Intro to Law Midterm 1

Stare Decisis

deciding new cases with reference to former decisions, or precedents. "LET THE DECISION STAND."

Admin Agencies

may issue rules, hear cases, and enforce laws

Case Law (Common Law)

a court's decision in criminal trial or a non-criminal lawsuit. resolve disputes not covered by higher law

Precedent

the use of past case law to inform a decision

Executive Order

rules made by the head honcho in the executive branch (president, state governor, city mayor)

Public Law

relationship between individuals and the government (eg. Primarily statutory & admin law)

Private Law

relationship individuals (eg. Primarily contract law)

Civil Law

resolves disputes between individuals or groups (eg. contract, real estate, divorce)

Lawsuit Filer = Plaintiff

Lawsuit Filee = Defendant

51% burden of proof for evidence (preponderance of evidence)

Criminal Law

punishes those who violate societal norms

Plaintiff = Government

Criminals are punished with fines and Jail time

99% burden of proof for evidence (beyond a reasonable doubt)

Substantive Law ("What")

identifies legal rights and obligations

Procedural Law ("How")

procedure followed to protect and enforce legal rights

Natural Law

all human beings possess inherent natural rights that cannot be taken away by man-made law (eg. Declaration of Independence, Bill of Rights).

a universal law applicable to all human beings and above human-made law

Legal Positivism

proposes that there is no higher law than positive law

Legal Realism

judges should rule based on the unique circumstances of the case, rather than based on precedent.

Name and Explain the Sources of Law in the American Legal System

1) Constitutional Law - Federal and State

2) Statutory Law - Laws passed by federal and state legislatures

3) Administrative Law - rules made by admin agencies

4) Case Law - using precedent from past decisions interpreting similar laws

5) Common Law - when judges fill in the gaps of case law by using precedent and legal standards

6) Executive Orders - rules made by the head of an executive branch

A court needs what jurisdiction to preside over a case?

1) Subject Matter Jurisdiction

AND

2a) Personal Jurisdiction

OR

2b) Property "In Rem" Jurisdiction

States have exclusive jurisdiction over:

*Marriage

*Adoption

*Probate

*All claims where no federal jurisdiction can be invoked (some torts, contracts, property disputes)

Long-Arm Statutes

ability to have jurisdiction over out-of-state defendants. (eg. Cole v. Mileti --> "Negotiated contract over telephone")

Venue

appropriate location for a trial. criminal trials sometimes have venue changes due to pretrial publicity possibly affecting the defendant's rights to an impartial jury.

How do you get into Federal Court for Civil Matters?

1) Federal Question Cases - a claim based on the US Constitution, a federal statute, or federal treaty

2) Diversity of Citizenship Cases - when the plaintiff and defendant are citizens of two different states, AND the dispute is greater than $75,000

Injunctive Relief

told to stop doing or not doing something

Anatomy of Lawsuits

1) Petitions & Notice

2) Pre-answer motions

3) Answer

4) Discovery

5) Summary Judgment

6) Pretrial Conference

7) Trial

Discovery

purpose is to preserve evidence, limit the element of surprise, narrow issues for trial, and impeach witnesses at trial. (eg. Interrogations, Depositions, Requests for Documents, Electronic discovery)

Depositions

oral questioning by a lawyer, under oath, to preserve testimony for trial and get more facts

Written Discovery

Interrogations, Requests for Admissions, Production of Documents

Voir Dire

the process used by courts in civil cases to select jury members

What are the two challenges used in Jury Selection?

Peremptory Challenge- lawyers on both sides can reject jury members based on their answers to voir dire/background

Challenge for Cause - reject a juror due to their voir dire answer showing bias

Direct Examination

witness is asked to discuss specific exhibits supporting the speaker's case

Cross Examination

attorney challenges the accuracy of the witnesses' account and believability of the testimony.

Alternative Dispute Resolution (ADR)

1. Negotiation 2. Mediation 3. Arbitration 4. Hybrid

Badaracco's Four Ethical Frameworks

1) Net/Net Framework

2) Individual Rights

3) Character

4) What Will Work In The World As It Is

History of the Constitution

Article 1- Congress' Constitutional Authority

Article 2 & 3- Executive and Judicial's Constitutional Authority

Article 4- Privileges and Immunities Clause

Article 5- Amendment Processes

Article 6- Supremacy

Article 7- Original Constitution can be amended by 9/13 vote

Mootness

A criterion used by courts to avoid hearing cases that no longer require resolution; cases that are TOO LATE

Ripeness

a case that is ready for litigation and does not depend upon hypothetical future events

Federal Preemption

federal laws win over state laws

What is the Test for "Substantially Affects Interstate Commerce"?

