exam #1 (chapters 1-7)

law

consists of rules that regulate the conduct of individuals, businesses, and other organizations in society

• intended to protect persons and their property against unwanted interference from others

• forbids from engaging in certain undesirable acts

• set out rules of enforceable conduct

functions of the law

• keeping the peace

• shaping moral standards

• promoting social justice

• maintaining the status quo

• facilitating orderly change

• facilitating planning

• providing a basis for compromise

• maximizing individual freedom

keeping the peace

make certain activities crimes

shaping moral standards

discourage drug and alcohol use

promoting social justice

prohibit discrimination in employment

maintaining the status quo

prevent the forceful overthrow of the government

facilitating orderly change

laws are enacted only after considerable study, debate, and public input

facilitating planning

well-designed commercial laws allow businesses to plan their activities, allocate their productive resources, and assess the risks they take

providing a basis for compromise

laws allow for the settlement of cases prior to trial

jurisprudence

the philosophy or science of the law

natural law school

suggests that the law is based on what is “correct”

moral theory of law

law should be based on morality and ethics

• discovered by humans using reason and choosing between good and evil

historical school

believes that the law is an aggregate of social traditions and customs that have developed over centuries

• believes that changes in the norms of society will gradually be reflected in the law = evolutionary process

• looks at precedents to solve contemporary problems

analytical school

maintains that the law is shaped by logic

• believes that results are reached by applying principles of logic to the specific facts of a case

• emphasis on logic and not how the result is reached

sociological school

asserts that the law is a means of achieving and advancing certain sociological goals

• followers = realists

• unlikely to adhere to past law as a precedent

social justice school

maintains that the law should be designed to provide for the fair division of opportunities, resources, and privileges in society

• aka distributive justice

• based on DEI

critical legal studies school

asserts that the law is intertwined with social issues

• proposes that in some law legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo

• legal disputes should be solved by applying arbitary rules that are based on broad notions of what is “fair”

• decision making by judges is permitted

law and economics school

believes that promoting market efficiency should be the central goal of legal decision making

command school

assert that the law is a set of rules developed, communicated, and enforced by the ruling party, rather than a reflection of society’s morality, history, logic or sociology

• law changes when ruling class changes

english common law

developed by judges who issued their opinions when deciding cases

• principles announced in these cases became precedent for later judges

sources of US law

• constitution

• treaties

• statues

• state constitutions

• ordinances

• executive order

• regulations and orders of administrative agencies

• judicial decisions

treaty

an agreement between 2+ nations that is formally signed by an authorized representative for each nation and ratified by each natino

statutes

written laws that establish certain course of conduct that must be adhered by covered parties

ordinances

laws enacted by local government bodies, such as state and municipalities

stare decisis

a doctrine that requires adherence to precedence; to stand by the decision

• promotes uniformity of the law within a jurisdiction, makes the court system for efficient, and makes the law more predictable for individuals and businesses

• courts of one jurisdiction are NOT bound by precedents established by courts of another jurisdiction

executive orders

issued by the president and state governors

• power derived from existing constitutions and statutory authority

regulation/orders issued by administrative agencies

established by the legislative and executive branches of federal and state governments

• adopt regulations to interpret statutes

• hear and decide disputes

• heads are appointed by executive branch

priority of the law in the US

1. constitution

2. federal statutes and treaties

3. federal administrative regulations

4. state constitutions

5. state statutes

6. state regulations

7. common law

state courts

each state, washington DC, and each territory of the US has its own separate court system

• resolve more than 95% of the lawsuits brought in the country

• limited jurisdiction trial courts

• general jurisdiction trial courts

• intermediate appellate courts

• highest state court

limited jurisdiction trial courts

hears maters of a specialized or limited nature

• aka inferior trial courts

• ex. traffic courts, small claims, probate court, etc.

small clams court

hear civil cases involving small dollar amounts in some dates ($5000-10000)

• parties appear individually and cannot have lawyers represent them

general jurisdiction trial courts

hears cases of a general nature that are not within the jurisdiction of limited jurisdiction trial courts

• includes plaintiff, defendant

• criminal and civil cases

criminal cases

the government, as the plaintiff, sues a party who is alleged to have committed a crime

civil cases

a party sues another for allegedly engaging in conduct that has caused injury to the plaintiff

intermediate appelate courts

hears appeals from trial courts by reviewing court record to determine whether there have been any errors at trial

• no new evidence or testimony

• parties file legal briefs with appellate court

• decisions are appealable to the state’s highest court

highest state court (state supreme court)

hears appeals from intermediate appellate state courts and certain trial courts

• no new evidence or testimony

• decision is final unless a question of law is involved that is appealable to the supreme court

special federal courts

have authority over matters of a specialized nature

• ex. tax court, bankruptcy court, federal claims court, etc.

