Legal Exam #2

U.S. Constitution

provides legal framework for the federal government

Bill of Rights

1-10th amendments, adopted together in 1791

Post-Civil War Amendments

13, 14, 15 amendments

Prohibition

18th amendment established it, 21st abolished it

federalism

separation of powers between federal and state/local governments

separation of powers

leads to a parallelism and duplication of government structures

legislation branch

congress

→ makes laws

→ controls the power of the purse

executive branch

president & VP

→ carries out the laws

→ can tell regulatory agencies how to carry out the law by executive order

→ cannot create a new law

judicial branch

Supreme and lower courts

→ interprets the laws

Subsidiarity

idea that the lowest level of government that is capable of dealing with an issue ought to be the one to deal with that issue

supremacy clause

constitution is supreme over all laws

federal law > state law

→ congress cna choose how to invoke the supremacy clause

commerce clause

provides the federal government the power to regulate business activities

→ one of the most powerful tools available to the federal government

contracts clause

states cannot enact laws that infringe upon rights and duties under existing contracts

First Amendment protections

→ Freedom of religion

→ Freedom of speech

→ Commercial speech

→ Freedom of the press

freedom of speech

Covers verbal and written communication and symbolic speech

Overbreadth doctrine

governmental restrictions on expression must be narrowly drafted

commercial speech

speech that advertises a product or service for a profit or a business purpose

freedom of the press

construed to prohibit prior restraints on publications

the press is accountable for what is printed

libel is used to recover damages as a result of printed defamation of character

second amendment

protects the right to bear arms

third amendment

protects against the government quartering soldiers in your house

fourth amendment

unlawful search and seizure - the government has to get a warrant based on probable cause, in order to search your home or your belongings without consent

fifth amendment - double jeopardy

if a person is found not guilty of a crime, the state cannot prosecute that person again for the same offense

fifth amendment - self incrimination

“you have the right to remain silent”

government cannot force you to testify against yourself

fifth amendment - eminent domain

allows the government to take private property for public use after paying just compensation

(apartment being built around house)

fourteenth amendment - birthright citizenship

all persons born in the US are citizens of the US and the state they reside

fourteenth amendment - equal protection & due process of law

states that no state shall make or enforce any law which shall

→ abridge the privilege or immunities of citizens of the US

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

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

due process of law

prevents governmental bodies from acting in a manner that is arbitrary, capricious, or unreasonable

Strict Scrutiny

high level of protection

→ protects most fundamental rights

Intermediate Scrutiny

rarely used

→ important governmental interest, means must be substantially related

—→ aka) Quasi-strict scrutiny

rational basis

lowest level of protection

→ the government must have some reason for what it’s doing

-→ aka) minimum rationality

sixth amendment

mostly deals with criminal law and trials

right to …

• a speedy trial

• a public trial

• an impartial jury

• notice of the charges

• confront witnesses

• compel witnesses

• counsel

seventh amendment

right to a jury in civil cases

eighth amendment

excessive bail

cruel and unusual punishment

→ source of death penalty cases

ninth amendment

you cannot assume that the rights listed in the Constitution are the only ones that people have

tenth amendment

the federal government only has the powers granted to it by the Constitution

everything else is retained by the states and the people

property

legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud

socialism/communism

states make major decisions about the production and distribution of resources

private property

state recognizes and enforces an individual’s rights to acquire, possess, use, and transfer scarce resources

Property Law

largely made by judges

even if some of the rules don’t make sense, it would be too chaotic to change them

John Locke saw as a natural right, tied to labor

Catholic teaching sees it as a natural right

public property

property owned by the government or the state

private property

property owned by an individual

common property

private property owned by 2+ people

property used by society, to the extent others can be excluded from harming it

personal property

all property other than real property

can be tangible - cars, food, computers

can be intangible - intellectual property, securities

real property

consists of more than the surface of the property

air rights

owner of real property possess the air above the land to a certain extent

subsurface rights

landowner owns the rocks and minerals beneath the land

can be sold to another

fee simple

represents the maximum estate allowed under law

estate

bundle of rights and powers of land ownership

life estate

Grants an ownership in land for the lifetime of s specified person

leasehold estate

property right granted to tenants by a landlord

concurrent ownership

more than one person can own the same property

tenancy in common

tenants can own different shares of the resource

joint tenancy

tenants have equal ownership shares

easement

right to cross over or use land

bailments

goods placed into another’s possession to be returned in future

bailor: owner

bailee: possessor of the object

ex) coat check, renting furniture from furniture store

acquiring property through exchange

allow owners to commit legally to future exchange of resources

enable an owner to sue another if agreements in the future are broke by one of the owners

