BUL5832 Exam 1 - Lecture Notes

Substantive law

The creation, definition, and regulation of legal rights and duties.

Cause of action

The claim needed to proceed with litigation

Procedural law

The rules for enforcing those rights that exist by reason of

the substantive law.

Dismissed without prejudice

Lose money, but can still make another claim later on

Dismissed with prejudice

The case is dismissed permanently; can never bring back a lawsuit on the same subject in the future

T/F: Substantive law is more important than procedural law

F: Procedural and substantive law are equally important

T/F: Judges have discretion over whether to dismiss a case on procedural grounds

F: If something is against procedural law the judge MUST dismiss the case

Criminal law: who are the parties?

Prosecutor and defendent

Criminal law: what are the remedies?

Incarceration, criminal penalties, monetary penalties

Civil law: who are the parties?

Plaintiff and defendent

Civil law: what are the remedies?

Damages, injunctions

T/F: Civil law involves private actions

T

T/F: Some areas of law are both criminal and civil

T: Some areas have both a criminal and a civil side

Private standing

A statute provides that an individual can sue for a criminal action

List the 3 examples of law with private standing to sue discussed in class

1. Antitrust law

2. Securities Acts of 1933 and 1934

3. Civil Rights Act

T/F: All areas of law with both a criminal and civil side include a private standing to sue

F: There can be a civil/criminal element without a private standing to sue - ex. US tax laws

T/F: Common law is judge determined law

T

List the common law countries/areas

The UK, the English Commonwealth, the US

Mixed jurisdiction

Part common law, part civil law

Which 3 areas have mixed jurisdiction?

1. South Africa

2. Louisiana

3. Quebec

Common Law

Judge-determined law

Civil Law

Code based, statutory law

Where does civil law originate from?

Justinian's Code in Roman Law

Which 2 areas does modern civil law stem from?

1. Germanic (Germany)

2. Franco-romantic (France)

T/F: The differences between different civil law countries have diverged over time

F: The differences between different civil law countries have CONVERGED over time

T/F: In the US, all 50 states have adopted the UCC

T

T/F: Civil and common law systems often result in the same outcome

T

Stare decisis

Stand by the prior decision

What are the 2 types of stare decisis?

1. Mandatory stare decisis

2. Persuasive stare decisis

Mandatory stare decisis

The lower courts are required to stand by the decisions of the higher courts in the same circuit

Persuasive stare decisis

The judge chooses to use a prior decision that he is not officially bound to

Which state is the corporate law state?

Delaware

Public law

Statutory law that applies to everyone equally

T/F: the following are all examples of public law - criminal law, tax law, securities law, commercial law

F: Commercial law is private law

T/F: The following are all examples of private law - contract law, tort law, commercial law, property law

T

T/F: Constitutional law and administrative law are both examples of public law

T

Hierarchy of law

US Constitution --> Treaties and Federal Statutes --> Federal Administrative Law --> Federal Common Law --> State Constitution --> State Statutes --> State Administrative Law --> State Common Law

Federal preemption

Anything the Federal government does trumps the State level

Deference principle

Courts should side with the administrative agency over the private party, unless the private party has overwhelming evidence

Chevron principle

Courts should side with the administrative agency over the private party, unless the private party has overwhelming evidence

T/F: The Chevron principle is an example of administrative law

T

In a counter-complaint, who has the burden of proof?

The defendent

Generic defenses

Defenses that apply to all areas of law

What is the burden of proof under civil law?

Preponderance of evidence (51% or higher)

What is the burden of proof under administrative law?

Clear and convincing evidence (60-65%)

What is the burden of proof under criminal law?

Beyond a reasonable doubt (95% or higher)

What are the 3 directives under the Litigation System?

1. Sue for as many things as you can

2. Have a cause of action

3. Sue for as much money as you can

Psychological anchor

Many times the jury will come up with an average between what you ask for and what they think you deserve

What are the four components of the pleadings process?

