Bus Law Prof Hackney Gonzaga University Exam 1

Jurisprudence

Practical Wisdom or Common Sense; a system or body of law

4 Jurisprudential Schools

Historical, Realist, Positivst, Natural Law

Historical Jurisprudential School

Law expresses experience of the people- Karl Friedrich von Saingny

Realist Jurisprudential School

Law should do greatest good for greatest number-Oliver Wendle Holmes, Jr. (Law is what the law does)

Positivist Jurisprudential School

Gives up freedom for security. Concerned with self-preservation-Thomas Hobbes

Natural Law Jurisprudential School People

A law should be reasonable, publicly disclosed, and must be for common good-Cicero, Aristotle, Thomas Aquinas, John Locke

Natural Law Jurisprudential School Ideas

"An ordering of reason, promulgated by the person in charge of a community for the common good."-Aquinas

•All law must(should) be reasonable •All law must(should) be publicly disclosed

•All law must issue from someone with authority.

•All law must (should) be for common good, not for self interest

Types of Law According to Aquinas

Eternal Law, Divine Law, Natural Law, Human Law

Eternal Law--Aquinas

God's providential ordering of natures to their ends (God's Law)

Divine--Aquinas

For Christians this would be the 10 commandments, how God's work is revealed (Love God and love your neighbor)

Natural Law--Aquinas

Inner Voice/ Part of nature as a human

Human Law--Aquinas

Laws enacted by human political entities. "Human law should never violate natural law.

Declaration of Independence 1776;

Written mainly by Thomas Jefferson, it is in the form of a criminal indictment (charges brought against King George)

The United States Constitution 1789;

Adopted from James Madison's Virginia Plan. Federalists (John Jay, James Madison, Alexander Hamilton) all wrote in favor of its adoption.

4 Powers of the Constitution

Delegated Powers, Shared Powers, Police Power, Prohibited Powers

Delegated Powers--Constitution

Powers expressly granted to the national government (Declaring war or establishing currency)

Shared Powers--Constitution

Powers held by both state and national governments (the grant of power to the national government to impose taxes did not destroy state power to tax)

Police Power--Constitution

Power to govern; power to adopt laws for the protection of the public health, welfare, and safety.

Prohibited Powers--Constitution

Prohibits state and Federal Gov. from doing certain things (Ex Post Facto Laws-make criminal an act that has already been committed but was not criminal when it was committed)

Preemption

Federal Government's superior over state law on the same subject area (minimum wage, trans-bathroom laws, marriage equality)

Articulated Powers

Article 1 section 8 lays out 18 articulated powers for which Congress has to follow.

Commerce Clause

The most important business clause. "Power to regulate commerce with foreign nations, among the several states, and with Indian tribes."

Affectation Doctrine

Expanded authority of federal government in regulating interstate commerce (A state cannot impose a higher tax on goods imported from another state than it imposes on the same kind of goods produced in its own territory)

Due Process

Gov't can't deprive you of "life, liberty, or property without due process of law." Because of 5th & 14th ammendment

Substantive Due Process

When government affects your rights; the substance of what is done must be fair

Procedural Due Process

How a thing is done must be fair; requires a notice and hearing

Imminent Domain Due Process

Government has to pay you if they take your land

Privileges and Immunities Due Process

that entitles a person going into another state to make contracts, own property, to the same extent as citizens of that state.

14th Amendment

Equal Protection

Have to have a basis to treat people, but can still treat people differently.

Rational Relations (Judicial tests for interpretation of 14th Amendment Equal Protection)

the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest

Heightened Scrutiny (basis of sex) (Judicial tests for interpretation of 14th Amendment Equal Protection)

the law is unconstitutional unless it is "substantially related" to an "important" government interest

Strict Scrutiny (basis of race color religion, age) (Judicial tests for interpretation of 14th Amendment Equal Protection)

law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest

4th Amendment

Protects against unreasonable search and seizures

Exigent Circumstances

means you can enter a structure without a warrant if; imminent danger, evidence faces imminent destruction, or a suspect will escape

Plain View

you can see it

Hot Pursuit

if a delay would endanger lives, or lead to an escape

Exclusionary Rule

If illegal search without warrant, evidence is dropped

Fruit of the Poisonous Tree Doctrine

Once a search is completed by the warrant or becomes illegal, everything collected afterwards is excluded. "Wong Sun - Search for cocaine, found heroin - search went bad at not finding cocaine"

Self Incrimination

Compelled to self-incriminate by the police, in violation of 5th amendment. Business people have 5th amendment rights but not the same as a person.

5th Amendment

Can't be forced to testify for yourself; constitutional protection against self-incrimination; also guarantees due process

Grand Jury

23 People

Petit Jury

Try you for murder, 12 people or 6 on a district court

Double Jeopardy

Can't be charged twice for the same crime

Miranda Warnings

Warnings required to prevent self-incrimination in a criminal matter

6th Amendment

Can confront a witness, right to a lawyer, right to speedy, public trial by jury - leads to a lot of cases being dismissed.

