BLaw Exam 1

define liable

being responsible for something/one

Four sources of American Law

1. Constitution

2. Statutes

3. Regulations

4. Case law and common law doctrines

What is statutory law?

Laws passed by any body of legislature

What is an ordinance? what type of law does it fall under

regulations passed by municipal and/or county governing units, falls under statutes

what is administrative law?

regulations passed by administrative agencies at any level

What comprises case law?

judge rulings on court cases, governs everything not covered by statutory, administrative law or common law tradition

define remedy

relief given to an innocent victim to enforce a right or compensate for rights violations

What is awarded as a remedy at law?

monetary damages

Diff between remedy at law and remedy in equity

remedy at law is monetary/physical, remedy in equity is compelling or stopping some action. Remedies in equity only given when remedy at law is insufficient

define equitable maxim

General propositions or principles of law that have to do with fairness (equity)

What is laches?

equitable doctrine saying you gotta pursue your rights actively and not be lazy if they are violated otherwise you aren’t entitled to remedy

what are the two parties called in a law case? equity case?

law: plaintiff and defendant. equity: petitioner and respondant.

define binding authority

any source of law a court must follow when governing a case

define persuasive authority

Any legal authority or source of law that a court may look to for guidance but need not follow when making a decision

Basic steps in legal reasoning

1. issue - what are the key facts and issues

2. rule - what rules of law apply here

3. application - how do rules of law apply here

4. conclusion - what conclusion to be drawn

define case on point

previously decided cases with similar facts and issues to the one at hand

define jurisprudence

study of law

what are the four schools of law?

1. natural law school

2. positivist school

3. historical school

4. legal realism

what do natural law scholars believe

legal system should reflect higher, universal moral and ethical laws that are inherent in human nature

what do positivist scholars believe

fuck morality, we just have laws and the laws are the highest morality and must be obeyed until they are legally changed. more likely to uphold previous precendent.

what do historical schoool scholars say

look at how law evolved over time, put more credence in the ones that have remained for a long time to determine what current law should look like

what do legal realists believe

the law is only one thing that should be considered in cases; should consider socio-economic factors as well. more likely to depart from precedent

diff b/w substantive and procedural law

substantive: outline, define, describe, regulate legal rights and obligations

procedural: methods of enforcing rights and obligations in substantive

civil vs criminal law

civil - about person-person and person-government relationships. mostly filed by private parties against each other

criminal - person-public as a whole relationships. filed by the government against offenders

appellant vs appellee

appelant - party appealing the case

appellee- party being appealed against

define per curiam opinion

a decision written “by the court” as a whole, not attributed to a single justice/judge

who has police powers?

states, not the fed

commerce clause

congress can regulate interstate commerce, where it gets the majority of its justification for everything. very broadly interpreted

dormant commerce clause

states cannot impinge upon interstate commerce in a way that explicitly favors in-state parties over out-of-state ones

define preemption

when fed law takes precendence over state

What type of restrictions can you do without free speech violations?

content neutral restrictions (about time, manner, place; not what is being said)

what standard does the government have to have to curb free speech?

compelling interest standard

What criteria must the government meet to curb commerical speech?

1. It must seek to implement a substantial government interest.

2. It must directly advance that interest.

3. It must go no further than necessary to accomplish its objective

what standard must government have to curb religious freedom?

compelling state interest

diff b/w procedural and substantive due process?

procedural: government must give proper notice and opportunity before depriving life, liberty, or property

substantive: government can’t pass laws that unfairly or unreasonably impinges citizens’ rights

what are the three levels of scrutiny? when is it applied

due process standards applied in substantive due process

1. strict scrutiny: classification must be necessary to enact a compelling state interest. applicable in fundamental rights and suspect class cases.

2. intermediate scrutiny: gender. substantial interest must be proved

3. rational basis: if the government could have any rational basis on which they classify people, its chill

what is a suspect class? how does it relate to anything

national origin and race. part of strict scrutiny standard for due process

what are the three types of speech you can limit?