1. Summons

2. Complaint

3. Answer

4. Reply to answer

Summons

Says when you need to be in court

Complaint

Says why you are being sued

What are the 3 components of the summons/complaint?

1. Allegations of fact

2. Causes of action

3. Remedy plaintiff is seeking

Equitable remedy

Either injunction or specific performance

T/F: an equitable remedy is considered extraordinary

T

Legal remedy

Monetary damages

T/F: A legal remedy is considered ordinary

T

T/F: You cannot collect interest on a judgment amount

F: You CAN collect interest on a judgment amount

Writ of mandamus

A specific performance order for the government to perform something

American rule of legal fees

In the US, each party pays their own legal fees

T/F: If a clause in your contract goes against the American rule of legal fees, courts will enforce it

F: Such a clause is unenforceable

Penalty clause

A clause stating that the losing party will pay some or all of the winning party's legal fees - Unenforceable if in a contract

T/F: England follows the American rule of legal fees

F: In England, the losing party has to pay at least some of the legal fees of the winning party

Lodestar effect

In NY, legal fees are multiplied as a punishment to the losing party

Service of process

You must follow the specific rules to deliver the summons/complaint to the defendant

T/F: Service of process is part of procedural law

T

Personal service

The most preferred way to serve process where the papers physically touch the person being served

Process server

An individual trained in process serving who provides an affidavit proving the service of process

T/F: Failure to properly serve violates the US Constitution

T: Failure to serve violates the due process clause of the US Constitution

What are the 2 options for Service of Process in International litigation?

1. Hague Service Convention

2. Dual Service

Hague Service Convention

International convention to serve process under French law

Dual service

Serve process based on both American law and foreign law

Creative service process

When no other acceptable methods can be used, the court will approve an alternative means of service

T/F: The answer must state the truths and non-truths of the complaint

T

T/F: If the defendant fails to address a fact, the truthfulness of the fact will be determined by the jury in court

F: Failure to answer a complaint means the facts are accepted as true

Affirmative defense

A fact other than those alleged by the plaintiff/prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct

Statute of frauds

Requirement for certain contracts to be in writing

Statute of limitations

Requirement for breach of contract to be reported within a specified time period

Counter-complaint

Defendant switches all of the blame onto the plaintiff

T/F: The burden of proof is on the plaintiff for counter-complaints

F: The burden of proof is on the DEFENDANT for counter-complaints

Impleading

When a third party / outside party is brought into the pleadings

T/F: Appeals can occur at any stage of the trial

T

What are the 3 types of motions?

1. Judgment on the Pleadings

2. Summary Judgment

3. JNOV

T/F: Appeals can be brought on issues of law and on issues of fact

F: Appeals can be brought only on issues of law

Judgment on the Pleadings

Motion for a judgment based on the pleadings alone (before trial)

Summary Judgment

Motion for judgment during the trial

T/F: Both the plaintiff and the defendant can motion for a summary judgment

T

JNOV

Judgment notwithstanding verdict, aka contrary to the jury's verdict (after trial)

Reverse

Go against the decision

Affirm

Agree with the decision

Remand

Partially reverse/partially affirm - Send the case back to the trial judge for reconsideration

Dual court system

The federal government has its own court system, as does each of the 50 states and the District of Columbia

District courts

General trial courts in the Federal System

T/F: All states have at least one district court

T

T/F: There are 9 judicial circuits in the Federal System

F: There are 12 judicial circuits in the Federal System

Court of Appeals

Hears appeals from district courts, administrative agencies, Tax Court, and Bankruptcy Court

US Court of Appeals for the Federal Circuit

Hears primarily patent and trademark cases

Supreme Court

The highest court in the US

T/F: There are 9 supreme court judges

T

Original jurisdiction

The right to hear a case first

T/F: The supreme court never has original jurisdiction

F: In certain cases, the Supreme Court can have original jurisdiction