US district courts

federal court system’s trial courts of general jurisdiction

• 94 US district courts

• empowered to impanel judges, receive evidence, and decide cases

• where most federal cases originate

US court of appeals

federal intermediate appellate courts that decide appeals from the US district courts, several other federal courts, and some federal administrative agencies

• 13 circuits in the federal court system

US supreme court

highest court composed of 9 justices who are nominated by the president and confirmed by the senate (one chief justice)

• hears appeals from federal circuit courts of appeals and some federal district courts, special federal courts, and highest state courts

• decision is final

rule of four

the votes of four justices are necessary to grant an appeal and schedule an oral argument before the court

petition for certiorari

to ask the supreme court to hear a case

writ of certiorari

an official notice that the supreme court will review a case

• only granted in cases involving constitutional and other important issues

unanimous decision

all justices voting agree about the outcome and reasoning

• precedent for later cases

majority decision

majority agree (5+ justices) to outcome and reasoning

• precedent for later cases

plurality decsion

majority of justices agree to outcome but not the reasoning

• settles the case but NOT a precedent

concurring opinion

written by a justice who agrees with the outcome of a case but not the reason

dissenting opinion

written by a justice who doesn’t agree with the majority decision

federal question cases

a means for bringing a lawsuit in federal court because it arises under the US constitution, treaties, federal statutes, federal regulations, or executive orders

diversity of citizenship

occurs if a lawsuit involves citizens of different states OR a citizen of a state and a citizen of a foreign country

• controversy must exceed $75000

exclusive jurisdiction

sole jurisdiction of a federal court to hear and decide cases involving specified cases

ex. federal crimes, anti-trust, bankruptcy, patent, etc.

concurrent jurisdiction

shared by 2+ courts

• state and federal courts have concurrent jurisdiction to hear cases involving diversity of citizenship and federal questions over which federal courts don’t have exclusive jurisdiction

• defendant decides which court hears concurrent jurisdiction case

case or controversy doctrine

a provision in Article III that states federal courts can only hear cases that involve real problems or disagreements

ripeness doctrine

states that the courts will not hear a case where a controversy has not yet arisen

mootness doctrine

provides that courts will not hear a controversy that has already been resolved

full faith and credit clause of constitution

a judgement of a court of one state must be given “full faith and credit” by the courts of another state

standing to sue

a requirement that a plaintiff must have some stake in the outcome of a lawsuit in order to bring a lawsuit

in personam jurisdiction

a court’s jurisdiction over a party to a lawsuit

• plaintiff: by filing a lawsuit

• defendant: general and specific jurisdiction

general jurisdiction

a defendant can be sued for any claim whatsoever, regardless of where the underlying claim prompting the lawsuit occured

specific jurisdiction

a defendant can be sued because of the defendant’s contacts with that jurisdiction

due process clauses (aka service of process)

prohibits courts from exercising personal jurisdiction over a defendant unless the defendant has proper notice of the court’s proceedings

• no person shall be deprived of “life, liberty, and property” without due process of the law

• 5th amendment = federal government action

• 14th amendment = state and local government action

long-arm statute

extends a state’s jurisdiction to nonresidents who were not served a summons within the state

minimum contact

an amount of contact that a defendant must have with a state in order for that state’s courts to have jurisdiction over that person or business

in rem jurisdiction

jurisdiction over a court to hear and decide a case because the property of the lawsuit is located in that state

quasi in rem jurisdiction (attachment)

jurisdiction that allows a plaintiff who obtains a judgement in one state to ry and collect the judgement by attaching property of the defendant located in another state

venue

the geographical location of the court where a lawsuit is commenced

• criminal vs civil doesn’t affect venue

• usually located the closest to where a substantial amount of the events occured

change of venue

movement of a trial to a venue where a more impartial jury can be found in cases where pre-trial publicity or other reason by prejudice jurors located in the proper venue

