdouts

areas of likely market failure in which liability or regulation might produce efficiency gains

efficient breach

breaching contract to enter 2nd contract that covers damages lost from 1st contract

bilateral monopolies

there is only one buyer/one possible seller

8 ways a legal system can fail

1. decisions made case-by-case without established rules

2. laws aren't publicized

3. laws punish/regulate conduct after it happened

4. unclear laws

5. contradictory laws

6. impossible laws

7. constantly changing laws

8. gap between law on paper/how officials administer it

procedural justice

fair/consistent legal procedures

- fuller: lawmakers have a moral obligation to create/administer laws fairly

corrective justice

wrongdoers should correct the harm caused

- goal: restore what victim lost, compensate the victim, repair the effects of wrongful conduct

2 reasons for strict liability

1. efficiency

2. fair distribution of losses

retributive justice

people who commit wrongs deserve punishment

- punitive damages: punish especially wrongful/outrageous conduct -> exceed amount necessary to compensate victim

distributive justice

perceived fairness of the amount and allocation of rewards among individuals

strict egalitarianism

everyone receives equal amounts of goods and resources

luck egalitarianism

justice should compensate people for disadvantages caused by bad luck, but not necessarily for disadvantages caused by their voluntary choices

nozick's theory of justice

a distribution of wealth or holdings is just if it arises from voluntary transactions and fair historical processes, rather than conforming to a pre-determined social pattern

rawlsian justice

making decisions without knowing the position we will occupy

original position/veil of ignorance: chooses rules before discovering who you'll be

1. equal basic liberties

2. fair equality of opportunity

3. difference principle (inequalities are justified only if they benefit the least well off)

utilitarianism/welfarism

maximize overall welfare satisfaction

desert-based

people received benefits based on what they deserve

libertarianism

whether property/resources were obtained through a just process