LEGL 2700 Exam 1 content

Law

-Glues together diverse peoples of different backgrounds into large, organized groups

-Laws are rules laid down by the state and backed up by enforcement (i.e police and court system)

The Rule of Law

-Laws that are made are generally & equally applicable to everyone

-It is an ideal rather than complete fact

-Mostly followed by wealthy and developed countries

Property

-Aka "ownership" or "legal fence"

-The right to turn to public authorities to help keep others from interfering with what you own

Public Property

public resources owned by gov't (i.e roads, monuments)

Private Property

individually owned (i.e house, car)

Common Property

resources like land that more than one individual owns jointly.

Jurisprudence

philosophies that explain origin of law and its justification

Sociological Jurisprudence

law should change to meet developments in society

Legal Realism

law should extend beyond the paper and meet the needs of real life situations, i.e. Atlanta's I-285 speed limit is 65mph, but everyone goes 80mph

Classifications of Law:

1) Common law & Civil law

2) Public & Private law

3) Civil law & Criminal law

4) Substantive law & Procedural law

Common law

emphasizes the role of judges in determining the meaning of laws and how they apply. Based off of English Parliament.

Civil law

relies more on legislation than judicial decisions to determine what the law is.
They do not make law nor do their judges think themselves obligated to follow prior judicial decision (precedents)

Public law

includes matters that involve the regulation of society.

constitutional, administrative, criminal law

Private law

covers those legal problems and issues that concern your private resource relationships with other people.

property, tort, & contract law

Civil cases

include suits for breach of contract or tort cases, such as personal injuries.

Criminal cases

involve a representative of gov't attempting to prove the wrong committed against society and punish them with the court system.

Substantive law

defines the legal relationship of people with other people or between them and the state.

Procedural law

deals with the method and means by which substantive law is made and administered.

Ex: the time allowed for one party to sue another and the rules of law governing the process of the lawsuit

Federal law

-includes the Constitution

-legislation passed by Congress (aka "acts" or "statutes")

-Ex: Clean Air Act

State law

-starts with state constitution

-then statues or acts adopted by state legislature

-then regulatory law of the state administrative agencies

-then the law in counties and cities called ordinances

Judicial decisions or Case law

-decisions that interpret relevant constitutional, legislative, and regulatory laws

- Judges write their decisions, called opinions

-Opinions are collected and published in book volumes known as reporters and become precedents for future cases

Stare decisis

doctrine of prior precedents. Ensures predictability in law.

Holding

 info about issue before court

Dicta

commentary court makes on case

Constitutional relativity

the idea that courts should understand the meaning of the Constitution relative to the times in which they interpret it

Originalism

opposite of constitutional relativity. Courts should interpret Constitution with its original intentions

Conflicts of law

In tort law, rules applies the law of the state where the injury occurred.

Should clarify in contract which state problems should be resolved in

Sanctions

used against a person who has failed to comply to law.

-CRIMINAL: death, imprisonment, fine, removal from office, disqualification from running or voting

-BREACH OF CONTRACT: sue for dollar damages (compensatory and consequential damages), other party may rescind/cancel contract, specific performance (an order by the court commanding a bargain as agreed)

-TORTIOUS CONDUCT: money damages-- punitive (aka exemplary) damages

-VIOLATING STATUTES & REGULATIONS: similar to above, fines, damage awards

Tort

civil wrong other than breach of contract.

3 types of tort:

1) Intentional tort- require plaintiff to prove the defendant intended to cross the boundaries protecting the plaintiff. (i.e assault, battery, etc)

2) Negligence- requires plaintiff show that the defendant injured what was proper to the plaintiff through unreasonable behavior

3) Strict liability- prove only the defendant has injured something proper to the plaintiff

Remedy

right of an indiv to take another indiv's resources because that person has failed to comply with law

Corporation

business chartered by the state to do business as a legal person in a certain form of organization.

