BLAW First exam AAAAAAAAAa

What is precedent?

Requires that judges decide current cases based on previous rulings

Developed gradually over centuries

What are the 3 branches of government?

Legislative, Executive, Judicial

Checks and Balances

Congress can overturn the president's veto with an override vote

Requires two-thirds of both the House and Senate

Administrative Agencies

There are administrative agencies at the federal level, state level, and local level.

Criminal Law

Criminal Law:

Concerns behavior so threatening that society outlaws it altogether, the government itself is the plaintiff, and is brought by the district attorney

Civil Law

Civil Law:

Regulates the rights and duties between parties, plaintiffs and individuals sue each other, person vs person

Ethics

Law is what you must do

Ethics is what you should do

Life principles are based on your values

Conformity

Adjusting one's behavior or thinking to coincide with a group standard

(Don't pad your financial statements.)

Ethical Traps

Slow down

Don't trust your first instinct

Remember your life principles

Money does not buy happiness

General Bystander Rule

You have no legal obligation to help someone in peril unless you injured the person/put them in danger

Judicial Review

Courts generally defer to an agency's fact findings and also for the interpretation of the law

Freedom of Information Act (FOIA)

FOIA has to do with your getting information from government agencies

You can get info about their budgets, how they operate, and most importantly, any information they have about you

It has to be in writing, and they have 10 days to answer

Bill of Rights

The first 10 amendments to the Constitution are known as the Bill of Rights

Commerce Clause

Gives Congress the right to regulate commerce among the states

Supremacy Clause

Constitution, and federal statutes and treaties, shall be the supreme law of the land

If there is a conflict between federal and state statutes, the federal law preempts the field, meaning it controls the issue. The state law is void

Judicial Review

The power of federal courts to declare a statute of governmental action

Flag Burning

Flag burning is a way to express yourself and hence it falls under the first amendment, and it is constitutional

Obscene speech

Not protected by the constitution, depends on where you are

Fifth Amendment

Protects people from the government overreaching in criminal and legal proccesses and guarantees their rights

Contains due process, takings clause, and eminent domain

Takings Clause

The government cannot just yoink stuff without proper cause and compensation

When the government takes property for public use, such as to build a new highway, it has to pay a fair price

Eminent Domain

Power of the government to take private property for public use

14th Amendment - Equal Protection Clause

Governments must treat people equally

Dispute Resolution

1) Litigation

2) Alternative dispute resolution

How to get into Federal Court

Federal Question Cases - a case in which the claim is based on the US Constitution, federal statute, or federal treaty

Diversity Cases - applies when (1) the plaintiff and defendant are citizens of 2 different states and (2) the amount in dispute exceeds $75,000

Deposition

Out-of-court oral testimony by a witness that will be used in court

Burden of Proof

Civil Case (Case between 2 parties) -> By a preponderance of the evidence

Criminal Case (Case between state and defendant) -> Prosecution must prove their case beyond a reasonable doubt

Alternate Dispute Resolution

Mediation - Mediator attempts to guide both parties towards a voluntary settlement

Arbitration - Mandatory, you must follow the decision of the Arbitror (a neutral third-party)

Misdemeanor and Felony

Misdemeanor - County Jail one year or less

Felony - State or federal jail for one year or more

Restitution

A court order that the guilty defendant reimburse the victim for the harms suffered

State of Mind

Voluntary Act - A defendant is not guilty of a crime if she was forced to commit it. In other words, she is not guilty if she acted under duress.

Entrapment - When the government induces the defendant to break the law, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

Conspiracy

You can still be charged with the crime of PLANNING a crime even if you didnt do nothing yet

Fourth Amendment

Prohibits the government from making illegal searches and seizures

Warrant

Written permission from a neutral officer to conduct a search. (** NOTE: they do not need a warrant if the crime is self-evident or probable cause.)

Blood vs Breathalyzer

Warrant needed for blood test

Warrant not needed for breathalyzer test

(You can refuse a breathalyzer)

Computer Privacy

In general, you have a right to privacy, with the exception of:

Websites (Search history)

Internet messages

Social media

Exclusionary Rule

Under the exclusionary rule, any evidence the government acquires illegally (or any information obtained as a result of this illegal behavior) may not be used at trial.

Fifth Amendment

Bars the government from forcing any individual to provide evidence against themself.

Miranda Rights - Prior to any questioning, the person must be warned that any statment may be used against them in a court of law, and they have a right to an attorney before being interrogated

Sixth Amendment

Guarantees the right to a lawyer at all important stages of the criminal process. If you can't afford it, the government must provide you with one.

First Amendment

Freedom of speech, assembly, religion, and press

Defamation (Libel and Slander)

Libel - Written defamation

Slander - Oral defamation

4 Elements of a Defamation Case

Defamatory statement - A factual statement that may harm someone's reputation

Falsity - It has to be false

Communicated - It has to be communicated to a third party besides the victim and slanderer

Injury - It has to actually injure your reputation

Absolute Privilege

A witness testifying in a court or legislature may never be sued for defamation. Absolute privilege exists in courtrooms and legislative hearings. (Deliberately false testimony would be perjury, but still not slander/defamation.)

Assault and Battery

Assault occurs when a defendant does some act that makes a plaintiff fear an imminent battery

Battery is an intentional touching of another person in a way that is harmful or offensive

Negligence

Is an unintentional tort.

5 elements of negligence

Duty of Due Care. The defendant had a legal responsibility to the plaintiff. This is the point from the Palsgraf case.

Breach. The defendant breached her duty of care or failed to meet her legal obligations.

Factual Cause. The defendant's conduct actually caused the injury.

Proximate Cause. It was foreseeable that conduct like the defendant's might cause this type of harm.

Damages. The plaintiff has actually been hurt or has actually suffered a measurable loss.

Invitee versus Social Guest

Invitee - right to be on the property because it is a public place or a business open to the public. The owner has a duty of reasonable care to an invitee.

Social Guest - A social guest is a typical licensee. A licensee is entitled to a warning of hidden dangers that the owner knows about.

Contributory and Comparative Negligence - Depends state to state

Contributory Negligence States

Then the plaintiff collects zero dollars

Comparative Negligence States

The court will look at what percentage each of the parties are responsible, the plaintiff will collect whatever percentage the other party was liable for

Assumption of the Risk

A person who voluntarily enters a situation that has an obvious danger cannot complain if they are injured

Ultrahazardous Activity

A defendant engaging in an ultrahazardous activity is almost always liable for any harm that results.

Data Mining

Inferring your needs and preferences from what you do online and targeting you with certain ads.

ECPA (Electronics Communication Privacy Act)

Has to do with wiretapping. Police are expected to have a valid warrant to listen in or monitor a person's phone call.

Recipient of an Electronic Communication

Any intended recipient of an electronic communication has a right to disclose it. True. (Basically if you receive an email you can legally spread it around)

Net Neutrality

The principle that all information flows on the internet must receive equal treatment

First Amendment (Protects free speech)

-Does not protect defamatory statements over email

-Does not protect threats of violence against individuals

-No revenge porn even if the photos were taken with consent

COPA (Children's Online Privacy Act)

Prohibits online operators from collecting online information from children under 13 without parental permission