Pro Se

Acting as own lawyer

Speeding Decriminalized

Speeding was decriminalized so that state doesn't have to provide a lawyer

7th Amendment

Right to a Jury Trial - only based in law

8th Amendment

Cruel and Unusual Punishment, Excessive Bail (has to be proportional to the crime)

Recognizance

Promise to return if released on bond

9th Amendment

Not limited to enumerated rights

Enumerated Rights

Written specified rights such as speech, press, assembly, search and seizure

Penumbral Rights

Not specified, laws like privacy that came from Roe V. Wade. Umbrella rights - the rights that fall under the umbrella of the basic given rights

Common Law

Court created law found in USA, England, India, Canada

Tenth Amendment

Power Reserved to states/people. Not given to the federal or restricted from states, state and people get everything else.

Criminal Law

Crimes

Civil Law

Tort and Contract

Crime

Breach of public duty imposed by law. Violation of the law that is punished as an offense against the state or government

Two types of Crime:

1) Common Law Crime

2) Statutory Crime

A crime consists of two elements:

1) A mental state

2) an act or omission

Mental State (mens rea)

Mental action. Does not require an awareness or knowledge (dumping waste without a permit but not knowing that you needed a permit is still a crime)

Action/Omission "actus rea"

- physical act or omission

General Intent

You intended the natural consequences of your actions. Logical/Probably

Jurisdiction

Power to hear and decide a case

Responsible Officer Doctrine

Held responsible for supervisional authority

Corporate Law

People inside of corporation criminally responsible for actions of the company

Conspiracy--Crimes

Agreement between 2 or more persons to commit an unlawful act; requires a predicate act

Attempt--Crimes

Actually trying to commit crime

Money Laundering--Crimes

Taking money from one wrongful source then running them through legitimate accounts in order to conceal it

Racketeering--Crimes

Directed towards mafia, the act of offering a dishonest service "racket" to a person to solve a problem

Bribery--Crimes

Act of giving money, property, or any benefit to a particular person to influence that person's judgment in favor of the giver

Extortion--Crimes

Illegal demand by a PUBLIC OFFICER acting with apparent authority (a health inspector threatening to close down a restaurant on a false sanitation law charge unless the restaurant pay the inspector money)

Blackmail--Crimes

Extortion demands made by a NONPUBLIC OFFICIAL (threatening to damage someones personal or business reputation)

Lobbying--Crimes

Tell our officials what they can do

Counterfeiting--Crimes

Making with fraudulent intent, a document or coin that appears to be genuine but is not because the person making it had no authority

Forgery--Crimes

Fraudulently making or alerting an instrument that apparently creates or alters a legal liability of another

Perjury--Crimes

Knowingly giving a false testimony in a judicial proceeding after having been sworn to tell the truth

Uttering/Bad Checks--Crimes

Crime by statute. Crime to pass a bad check with intent

Embezzlement--Crimes

Crime against someone who has been entrusted (Accountant stealing money)

Theft--Crimes

Stealing without someone trusting you with there money

Obstruction--Crimes

Having to maintain papers

Larceny--Common Law Felony

Wrongful or fraudulent taking of the personal property of another by any person with fraudulent intent (Shoplifting)

Robbery--Common Law Felony

Taking of personal property from the presence of victim by use of force or fear

Burglary--Common Law Felony

Breaking and entering during the night into the dwelling with intent to commit a felony

Arson--Common Law Felony

Willful and malicious burning of another's' dwelling. - open flame

Riots and Civil Disorder--Common Law Felony

Form of disturbance caused by a group of people

Product Liability--Common Law Felony

Suing producers of products, which ultimately ends up increasing price on product

Tort

Civil wrong that interferes with one's property or person. Breach of private duty imposed by law. Only some torts are crimes. Based on a lack of prudence

Prudent

- practical wisdom(common sense). Only liable of your negligent

Gross Negligence

Going too fast tire blows out hit people

Willful and Wanton Misconduct

No excuse for behavior

Three Theories of Tort

Intentional, Negligence, Strict Liability

Intentional--Tort

Theory These are also crimes. Civil wrongs that result from intentional conduct--CRIMINAL

Negligence--Tort

Failure to exercise due care under the circumstances in consequence of which harm is proximately caused to whom the defendant owed the duty of care

Strict Liability--Tort

A civil wrong in which there is absolute liability because of the inherent danger in the underlying activity (Example: explosives) Liability without regard to fault

Strict Liability 3 Main Points

Automatically liable if 1 thing happen Does not matter how careful you are

•*Maintenance of hazardous conditions (making a pond that breaks and floods neighbors, dynamite contractors)

•*Harboring wild animals - every dog gets one free bite, wolfdog your liable on first bite

•*Product liability- 99% burden of proof on the manufacturer- just have to prove the defect (Car design, design of product causes a person to hurt themselves)

Assault--Intentional Tort

intentional conduct that threatens a person with a well founded fear of imminent harm. NO CONTACT NECESSARY- know some kind of danger is coming

Battery--Intentional Tort

Intentional or wrongful touching of another person without their consent. Everyone has right to their own person. Non privileged contact. Hit with no warning

False Imprisonment--Intentional Tort

Intentional detention of person without that persons consent (Civil side of kidnapping)

Shopkeeper's Privilege--Intentional Tort

Right of store owner to detain a suspected shoplifter based on reasonable cause for a reasonable time without the possibility of false imprisonment.