1. obscenity

2. defamation

3. fighting words

what is the judiciary’s role?

interpreting laws

what is judicial review? what case is associated with this?

court can rule on the constitutionality of legislative/executive acts and laws. Marbury v Madison

what are the three elements for a lawsuit to procede?

1. jurisdiction

2. venue

3. standing

what are the different types of jurisdiciton?

• in personam: jurisdiction on person/corp. in a certain geographic area

  • in rem: jurisdiction on property in a certain geographic area

• subject matter: jurisdiction over certain things at dispute

  • unlimited (general) usually granted to state courts

  • limited: some federal courts. can be limited by subject, felony vs misdemeanor, trial vs appeal, sum in question

When do federal courts have jurisdiction?

when there’s a federal question (fed law/treaty/constitution in dispute), or when there is diversity of citizenship

when do you have diversity of citizenship? why is this important?

parties are residents of different states and over 75K is in dispute. important for determining whether federal courts have jurisdiction

define long arm statute and importance

laws that let a state have jurisdiction over non-residents if minimum contact is proven

where is a corporation typically in personal jurisdiction of a state?

1. where it was incorporated

2. where its hq is

3. where it does substantial and continuous business

in what situations do federal courts have exclusive jurisdiction? state courts?

federal courts: bankruptcy, IP, federal crimes, antitrust violations, maritime cases

state courts: adoption, divorce, probate

do courts need both types of jurisdiction?

yes

if you can prove personal jurisdiction, do you need to further prove subject matter?

no

can state courts take federal statutory claims? if so, when?

yes as long as it’s not on a subject exclusive to the federal courts, even if diversity of citizenship or federal questions exist. it will apply federal law.

t/f procedural law across states stays the same while substantive changes

f, in reverse

what should you consider when forum shopping?

location/convenience

judge

how back-logged the court is

what is the sliding scale standard? when is it applied?

applied in online relationships. must prove

1. defendent conducted substaintial business over the internet

2. consider interactivity of the website; if it’s “passive” or “active” enough to satisfy minimum contact requirement

3. in passive advertising, jurisdiction is never proper

what are the three elements of standing to sue?

1. harm - plaintiff must’ve suffered some harm

2. causation - harm must be linked to conduct listed in complaint

3. remedy - must be likely that a decision can remedy injuries suffered

t/f federal administrative agencies are part of the court systems

true, certain agencies can internally hear cases

what are federal courts of general subject matter jurisdiction called

district courts

what’s litigation

resolving a dispute through the courts

what is ADR? why use it

out-of-court methods for dispute resolution. often cheaper and less damaging to long-term relationships than litigation

define negotiation

two parties try to solve dispute informally, with or w/o attorneys

define mediation

two parties have a neutral third party hear both sides and suggest how to resolve. non binding

define arbitration

basically fake court. neutral party or panel of experts hears the dispute and gives a binding decision. cannot appeal unless in really special circumstances (like arbitor showed up to it drunk). most contracts have arbitration clauses

what are the three phases of litigation

pretrial, trial, posttrial

when do lawyers charge contingency fees?

mostly in personal injury cases

when do lawyers charge fixed fees?

simple services like drafting a will

what happens during pretrial proceedings?

filing of pleadings, pretrial motions, discovery, jury selection

what are pleadings

includes the complaint and the answer. basically each side’s laying out of the case

what are the elements of a complaint

1. jurisdiction - shows how court has both subject matter and personal jurisdiction

2. legal theory - facts establishing case and basis for relief

3. remedy - remedy plaintiff wants

define service of process

delivery of complaint and summons to defendant

define summons

notice requiring defendant to show up in court at a certain date/time to answer a complaint

define default judgement

judgement issued when defendant doesn’t show up in court or doesn’t file an answer to the complaint.