From "US v. Morrison (2000)"

-Does Statute regulate commerce or economic activity?

-Is the statute jurisdictionally limited to a specific set of cases?

-Does the statute or its legislative history indicate the regulated activity affects interstate commerce?

-Is the link between the regulated activity and interstate commerce weak?

**General rule: The narrower the law is written, the better chance it will pass judicial review

Commerce Clause Cases

US v Morrison (2000)

*More narrow and connected the law is to commerce, then more likely to be accepted.

* Establishes the test for "Substantially Affects Interstate Commerce"

Gibbons v Ogden (1824)

*Steamboat case - Tax on boat

*Interstate Commerce

Wickard v Filburn (1942)

*Penalty on farmer for going over wheat quota

Katzenbach v McClund (1964)

*Restaurant Segregation

*Desegregation grounded in Interstate Commerce Clause

Cases That Reigned In the Commerce Clause

US v Lopez, 1995

*Portrayed guns as an impediment to learning

*Struck down due to weak connection

US Morrison, 2000 - Violence Against Women Act,

* Violence Against Women Act, Commerce Clause Justification

*Shut down

Gonzales v Reich

*Congress has authority to prohibit interstate commerce as part of a larger scheme

Dormant Commerce Clause

idea that -since Congress has the exclusive right to regulate interstate commerce, states do NOT have the authority to regulate interstate commerce.

Bill of Rights

1st Ten Amendments

1. Free Speech & Religion & Press

2. Guns

3. No Quartering

4. No Illegal Search and Seizure

5. Due Process

6. Counsel, Confrontation, Criminal Jury Trial

7. Civil Jury Trial

8. No Cruel and Unusual Punishment

9. Other Unmentioned Rights Cannot Be Violated

10. Any power unassigned to the Fed gov't goes to states

Incorporated Amendments

incorporated amendments apply to states as well.

Incorporated Amendments:

--> 1st, 2nd, 4th, 5th, 6th, 8th

1st Amendment Cases

Employment v Smith (1990) - two Native American workers were fired for ingesting peyote, a NA religious drug.

Burwell v. Hobby Lobby Stores (2014) - corporate right to practice religion.

*Not allowed to deny a corporation the ability to practice its religion

Masterpiece Cakeshop - Religious Freedom Case

Brandenburg v Ohio (1969) - KKK leader illegally held under law prohibiting the incitation of violence.

*Must be imminently and likely inciting violence, otherwise violates free speech.

Tinker v Des Moines (1969) - black armbands got students banned

*Students do not lose their 1st Amendment right to free speech when they stop through the school door.

Chaplinsky v New Hampshire (1942)- Called an officer a fascist and was arrested for disturbing the peace.

*Fighting words, words that intend to incite an immediate breach of the peace / violence.

Dennis v US (1951) - plotting to overthrow the US gov't for Communism.

*Clear and Present Danger - advocation for the overthrow of the government NOT protected speech.

Texas v Johnson (1989) - flag burning

* NOT legal to prohibit flag burning. Gov't may not prevent the expression of an idea simply because it finds the idea offensive.

Exceptions to Freedom of Speech

Reasonable limits on time,place, and manner of speech.

1. Fighting Words - words intended to provoke a fight

2. Clear and Present Danger - advocation for the overthrow of the government

3. Obscenity - speech that offends community moral standards and lacks redeeming social value, sometimes used to prevent pornography, nude dancing

Levels of Scrutiny

MINIMAL SCRUTINY- (related to any factor other than race, national origin, or gender) challenge to a law is likely to fail

INTERMEDIATE SCRUTINY- (related to gender) gov'ts goal needs to be important to withstand challenge

STRICT SCRUTINY - (related to race or national origin) best chance for challenges of law to win.

*Gov't must show a compelling interest to limit the person's rights

*No narrower alternatives

Procedural Due Process

process by which law is applied and used to deny someone life, liberty, and property

*Notice of Charges and Impending Losses

*Right to Respond and Contest the Matter

*Unbiased decisionmakers

Substantive Due Process

the fairness of the law used to deny someone life, liberty, and property.

If the law abridges a fundamental right (privacy, vote, travel, speech) then it must pass strict scrutiny.