BLAW 310 Exam 1 Study Guide - University of Louisiana at Lafayette (ULL) by Thomas Long

What are the sources of American Federal Law?

- The U.S Constitution

- The U.S. Code

- The Regulations

What is the constitution?

Supreme law of the land

What is the U.S. Code?

Federal statutes established by Congress

What are U.S. regulations

all the finer details not covered in the laws, written in the Code of Federal Regulations

What does Stare Decisis mean?

Let the decision stand

What is Stare Decisis?

the system of legal precedent that lower courts are bound to follow rulings of higher courts

The pros of Stare Decisis

Stability and predictability

The Con of Stare Decisis

It can take a long time to fix a bad law

What are the basic types of law?

Substantive law and Procedural law

What is substantive law?

The literal law itself. What it says, what you can and cannot do

What is procedural law?

How the law is administered, the procedures followed by law enforcement

What American courts have borrowed from England

- Stare Decisis / legal precedent

- Common law

- jury system

What Louisiana Courts have borrowed

From England - Stare Decisis

From France - Civil Code

What is common law?

Codes and statutes developed over time by judges based on other cases in a variety of circumstances

Why is Louisiana law different?

Napoleonic code

What is the Napoleonic Code?

A civil code of guiding decisions

What is Judicial Review?

The power of the court to determine whether a law is constitutional

Where does Judicial Review come from?

Marbury v. Madison(1803)

Why is Judicial Review important?

Increased the importance of the Supreme Court

the effect of marbury v madison

Courts can strike down laws that violate the Constitution

•JURISDICITION

Power of the Court

In personam

Rights against a person

In personam Jurisdiction

If you are physically present, you are subject to the state and court's jurisdiction

What is implied consent?

Consent is not given explicitly but inferred from actions or circumstances

In rem jurisdiction

THE POWER OF THE COURTS OVER PROPERTY AND THINGS

what does REM mean

It refers to property. "stuff"

What is long arm jurisdiction?

Special rule to obtain jurisdiction over non-residents

What does long arm jurisdiction require?

"Minimum Contacts" with the forum state

What is subject matter jurisdiction?

THE POWER OF THE COURTS OVER SUBJECT MATTER IT CAN HEAR

2 types of subject matter jurisdiction

Federal Court

Exclusive v. concurrent

Federal Court Jurisdiction

federal question and diversity of citizenship

Federal Question

A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Diversity of Citizens

Citizens of different states and amount in controversy more than $75K

Concurrent Jurisdiction

Jurisdiction shared between state and federal courts

What does Federal Court have exclusive jurisdiction over?

Bankruptcy, Patent, Admiralty (Supremacy Clause)

What does the state have exclusive jurisdiction over?

Divorce, Adoption, property disputes

What is standing

The right to bring suit

Criteria for standing

must have a stake in the outcome and a legal injury

What is a venue?

A place where suit can be filed

Where is a venue typically chosen?

Usually where defendant resides, where accident happened, or where contract was executed/performed

court structure

1. trial court (original)

2. appeal court

3. supreme court (discretionary)

The parties in a lawsuit

plaintiff and defendant

Who is the plaintiff?

person bringing suit; has the burden of proof

What is the preponderance of evidence?

50% + 1

Who is the defendant?

person being sued

What is the defendant entitled to?

Official notice of the action and must respond to the petition/complaint

What are the pleadings in a lawsuit?

Complaint, answer, and defenses

lawsuit 101

discovery, motion, pretrial, trial, appeal, Supreme Court

Discovery includes

interrogatories(written questions), requests for admission, requests for production, depositions

Alternative Dispute Resolution

negotiation- informal between parties

mediation- non-binding, usually with neutral party

arbitration- formal always with a neutral party

Legislative Branch

bicameral- 2 houses

House of Reps

Senate (2/state)

Legislative Powers of Congress

Tax, Interstate Commerce, Immigration, Money, Post office, lower court system, Patents, Maritime, Declare War, Raise Army/Navy, "Necessary and Proper"

Executive Branch

office of the president

selected by Electoral College

Executive branch powers

commander-in-cheif, appointment of cabinet, judges

Judicial Branch

Supreme Court

Judicial Powers

Appellate Jurisdiction - Discretionary by writ of certiorari - "Rule of 4"

Judicial Review

checks and balances

A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power

interstate commerce clause

Laws must now have "substantial relation to Interstate Commerce" to be constitutional

First Amendment

Establishment Clause- no govt religion

Free Exercise Clause- can't target specific religion

Free Speech- different restrictions

5th Amendment

no one shall be deprived of life, liberty, or property without due process

Due Process

Procedural- notice and fair hearing

Substantive- laws themselves are fair

14th Amendment

All persons entitles to EQUAL PROTECTION under the laws.

14th Amendment- 3 scrutinies

Minimal - law must have rational basis

Intermediate Scrutiny - "substantially related to a legitimate government objective (Gender, disability, Sexual orientation)

Strict Scrutiny - "Compelling State interest", narrowly tailored, least restrictive means

When is strict scrutiny used?

Fundamental rights, suspect class: i.e. race

Chevron Case

discusses the scope of Agency discretion in rulemaking:

1. did the Agency follow the APA?

2. did the regulation arise out of a point addressed by congress? Yes? Follow the statute

No? Then, was the regulation reasonable?