Studied by 19 people
Sources of Law
A body of enforceable rules governing the conduct of individuals and businesses. Duties and Rights coexist; no right exists without a corresponding duty. The function of law is to create order and structure; establish individual rights
U.S. Constitution/Constitutional Law
-written document selting forth structure of the government and its relationship
-Provides constitutional law
Statutory/Codified Law
-statute/code-written rules enacted by governments
ex. U.S. Tax Code-federal statutory/codifed law penal codes/criminal codes- state statutory law
A federal statute applies to all states; a state statute applies only within the state’s borders.
No federal or state statute may violate the U.S. Constitution.
Building codes- local/ city/ village statutory law
Case Law
The rules of law set forth in court decisions.
Case law interprets statutes, regulations, and constitutional provisions, and governs all areas not covered by statutory or administrative law.
Can be either federal case law or state case law.
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Precedent:
A new rule of law stated in a court/court opinion .
Stare Decisis
-principle that courts must adhere to precedent if similar situation arises in the future
-You build on the precedent for your case
Administrative law:
- The body of rules, orders, and decisions issued by federal, state or local administrative agencies.
another source of law
ex. IRS
Legal Reasoning
The analytical thinking used by a judge in a court opinion; Achieved by asking the following IRAC questions:
Issue:
What are the key facts and issues?
spot the issues correctly
Rule:
What rule of law applies to the case?
Application:
How does this rule of law apply to the particular facts and circumstances of this case?
Conclusion:
What conclusion should be drawn?
“Plaintiff”
brings the action
“defendant”
responds to the charges
Jurisdiction:
The court’s power/authority to decide a case. \n
Original Jurisdiction
the court that conducts ‘first findings’ in a case; trial courts usually are courts of original jurisdiction
-where case originates
General Jurisdiction:
refers to a court with broad authority to hear and try a variety cases
Limited jurisdiction Court
court with authority to hear cases involving specific subject matter
Appellate jurisdiction
courts with authority to review lower court decisions for errors
on appeal, the court can affirm, reverse, or remand for further proceedings
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Limited Jurisdiction Courts:
courts with jurisdiction over certain types of cases
ex.Family court,Immigration,Small Claims,Traffic Court, Turenile Court
General Jurisdiction (trial courts):
-Cases of general nature
-Civil and criminal divisions
Appellate Courts:
appellate courts do not conduct new trials but rather review records of the lower court’s decision
Highest State Court (NY Court of Appeals)
-decisions usually final except where decision can be appealed to U.S. Supreme Court
- In NY, highest state court is NY Court of Appeals
Federal Court System
limited jurisdiction at the federal level
ex. U.S. Bankruptcy Court, U.S. Tax Court
U.S. District Courts
general jurisdiction federal courts
ex. Constitutional questions Violation of federal Law
Diversity of citzenship matter is over $75,000
Delware or New York
U.S. Circuit Courts
Appellate courts organized into 13 circuits
Hears appeals from the federal district courts located within their respective judicial circuits
Most decisions are reviewed by panels of 3 judges
U.S. Supreme Court:
Decisions by 9 justices are the final authority on federal and state cases
Writ of certiorari: requires that at least four justices agree the case merits the Court’s review
-about 100 case per year \n
What is the U.S. Constitution?
A written document establishing the structure of the government and its relationship to the people
-begins with preamble- “We the People”.
1. Establishes the Structure of the Federal Government
3 Branches:
The legislative Branch (i.e., Congress which consists of the House and Senate) creates law
The executive Branch (i.e., the President, Vice-president and the Cabinet) enforces the law
Judicial Branch (i.e., the Supreme Court and the other federal courts) interprets the law.