-owned by shareholders

-board of directors run the business

-managers in charge of day-to-day

Corporate governance

legal rules that structure, empower, and regulate the agents of corporations and define their relationship to the owners

Trial court

1 judge

law and facts

Appellate court

3-5 judges

questions of law

called justice if highest appellate review in the state

Jurors

-fact-finding body

-6th & 7th amendment guarantee right of trial by jury

-grand jury for criminal

-petit jury for criminal and civil

Petit jury

trial jury that returns a verdict in criminal and civil cases

fact finder

-consists up to 12 persons (most have 6)

-decisions must be unanimous

Lawyers

Serves in 3 capacities:

1) Counselor

2) Advocate

3) Public servant

Organization of Court System

-2 major courts: federal & 50 state courts

-Federal: trial courts, courts of appeals, supreme courts

Subject matter jurisdiction

power over the issues involved in the case

-for any court to hear and decide a case at any level, it must have this

-jurisdiction can be limited to subject matter, amount in controversy, and area in which party lives

State courts

-Governed from 3 sources: state constitutions (framework), state legislature (adds to body of framework), other legislature (rules of procedure)

-2 types:

1) Trial/Superior/Circuit/District court

2) Appellate court- only deal with law, not facts. Courts of appeal and supreme court.

Small-claims court

handles much of the litigation between businesses and its customers. Lawyers are not required. Max of $25,000

Federal Courts

extends to matters involving questions of federal law, US as a party, controversies among states, and diversity of citizens of different states.

2 types:

1) District courts- the trial courts of the fed judicial system. At least one in each state & in DC. Most significant federal litigation begins here.

2) Appellate courts- 12 US Courts of Appeal + 1 special Court of Appeals for Federal Circuit (located in DC)

Questions of federal law

-may be based on issues arising out of the US Constitution or out of federal statutes

-any amount of money may be involved

Diversity of citizenship

requires that all plaintiffs be citizens of different states from all defendants.

-If plaintiff and defendant are from the same state, no federal jurisdiction

-Fed court have a jurisdictional amount of more than $75,000

Federal Rules of Civil Procedure

provide details concerning procedures to be followed in federal court litigation

Writ of certiorari

-granted if 4/9 justices vote to take the case

-request by losing party in court of appeals for permission to file an appeal with US Supreme Court

Judicial review

power to review laws passed by legislative body and actions taken by executive branch and to declare them unconstitutional and void.

Marbury v Madison(allowed this)

Judicial restraint

-precedents matter

-power should not be used except in unusual cases

-change in society should result from political process

Judicial activism

-primarily Democratic justices

-believe that courts have a major role to play in correcting wrongs in our society

Litigation

-helps business community resolve actual disputes

Plaintiff

party who files a civil action

Defendant

being sued in civil or a person in criminal

Counterclaim

when defendant wants to sue the plaintiff

-defendant = counterplaintiff

-plaintiff = counterdefendant

Third-party defendants

brought by defendant to complete the determination of a controversy

Standing to sue

plaintiff establishes that he/she is entitled to have the court decide the dispute

Plaintiff must allege that:

1) that the litigation involves a case or controversy

2) a personal stake in the resolution of the controversy

Personal jurisdiction

-the power of a court over the parties involved in the litigation process

-obtained when plaintiff files the suit

-defendant usually obtains by a summons

Long-arm statutes

allows state court to obtain jurisdiction in civil actions over defendants who are beyond the border of the state provided the defendants have minimum contact with the state sufficient to satisfy due process.

Class-action suit

1+ plaintiffs file suit on their own behalf and on behalf of all other persons who may have similar claim.

-involve matters where no one member of the class has sufficient financial interest for litigation

-all members have to be given fair notice of lawsuit

Pleadings

legal documents that are filed with a court to begin the litigation process

complaint, answer, counterclaim, reply

Complaint

plaintiff filing a pleading with court clerk. Contains allegations and a statement or request of the relief sought

Answer

defendant’s response to a complaint in the form of a written pleading

Default judgement

if defendant doesn't reply to a complaint, the court may order this and grant the plaintiff the relief sought by the complaint

Discovery

-ensure both sides are aware of the case details

-ensures the results of lawsuits are based on the merits of the controversy and not on the ability or skill of counsel

-can encourage settlement of the lawsuit

Interrogatories

series of written questions presented to opposing parties (i.e. List any repairs to carpet. When was the apartment built? Who did the repair?)

