Comm Law Exam 1 (thank u abby!!!)

Judicial Review

Nine unelected judges evaluate laws passed by democratic majorities.
Authority to review an executive order to legislative act and have the power to invalidate any law against the constitution.

Reviewable

legal right

Not Reviewable

discretionary act

The Political Question Doctrine

The idea that certain questions are committed to the political branches and are not for judicial review.

Trial Courts

Courts that listen to testimony, consider evidence, and decide the facts in a disputed situation.

Circuit Courts

federal appeals courts

5 scenarios where federal courts have original jurisdiction

1. cases where the law at issue is a federal law
2. cases involving treaties
3. cases involving the constitution
4. cases where the US government is a party to the litigation
5. cases involving more than one state where there's >$750,000 at issue

5 scenarios where the Supreme Court has original jurisdiction

1. between the US and a state
2. between 2+ states
3. cases involving foreign ministries or ambassadors
4. cases brought by citizens of one state against citizens of another state or against a foreign country
5. crime committed on the high seas (must involve a federal issue)

5 Supreme Court decision rules

1. case or controversy: will not issue advisory opinions
2. standing: the parties must have a substantial stake in the outcome
3. mootness: the case no longer requires a resolution
4. ripeness: if the potential jury has yet to occur
5. political question doctrine: the court rathers the executive or legislative brand handle the issues

3 cases the Supreme Court will always take

1. circuit split: circuit courts have reached different or conflicting conclusions on the same issues
2. when the federal government itself issued the appeal
3. clear constitutional question

Law

The creation and enforcement of duties, obligations, and rights.

Duties

responsibilities

Obligations

Certain arrangements to bind yourself to a course of action that becomes legally binding,

Rights

1. constitutional
2. statutory

Statutory Rights

rights created by legislators

9 purposes of law

1. to avoid anarchy
2. moral code on society
3 social construct
4. protection
5. resolve conflict
6. add structure
7. universality
8. consistency
9. stability

Substantive Law

Defines specific duties and rights to which a person is entitled to and/or obligated to perform.

Procedral Law

Specifies the process by which substantive laws are forced.

Criminal Law

Rules that protect society as a whole by establishing certain minimum standards of conduct and acceptable behavior, as well as establishing the punishment for those who don't abide by the standards.
The government, state, or federal courts bring criminal actions.

Reasons for Criminal Law

1. deterrence
2. punishment

Civil Law

Laws of which are concerned with private relations between members of a community.
Called to action by the injured party.

Civil Law System

Based on codes and written laws -- LA

Common Law System

Judges are allowed to make the law as well.

Court of Law

"The King's Law"
Rigid Law (judge)
Often punished unfairly

Court of Equity

Church of England
Based on fairness -- chancellor

Law vs. Equity

remedies
jury vs. no jury
rigid vs. flexible
different rules

Unjust Enrichment

Someone has gotten a benefit unfairly.

Remedies

damages
money damages are ALWAYS court of law

Money as a Remedy within the COE

specific performance (contracts)
injunction: court order to do something or refrain from doing something
promissory stockhold: the promise was made, the promise relied on the promise to the detriment (promissory must be aware of the promise)

Reliance Damages

The money it costs to complete a broken promise.

Enforcement of Remedies (COL)

Money damages attacking their property or garnish wages.

Garnish

pay you before them

Court Order

Legally ordering an individual to do something.

Ethics

Standards of what is fair based on our moral beliefs.

Constitutional Law

state and federal

Statutory Law

legislators

Administrative Law

agencies

Common Law

regulations

Federalism

10th Amendment: Grants the specifically enumerated rights belonging to the federal government. All other rights belong to the states.

Systems of Checks and Balances

executive = veto
legislative = law
judicial = hold unconstitutional

The Supremacy Clause

Grants states judicial review for state laws.

Madison vs. Marbury

writ of mandamus

Writ of Mandamus

A court order insisting an elective do their job.

Judicial Restraint

A court does not sit in judges of the motives and wisdom of legislators, nor will it establish invalid because it is ruled unfair.

Strict Constructionism

Narrow interpretation of the Constitution.

Commerce Clause

Congress may regulate commerce amongst the several states.

9th Amendment

The right to privacy (judicial activists)

Intrastate Commerce

within the states

Dorman Commerce Clause

The free flow of goods across the states.

Tort Law

A civil wrong
An injury is done to someone's person or property.

Intentional Tort

An intentional act that poses harm to the plaintiff.
The intent refers to the act, not the harm.

