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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.