• done after a venue has been selected

forum-selection clause

designates that a certain court has jurisdiction to hear and decide a case arising out of the contract

choice of venue clause

a contract provision that designates a court that is located in a specified country where any dispute concerning nonperformance of the contract will be decided

choice-of-law clauses

a contract provision that designates a certain state’s law of country’s law that will be applied in any contract dispute

tie decision

not all justices present; not precedent

jurisdiction in cyberspace

complex legal challenge of deciding which country’s laws and courts have the authority to govern online actions, crimes, and data when servers, users, and victims are scattered across different physical borders

litigation

bringing, maintaining, and defending of a lawsuit

6th amendment

in all criminal prosecutions the person accused of the crime has the right to trial by an impartial jury

7th amendment

persons involved in a civil lawsuit have a right to a jury trial in federal court

bench trial

when a jury trial is waived, the judge will hear and decide the case without the help of a jury

pro se litigant

people who represent themselves, without the assistance of an attorney, in a criminal or civil trial

contingency fee

a fee arrangement between a lawyer and client where the lawyer is paid a percentage of damages if they win the case

• not for simple bankruptcy proceedings

pre-trial phase of litigation

• pleadings (complaint, answer, cross-complaint, reply)

• discovery

• pre-trial motions

• settlement conference

pleadings

paperwork filed with the court to initiate and respond to a lawsuit

• complaint

• answer

• cross-complaint

• replt

complaint

a document a plaintiff files with the court and serves on the defendant to initiate a lawsuit

• names parties to the lawsuit

• alleges facts and the laws violated

• asks for a remedy to be awarded by the court

answer

must be filed by the defendant, admitting or denying allegations

• if allegations are admitted, a judgement is entered and case closed

• if no response, default judgement is entered (siding with the plaintfif)

affirmative defense

defendant introduces new facts or evidence to excuse or reduce their civil or criminal liability

• “even if the plaintiff's claims are true, i am not responsible”

cross-complaint

a document filed by the defendant against the plaintiff to seek damages or some other remedy

• defendant = cross-complaint

• plaintiff = cross-defendant

reply

filed by the original plaintiff; serves as an answer to the cross-complaint

intervention

allows individuals or entities with a vested interest in the lawsuit to intervene

consolidation

an act of a COURT to combine 2+ separate lawsuits into one if they are stemming from the same fact situation that is filed against the same defendant

class action

a group of plaintiffs with common claims collectively bringing a lawsuit against a common defendant

• must be certified by court

statute of limitations

establishes the period during which the plaintiff must bring a lawsuit against the defendant

• period begins to run at the time plaintiff first has the right to sue the defendant

types of discovery (pre-trial)

• deposition

• Interrogatories

• copies of all relevant physical and mental exams

• production of documents

deposition

oral testimony given by a party/witness prior to trial (under oath)

• preservation of evidence in case deponent dies, is ill, or unavailable for court

• can be used to impeach the testimony of a party/witness

Interrogatories

written questions submitted by one party to the other in a lawsuit

• parties are required to answer under oath and within a specified time

motion for judgement on the pleadings

a party alleges that if the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit

• either party can file the motion

• the judge cannot consider any facts outside the pleadings

• if they think there is enough in the pleadings to decide

motion for summary judgement

a party alleges to factual disputes to be decided by the jury and the judge can apply the proper law to the undisputed facts and decide the case

• either party can file the motion

• decided prior to the trial by the judge, supported by the pleadings, evidence, and affidavits

• don’t need any more evidence

carey vs. mcdonalds corporation (2018)

• victim on mcdonald’s property was beaten and later died

• the victim’s parents later sued for negligence

• issue: should mcdonalds be granted summary judgement>

• decision: supreme court held defendants are entitled to a jury trial in a federal court and mcdonalds had no duty of care and thus not negligent

settlement conference (aka pre-trial hearing)

facilitates the settlement of a case without a trial

• informal and held in judge’s chambers

• used to identify major trial issues and relevant factors when no settlement is reached

• more than 95% of cases are settled before going to court

trial phase of litigation

1. jury selection

2. opening statements

3. the plaintiff’s case

4. the defendant’s case

5. rebuttal and rejoinder

6. closing arguments

7. jury instructions, deliberation, and verdict

8. end of judgement

voir dire

to speak the truth; the process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions

preemptory challenges

permits a party to remove a potential juror without cause; each party gets a set amount

opening statements

each party’s attorney makes a statement that summarizes the main factual and legal issues