3 Types of Property

1. entering another person's land without the owner's permission
2. interfering with another person's use or enjoyment of personal property
3. permanently removing property from the rightful owner's possession

3 Economic Interests

1. making a false statement of material fact about a business product
2. enticing someone to breach a valid contract
3. going into business for the sole purpose of taking business from another concern

Defamation

Communicating to a third party information that's harmful to someone else's reputation.

Libel

A written defamation of a person's character, reputation, business, or property rights.

Slander

Orally spreading false information about someone with intent to cause harm.

Intnetional Infliction of Emotional Distress

Direct outrageous at someone who's likely to suffer extreme emotional pain as a result.

Full Faith and Credit

Requires that states honor each other's laws and court decisions.

Privledges and Immunity

Ensures that when an individual visits a state, that individual has the rights and privileges as a citizen of the state.
Only fundamental rights.

1st Amendment

Freedom of Speech, Press, Religion, right to Peaceful assembly, and to petition the Government

Establishment Clause

Clause in the First Amendment that says the government may not establish an official religion.
Absolute

Exercise Clause

Government can't say how to practice your religion unless it violates someone else's rights.
Not absolute

Criticism of the Government in the 1st Amendment

time, manor, place
content: governed and reviewed by the courts with the strict scrutiny
symbolic speech is not protected

2nd Amendment

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Right to bear arms.
Not an absolute right

Due Process

4-5-6-8-14
An overall concept that an individual cannot be harmed by the loss of freedom, process, or liberty unless the rules of the justice system has been followed and his/her rights have not been violated.

5th and 14th Due Process

right to protection

4th Amendment

Freedom from unreasonable searches and seizures.

Warrant

Swears under oath with probable cause for a court order.

3 Things a Warrant Must Include

1. exact identity of the premises they want to enter
2. who they want to search
3. what it is they're looking for

Exceptions of the 4th Amendment

1. Plain View Doctrine
2. consent
3. Stop and Frisk
4. No-Knock

Reasonable Suspicion

below probable cause

The Exclusionary Rule

A rule that provides that otherwise admissible evidence cannot be used in a criminal trial if it was the result of illegal police conduct.

5th Amendement

Protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment without due process of law.

Custodial Interrogation

The questioning of a suspect after that person has been taken into custody. In this situation, the suspect must be read his or her Miranda rights before interrogation can begin.

Mistrial

the jury is hung

Grand Jury Indictment

A written accusation by a grand jury charging that one or more persons have committed a crime.

Felony

more than a year in prison

Misdemeanor

less than one year in prison

Preliminary Hearing

An initial hearing in which a judge decides if there is probable cause to believe that the defendant committed the crime with which he or she is charged.

Double Jeopardy

Being tried twice for the same crime (criminal cases)
Mistrials and appeals are not double jeopardy

Eminent Domain

The government has the right to take your private property for public use and they must compensate you in return.

6th Amendment

1. speedy trial
2. public trial (excluding juvenile and rape)
3. impartial jury
4. informed of the nature and cause of the accusation
5. cross examinations
6. attend trial
7. call witness
8. represented by a lawyer (criminal)

8th Amendment

Protection from cruel and unusual punishment.
3 strikes you're out

Right to Privacy

The enumeration in the constitution of certain rights should not be constructed to deny or despair others retained by the people.
Nowhere in the constitution.

Codify

to make something a state/federal law

in loco parentis

in place of parents

Statutory Law

Written laws that are passed by legislators.

Administrative LAw

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Precedent

An example that may serve as a basis for imitation or later action.

Social Host LAw

Individuals over 21 who supply and/or allow underage drinking/drug use on their property are held legally responsible and face being arrested, fees, and potential jail time

Changes in Social Attitudes

Before 1984: server is not liable
After 1984: server is liable

Jurisdiction

The authority of a court to hear a case.

Concurrent Jurisdiction

Authority for both state and federal courts to hear and decide cases.

Diversity of Citizenship

When the parties are from more than one state and are suing for more than $75,000.

Federal Question

A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Tortious Act

civil act

Specific Jurisdiction

Jurisdiction that stems from the defendant's having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those minimum contacts.

General Jurisdiction

Exists when a court's authority to hear cases is not significantly restricted. A court of general jurisdiction normally can hear a broad range of cases.

Appeal

To ask a higher court to review the decision and determine if justice was done.

Venue

The geographic district in which a legal action is tried and from which the jury is selected.