contract rules

control the wat owners make agreements to exchange resources

rule of first possession

first person to reduce previously unowned things to possession becomes their owner

acquiring property through possession

first person to reduce abandoned things to possession owns it

lost items

finder of item becomes owner by taking possession and following a statutory procedure

mislaid items

things must be given to the owner of the premises where the item was mislaid

acquiring property through adverse possession

provides ownership of land under state statue when the possession is

• open and notorious

• actual and exclusive

• continuous

• wrongful

• for a prescribed period of time

acquiring property through confusion

occurs when fungible goods are mixed together

acquiring property through accession

when people apply efforts to any raw materials and change its nature into finished products, they own the finished products

acquiring property through gift

donor who owns something gives it to a donee, who become the new owner

→ gift does not take place until the donor intends to make the gift, delivers the gift by physical transfer to the donee

testamentary gift

made through a will

title

ownership

deed

document of title that transfers ownership of land

security interests

grant prction to one creditor against claims by another creditory of the same owner

can permit a creditor to seize assets if debtor does not fulfill obligations

ex) mortgages, deeds of trust, secured transactions

land sales contract

owner sells the land by contract

foreclosure

creditor must go through the court system to ensure that procedures are properly followed

deficiency

balance owed by the debtor to the creditor-mortgagee

right of redemption

allows mortgagor to get back land upon payment of the full amount of debt

secured transactions

like a mortgage for personal property

attachment in secured transactions

gives the secured party rights against the debtor, and occurs when:

• the secured party has a given value

• debtor owns the collateral

• security agreement is provided

perfection in secured transactions

gives the secured party rights against other creditors of the debtor

financing statement

a form filed at the county courthouse, signed by the debtor, and describing the collateral

expires after 5 years

liens

workers or vendors who contribute goods or labor to property have a right against personal property if its not paid

artisan’s lien

the right to sell a piece of personal property in the artisan’s possession to recoup the value of what the artisan is owed

ex) a repair ship refusing to return a vase until paid

mechanic’s lien

the right to recoup the value of good or services incorporated into a piece of real property - notice must be filed

ex) a carpet permanently affixed to a building

→ has nothing to do with auto mechanics

zoning ordinances

laws that divide municipalities into use districts designed residential, commercial, or industrial

public nuisance

arises from use of land that causes inconvenience or damage to the public

private nuisance

unreasonable use of one’s property to cause substantial interference with the use of another’s land

duration limitation on property

patents and copyrights are granted for limited times

rule against perpetuities

limits exercise of property rights over resources to a duration of lives in being plus twenty-one years

contracts

promises that are enforceable with predictable consequences if the parties to the contact fail to perform

enable buyers and sellers to account for future risks or have confidence in exchanging valuables

contract law in private enterprise

contract does not need to be formal, written document

contract law enables private agreements to be legally enforceable

provides flexibility and precision in business dealings

legislation

contracts for goods

common law

contracts for other than goods

bilateral contract

both parties have a duty to perform when contract is formed

unilateral contract

one party has duty to perform if contract is formed by performance, but the other party may elect not to perform

express contracts

arise from interactions in which parties discuss the promised terms of the agreement

contract spells out what is expected

implied-in-fact contracts

arise from the conduct of the parties rather than from words

Implied-in-law/Quasi Contracts

judicial remedy to prevent one party from receiving unjust enrichment

remedy applies when no actual contract exists to cover the dispute

executed contract

parties have performed their promises

executory contract

parties have not yet fully performed their agreement

*5 ELEMENTS OF A VALID CONTRACT*

1) Offer to enter into a contract

2) Acceptance of the offer

3) Consideration for each promise

4) Capacity of each party to enter into a binding agreement

5) Legality of subject matter

offer to contract

contains a specific promise and demand

acceptance of offer

necessary to create a valid and enforceable contract

mirror image rule

rule that acceptance must match the offer exactly to create a binding contract