define answer

defendant’s response to plaintiff’s complaint. must either admit to or deny each of the allegations and lay out defenses to allegations

define affirmative defense

admitting to the truth of the complain but show new facts that show why defendant wasn’t liable for damages

motion for judgement on pleadings vs motion for summary judgement

motion for judgement on pleadings - only considers evidence in the pleadings

motion for summary judgement - considers all evidence presented to court, can be filed before or during trial

both are only filed when the facts aren’t in question but the application of law is

what is discoverable

relevant informtion or information that would likely lead to discovering relevant information

define deposition vs interrogatories

deposition - sworn testimony made by a party or witness in a lawsuit pre-trial and recorded by a court official

interrogatory - basically a written answer to a list of questions one party submits to another. only a party can get these

what is the jury selection process called

voire dire

what types of information is not admittable to court

hearsay and irrelevant informtation

what’s a motion for a judgement as a matter of law

motion asking judge to rule in one party’s side because not enough info was presented by the other side to defend their claims. very rarely granted. only granted if not enough info for there to be an issue of fact

rebuttal vs rejoinder

rebuttal - refutation of evidence entered by opposite side

rejoinder - refutation of a rebuttal

when are motions for a new trial granted

only if the trial was so fundamentally flawed (judge error, jury law application error, new evidence, jury prejudice) that not retrying would be a miscarriage of justice

when are motions for judgement n.o.v. granted?

jury verdict was unreasonable and erroneous

what do you file to initiate an appeal? what does it contain?

brief, contains facts and issues of the case, judges rulings/jury findings that should be reversed, applicable law, and argument for reversal

define writ of execution

court order telling police to seize and sell debtor’s property to pay for a settlement

what evidence is relevant?

evidence tending to make a fact more or less probable than it would be without that evidence

what is a tort?

A breach of a legal duty that proximately causes harm or injury to another.

what are the two types of compensatory damages that can be awarded in tort cases

1. special damages: compensate plaintiff for quantifiable monetary losses (ex: medical bills, lost wages, etc)

2. general damages: compensate plaintiff for nonmonetary aspects of harm suffered (ex: pain and suffering)

when can courts assign punitive damages?

when defendant’s conduct was particularly egregious (outrageous) or reprehensable (shameful). mostly only available in intentional tort cases and gross negligence

diff b/w intentional vs negligence torts

intentional = fault w/ intent

negligence = just fault

what are the main defenses to tort cases

1. consent/assumption of risk

2. comparative/contributory negligence - plaintiff is negligent and therefore responsible

3. statute of limitations - waited too long to file

define transferred intent? how is it relevant

basically when you mean to injure one person and accidentally injure someone else. You are still liable for intentional torts to the second person; intent gets transferred.

assault vs battery

assault = reasonable threat of immediate harm

battery = unpriviledged touching of another person

libel vs slander

libel = written or otherwise permanently available defamation

slander = oral defamation

for defamation, what elements must plaintiffs establish?

1. defendant made false statement of fact

2. statement was understood to be about plaintiff and harmed plaintiff’s reputation

3. publication - told to 1+ other person

4. (for famous people) actual malice

in what types of defamation cases are damages assumed

libel cases. gotta prove it for slander

what are some defenses to defamation

1. it was a true statement or statement of opinion

2. it was said in a priviledged circumstance

3. if the person is considered a public figure, because then they’d need to prove actual malice

what is actual malice? when do you need to prove it

basically a statement made with disregard for the truth or knowingly falsely. must prove it in defamation cases against public figures.

when do you have absolute privilege?

when speaking to your lawyer during a trial and government officials debating in legislatures

when are you not liable under qualified privilege?

when statements are made in good faith and only told to those with a legitamite interest

what are the main business torts? what are each of their elements?

1. wrongful interfernece in a contractual relationship

   1. valid enforceable contact b/w 2 parties

   2. third party must know contract exists

   3. third party induces one of the contract’s parties to breach the contract

2. Wrongful Interference with a Business Relationship. no real elements, just have to prove predatory business practices that interfere with another’s business (ex: specific targeting of one company)

tresspass to personal property vs conversion

initial taking = tresspass; keeping it = conversion