blaw exam 1

Arbitration

3rd party decides outcome & is binding (EX. the hearing & determining of a dispute or the settling of differences between parties by a person or persons chosen or agreed to by them...Rather than risk a long strike, the union & management agreed to arbitration.)

Common Law

Based on decisions made by past judges.

Civil Law

Based on written code.

Criminal Burden of Proof

"Beyond a reasonable doubt", burden on state, no obligation of defendant to present evidence; UNANIMOUS VERDICT.

Civil Burden of Proof

By preponderance of the evidence (More right than the other guy).

Double Jeopardy

Can't be tried twice for the same thing in the same sovereign (court). Can still be tried in different court (ex. After criminal court you could be tried in civil court). REMEMBER: (State & Federal courts are different sovereigns).

Constitution Law

LAWS FROM THE CONSTITUTION. Only applies if occurs in public sector. (EX. Because much of Constitutional law deals with judicial review, the study of Constitutional law focuses on Supreme Court rulings.)

Precedent

Case law or common law. Abiding by the previous decisions by courts. (THINK: Previous)

Stare Decisis

Requires trial judge to abide by previous case examples by higher courts (Goes state by state).

Defendant

Paid hourly

Plantiff Lawyer

Payed contingency fee (a part of the winnings) & only payed if case is WON.

Frivolous Lawsuits

Rule 11 discourages it (Rule 11= lawyers can be punished & fined for lawsuits that have no evidence or point).

Role of Jury

Rules on matter of fact.

Judge

Rules on matter of law.

Federal System

District Court, Court of Appeals, US Supreme Court.

State Courts

Trial Court, Appellate Court, State Supreme Court.

Minimal contact

Long arm statue (if the company makes minimal contact with that state you can sue).

Forum Selection Clause

A forum selection clause in a contract is an agreement by both parties to adjudicate any disputes resulting from the contract, such as a breach of contract, in a specified forum.

Exclusive Jurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court (deals with bankruptcy, copyrights, patents).

Concurrent Jurisdiction

Federal question

• When the constitution is in question

• Diversity of citizenship

• Two parties are from different states & amount in question exceeds $75,000

• Diversity of citizenship

• Two parties are from different states & amount in question exceeds $75,000

Court Procedures

Complain then service of process then answer (after answer counterclaim & cross complaint).

Deposition

• The process of giving sworn evidence:

• "The deposition of four expert witnesses"

• A formal, usually written, statement to be used as evidence.

Voire Dire

You can dismiss a jury member for any reason except for race & gender.

Summary Judgement

A judgment entered by a court for one party & against another party summarily, without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case.

Directed Verdict

An order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case.

Judgement NOV

"Judgment not withstanding the verdict" is abbreviated JNOV, which stands for its Latin equivalent, judgment "non obstante veredicto." The remedy of JNOV applies only in cases decided by a jury. A JNOV is proper when the court finds that the party bearing the Burden of Proof fails to make out a Prima Facie case.

Prima Facie Case

A case that on first appearance will prevail unless contradicted by evidence.

Mediation

Not binding & many courts make you go through this before you can schedule a court date.

Limited Powers

Covers Federal & anything to do with the Constitution.

General Powers

Covers state & anything not in the Constitution.

State Action

In the Federal Civil Rights Acts, dating back to 1875, any activity by the government of a state, any of its components or employees (like a sheriff), who uses the "color of law" (claim of legal right) to violate an individual's civil rights. Such "state action" gives the person whose rights have been violated by a governmental body or official the right to sue that agency or person for damages.

Privileges & Immunities

Prevents a state from imposing unreasonable burdens on citizens of another state.

Full Faith & Credit Clause

Civil matters only & this insures that decisions in one state will be honored in others.

Separation of Powers

Veto of President, treaties & role of Senate, & Judicial Review.

Commerce Clause

Gibbons vs. Ogden. Anything that affects interstate commerce the government can control. (EX. civil rights laws, minimum wage).

Gibbons vs. Ogden

The New York Legislature had passed a law giving a monopoly on steamship travel in New York to a group of investors, including Robert Fulton. Among the people who had permission to do business under this monopoly was Aaron Ogden.

Thomas Gibbons, another steamship trader, wanted to use the New York waterways for his business. He had been given federal permission to do so. He was denied access to these waterways by the State of New York, which cited its law as enforcement. Gibbons sued Ogden, & the Supreme Court agreed to decide the case.