Protection of Individual Rights
-government (or entity of government) can engage in actions that impact constitutional
Freedom of Speech
Covers oral, written or symbolic speech (actions)
Fully protected speech:
speech that government cannot prohibit or limit
-ex. Political speech pro/con candidate, law, or government policy
-Government can pass a content-neutral law to address the secondary problem, such as crime, but cannot suppress the message
Limited protection speech
government may limit time, scope, or manner
Offensive speech
-”offends many members of society”
-Federal communications Commission-can limit content (violence, language, subject matter) and require warnings
Commercial speech by a business
Adverting
Ex. Alcohol ads
Gambling ads
Cannabis ads
Tobacco Products
Student speech
may be limited cannot cause substantial disruption to leaning environment
Ex. Public School
Unprotected speech
not entitled to Constitutional protection and can be prohibited
ex. defamation- untrue statements communicated to third parties causing harm
Dangerous speech
“fire in crowed movie theater”
-to incite panic
-true threat
-hate speech? - not protected speech but hate crimes/where derogatory directed at particular group) accompanied by criminal actions are unprotected forms of speech
Establishment Clause
-Prohibits government from establishing a government- sponsored religion- government cannot show favoritism or promote one religion over another
ex. holiday displays
Free Exercise Clause
prohibits the government from restricting anyone’s legitimate exercise of his religious beliefs (except where public welfare may require government action)
**Crimes-**Overview
A crime is a violation of law that is punished by a government.
-violation of a public duty
-person accused of crime presumed innocent until state produces enough evidence to convince jury beyond reasonable doubt of guilt
Violations
least serious -usually punishable only by fine
Misdemeanors
more serious- potentially punishable by up to a year in prison
Felonies
most serious - potentially more than 1 year in prison
Mental state
either general or specific intent.
-Specific intent crime “with intent to ….” contained in the definition
Prohibited conduct
description of the acts or actions that are prohibited; explains the prohibited conduct
Larceny
Taking another’s personal property with intent to deprive owner of property.
Robbery
Taking property from the victim’s presence by force or threat.
Burglary
Unauthorized entry of a building with intent to commit a crime.
White Collar Crimes
Usually involves fraud, deceit, or trickery without physical violence
Bribery
The act of giving money, property, or a benefit to a person to influence their judgment.
-Bribery of Public Official
-Commercial Bribery (kickback or payoff)
Forgery
making or material altering of a written instrument with intent to defraud (that attempts to create or change a legal liability of another)
Embezzlement
the fraudulent taking of property by the person to whom the property was entrusted.
Criminal Fraud/False Pretenses
obtaining title to property through deception or trickery
Mail Fraud/Wire Fraud/Internet Fraud-federal law prohibits the use of the mail or wires (or the Internet) to defraud another person. Ex: selling fake Rolex online saying its real
-the maximum penalty is 20 years in prison
Money Laundering
it is a federal crime:
To knowingly engage in a money transaction through a financial institution involving property from an unlawful activity
-Financial institution includes - banks, casinos, car dealerships, checking cashing business, insurance brokers, stock brokers etc.
For a financial institution to fail to report a cash transaction in excess of $10,000
Defenses to crimes
-excuse by the accused to lessen responsibility
-burden rests on the accused
Infancy
most states do not impose full criminal liability on those under age 18
Insanity
requires expert medical proof that the accused suffers from a mental disease
Justification/Self Defense
may respond with equal force to an imminent threat; have a duty to retreat except in own home
Fourth Amendment
Protects individuals and businesses from unreasonable searches and seizures
Search and seizure of evidence must be pursuant to a valid search warrant which is issued to a government agent upon showing probable cause to believe a crime has been committed.
Exceptions to warrant requirement
Plain view
1) Plain view
2) Emergency circumstances
3) Incident to arrest
4) Voluntary search
5) Motor vehicles
Fifth Amendment
protects against self-incrimination
Self-Incrimination
Cannot be forced to be a witness against yourself; applies to individuals only, not businesses.
Miranda Rights
Requires certain warnings be given to those who face interrogation while in custody.
Tort
is a civil wrong that interferes with a person or property
A crime violates a public duty, and a tort is a violation of a private duty; the same act can be a crime and a tort.
Intentional Infliction of Emotional Distress
Outrageous conduct which produces mental anguish to the harmed individual
Conduct must be “extreme and outrageous” and “beyond all bounds of normal decency”
Not always successful
Invasion of Privacy
Protects the right to be left alone
3 distinct forms:
Intrusion into the Plaintiff’s Private Affairs
Public Disclosure of Private Facts
Commercial misappropriation – use of another’s name, likeness, or image for commercial advantage without their permission
Product disparagement
False statements made about a product or business or service
Commonly occurs via online sites that display ratings and review
Negligence
Harm caused by another person’s failure to exercise due care. Largest category of tort law
Harm results from the careless behavior of another
Does not require proof of any intent to harm
Same 4 Elements must be proven in any negligence case
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