BUS221 Exam 1

IRAC Framework for Legal Reasoning

Issue, rule, analysis, conclusion

Four primary sources of law

Constitutions, statutes, administrative and case/common law. All legally binding.

Case/common law

Judge made law developed through court decisions and precedents establish legal principles.

Administrative law

Created by Fed/state administrative agencies which get authority from legislative bodies

Precedent and Stare Decisis

Prior judicial decision that can be binding when it comes from higher courts or persuasive (up to consideration) when strong grounds for overruling exist.

Case naming conventions

Plaintiff v defendant, volume, reporter, page no., court & year (name order might change in appellate court)

Jurisprudence

The study of the philosophy of law

Secondary sources of law

Legal encyclopedias, restatements of contracts, all non binding & explain and summarize the law

Natural law

Idea that a higher, or universal, law exists that applies to all human beings and is connected to universal principles of morality

Legal Positivism

Idea that law is based on govt authority, and therefore is valid regardless of morality

Legal Realism

Focuses on how law actually operates in practice, eg. influence of social conditions

Historical School of Law

Idea that law develops from a society's history

Civil law

Disputes regarding harm or damage to one’s property or rights (lawsuits)

Criminal law

Crimes against society, govt must prove case beyond a reasonable doubt

Supremacy Clause

States that Fed Constitutional authority is supreme over state law

Under the 10th Amendment, state govts, cities/counties have…

“police powers” to create laws that are regarding public health, safety, and welfare

Substantive law

The law itself-—what it commands or forbids

Procedural law

Lays out the rules and procedures for enforcing substantive law

When no precedents exist, judges look to…

precedents from other jurisdictions, broader legal principles, public policy and social norms

Federalism & Concurrent Powers

Power is divided between Fed and state govts. Concurrent powers are shared, eg. taxing, building roads, establishing crimes.

Checks & Balances

Exec branch can veto, legislative can override veto or impeach, judicial can judicial review (declare acts unconstitutional, Marbury v Madison)

Preemption

A higher level of govt can override or cancel out a conflicting law made by a lower level of govt

Congress’s enumerated vs implied powers

enumerated powers are expressed in the constitution, implied powers are necessary and proper to carry them out

The commerce clause

Gives Congress authority to regulate interstate commerce, and intrastate if it significantly affects (aggregate effect)

Dormant commerce clause

Limits state law that interferes with interstate commerce so they can’t discriminate/unduly burden out of state commerce

Freedom of speech & expression

Protected by 1st amend. and not absolute. Govt can place content based (strict scrutiny) or content neutral (intermediate scrutiny) restrictions

Examples of unprotected speech are…

fighting words, incitement, threats, defamation, fraud speech, obscenity, CSAM

Corporate political speech is…

protected corp speech endorsing/opposing political candidates and matters

Central Hudson test

Supreme court test to determine if commercial speech is lawful and not misleading in order to be protected

Establishment and free exercise clauses

Freedom of religion, prevents govt from establishing/promoting one religion and protects right to practice religion

Protection from unreasonable search/seizure

Requires probable cause/warrants for search, except in closely regulated industries. Unreasonably acquired evidence may not be used in court (exclusionary rule)

Protection against self incrimination

The govt can’t compel someone to provide testimony that can be used against them. Doesn’t apply to collective entities

Procedural and substantive due process

Govt must treat people fairly before taking away natural rights. Asks if the govt has significant reason (substantive) and explains steps govt must follow (procedural)

Privileges and Immunities Clause

Stop states from discriminating against out-of-state residents or limiting basic national rights

Equal protection clause

prevents govt from treating people unequally without a good reason. Race based: strict scrutiny, gender: intermediate, economic: rational basis

Right to privacy

Protects personal info, communication, & autonomy,

Full faith and credit clause

State courts are required to honor and enforce valid judicial judgments and decrees issued by courts in other states.

Strict scrutiny vs intermediate vs rational basis

Govt will pass the law when:

1. must have compelling state interest (absolute necessity)

2. must show important govt objective

3. must have legit govt interest/reasonable goal (eg public safety/health)

Administrative agencies

provide oversight and fills in gaps to regulate areas Congress is unable to. Given authority by Congress’s enabling legislation to make rules (within existing law), enforce, and adjudicate (resolve violations & admin hearings)

Exhaustive doctrine

You must first exhaust the most readily available resources

Original Jurisdiction

The first time a case is being heard

Writ of Certiorari

Requesting Sup Court to review the decision of a lower court (4 or more justices must agree to hear)

9 Justices of Supreme Court

Chief Justice John G. Roberts, Jr. Associate Justices Clarence Thomas, Samuel A. Alito Jr, Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Ketanji Brown Jackson

Before courts can hear a case, they must have…

jurisdiction (authority to hear case), correct venue (location), and proper plaintiff standing (correct party bringing suit)

Specific personal/personam jurisdiction

authority over person in suit due to domicile or residence, if not must have purposeful minimum established contact (long arm statute)

Corporate personal jurisdiction

General: claim is not connected to state, can be held at state of incorporation or business. Specific: suit must be related to purposeful minimum contact

In REM jurisdiction

Court authority over property located in state

Subject matter jurisdiction

Court’s authority to hear a particular type of case, eg family court. Fed courts have limited subject matter juris

Terms for proper plaintiff standing are…

showing real injury, clear causation, and redressability (court could provide a remedy)

Personal jurisdiction in cyberspace, courts use…

a sliding scale. Passive internet activity: no personal jurisdiction. Active internet activity: personal jurisdiction.

Alternative dispute resolution (ADR) methods include…

negotiation, mediation, arbitration (arbitrator decides outcome)

Process of filing a lawsuit

1. Pleading documents complaint and summons (service of process)

2. Answer, admit/deny or legal defense/counterargument

Pre trial motions

1. Motion to dismiss due to lack of personam/subject jurisdiction or failure to state claim

2. Motion for default judgement when defendant does not answer

3. Motion for summary judgement when facts are undisputable