The majority opinion said that the U.S. Constitution had a commerce clause that allowed the federal government to regulate commerce, in this case trade, wherever it might be, including within the borders of a state. Previously, it was thought that the federal government had power over only interstate commerce. But Marshall's opinion said that the commerce clause applied here, too. Thus, the Supreme Court extended the definition of interstate commerce & cemented the power of the federal government over the states when laws conflicted.

State Action

Action by a state, as opposed to a private person, that constitutes discrimination & therefore is an equal protection violation (Constitutional law only available in public sector).

Symbolic Speech

(Very protected) Conduct that is intended to convey a particular message which is likely to be understood by those viewing it (it is well established that wearing certain clothing can be a form of protected symbolic speech).

Commercial Speech

(Not so protected) Commercial speech is speech done on behalf of a company or individual for the intent of making a PROFIT. (THINK "greed")

Clear & Present Danger

You can't yell "fire" in a crowded room or "bomb" at the airport.

Not Protected Freedom of Speech

Obscenity; Three guidelines

• Whether the average person, applying contemporary standards, would find that the work appeals to the prurient interest

• Whether the work depicts sexual conduct in a patiently offensive way as defined by applicable state law

• Whether the work lacks serious literary, artistic, political or scientific value

Freedom of Religion-Incorporation Doctrine

Rights in the Constitution apply to state laws.

Freedom of Religion- Establishment Clause

• 1st amendment

• Government cannot establish an OFFICIAL religion

Freedom of Religion- Free Exercise Clause

Prevents government from interfering with the practice of a person's religion.

4th Amendment: Search & Seizure

Consent. i.e. State v. Brown

• Warrant: Officer must got a judge & present to him "Probable Cause"

• If "probable cause" exists, then officer can proceed w/o consent

• Justifiable Excuse. (emergency, pat down pursuant to lawful stoppage)

• If an officer believes there is "elements of crime" he can search

State vs. Brown

United States Supreme Court case in which the Court determined that the defendant's arrest in El Paso County, Texas for a refusal to identify himself, after being seen & questioned in a high crime area, was not based on a reasonable suspicion of wrongdoing & thus violated the Fourth Amendment. It is an important case for Stop & Identify statutes in the United States.

5th Amendment: Self Incrimination

• Involves "Miranda rights"

• Only applies if there is interrogation.

• Applies only to "natural persons". Corporations/partnerships not included

• Exclusionary rule: evidence obtained by interrogation without being told of your rights is

thrown out.

Due Process & Equal Protection (5th & 14th amendment)

• In order for these rights to apply, there MUST be "State Action"

• Due Process- basic fair treatment by government

• Must be given a day in court

• Called "Procedural Due Process"

Substantive Due Process

The government passing a law that treats one group differently than another.

Rational Basis

Any conceivable reason for different treatment (EX. Age).

Compelling State Intrest

• Involves fundamental rights, or rights covered by the Bill of Rights.

• Strict Scrutiny Test: There's no other way to regulate this activity other than the one government is imposing.

Privacy Rights

Griswold v. Conn

• Conn. Prohibited the sale of contraceptives in the state

• Outcome: In favor of Griswold. The bill of rights has "penumbras" representing basic rights not specifically stated. The 9th amendment is the basis for this concept.

Roe vs. Wade

Roe v. Wade is the historic Supreme Court decision overturning a Texas interpretation of abortion law & making abortion legal in the United States. The Roe v. Wade decision held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without legal restriction, & with restrictions in later months, based on the right to privacy.

Patriot Act

Gave federal government increased authority to monitor electronic activity.

Administrative Law

Before regulation can be passed, there must be 30 days period for public comment.

Appeal of admin law

Goes to full administrative law commission.

Enabling act

Allows government to transfer power to administrative agencies (EX. FCC & FDA).

Criminal Cases

• Criminal is an offense against society

• Must be proclaimed in a statute

• If there is no law stating it is a crime, it's not a crime

• Action is by the government

• Criminal is mostly STATE law

• Most federal crime involves acts against federal officials or involves interstate commerce

Jurisdiction

• Must have occurred within the state (or US for federal)

• Long arm statute only applies to CIVIL law.

Prosecutorial discretion

• Government are not going to prosecute every law

• Grand Jury is required in most federal cases & some states

• 18 rather than 12.

• You cannot force a prosecutor to prosecute

EX. A beaten wife who chooses not to press charges

Criminal Liability

• Actus rues-criminal act

• Mens rea: also have to have intent to commit the crime

• Have to have both

Criminal Neglagence

• Manslaughter: the act of taking another person's life while under the influence of extree emotional disturbance for which there is reasonable excuse

• Causing someones death, but didn't have the intent of manslaughter