Request for production of documents

either party asking the other to produce specific documents

Depositions

Lawyer orally asks questions of possible witness (most revealing action and documented by court reporter)

Request for an admission

requesting the other party to admit that certain issues presented in the pleading are no longer in dispute (narrows some issues and makes settlement more likely)

Motions

When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a motion with the court.

Statute of limitations

move to dismiss a suit when a matter of law prevents the plaintiff from winning the suit

Judgement on the pleadings

motions which asks the judge to decide the case based ONLY on the complaint and its answer

Summary judgement

motion asking the judge to base a decision on the pleadings and on other evidence (open and obvious) adding evidence

Rule 56 affidavits

evidence in the form of sworn statements

Typical pretrial motions

Statute of limitations

Motion to dismiss

Motion for judgement on pleadings

Motion for summary judgement

Motion: frivolous litigation/rule 11

• Rule 56 affidavit: evidence -> sworn statements

Rule 11

-terminate case if lawsuit lacks merit, filed to delay or harass, or not grounded in law and fact

-frivolous

Trial

-when pretrial motions and negotiations have failed

-judge explains applicable law to jury

Voir dire

"to speak the truth"

-selected jurors are called into jury box and questioned

Peremptory challenge

no cause or reason needs to be given to excuse a prospective juror.

Directed verdict

"Judgement as a matter of law"

-motion by defendant if no evidence for an element, typically denied

-the court can only make a direct a verdict for one party if the evidence establishes a matter of law that the party making the motion is entitled to a verdict

Jury instructions

-following the closing arguments

-judge acquaints jury with the law applicable to the case

Burden of proof

-CRIMINAL: beyond a reasonable doubt

-CIVIL: subject to 2 standards:

• preponderance of evidence (slight tipping, believe something a little more)

• clear and convincing proof (scales of justice tilted heavily one way)

Verdict

jury's decision

-The party who is dissatisfied with the jury's verdict may file a post-trial motion with the judge seeking:

judgement notwithstanding the verdict (state court)

motion for new trial: judge messed up, do over

Appellant

When the result at trial court level is appealed, the party appealing is the:

Appellee

the successful party in the trial court

Petitioner

party initiating petition for ceritorari

Respondent

opposite person of petitioner

Brief

contains a short description of the case; a factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision.

Each party files one.

Oral argument

attorneys get limited time to explain to court their position in the case

Execution

court official (i.e. sheriff or marshal) seized property of the debtor, sells it at a public auction, and awards the proceeds to the creditor's claim.

Garnishment

a form of execution in which the debtor's wages are paid to the court, which in turn pays the creditor.

Res judicata

-civil case

-decision of the court is final and conclusive on all issues b/w parties. "it is decided"

Commerce clause

the constitutional provision that gives the power to the government to regulate business

Federalism

separation of powers between levels of government(federal, state, local)

Contract clause

-states cannot enact laws that impact rights and duties under existing contracts

-doesn't apply to fed govt

1st Amendment

1) Freedom of religion- establishment clause & free exercise clause

2) Freedom of speech- except for fighting words & obscenity. Protects symbolic speech

3) Freedom of press- except defamation (libel recovers damages resulting from defamation)

2nd Amendment

Right to bear arms

5th Amendment

-Eminent domain; takings clause

-allows govt to take private property for public use after paying just compensation

-Protects accused from being compelled to testify against self

-does not protect businesses(except sole proprietorship)

-Miranda rights

-no double jeopardy; ppl tried twice for same crime, can have both civil and criminal tho

14th Amendment

Due process & equal protection

-states that no STATE shall make or enforce any law which shall:

1) abridge the privileges or immunities of citizens of the US

2) deprive any person of life, liberty, or property without due process of law

3) deny to any person within its jurisdiction the equal protection of the laws

Due process clause

-Stop gov from acting unreasonably

-makes some of Bill of Rights applicable to states: incorporation doctrine

Equal protection clause

-Minimum rationality- a law creating different classifications will survive an equal protection challenge if it has a rational connection to a permissible state end.

-Strict scrutiny- a classification will be a denial of equal protection unless the classification is necessary to achieve compelling state purpose

-Quasi-strict scrutiny- between strict and minimum rationality. Classifications are only partially suspect or the right involved are not quite fundamental.

Grand jury

-criminal only

-only determines if enough evidence to indict someone for a crime

-not deciding guilty or innocent