Untitled Flashcards Set

Module 1

LAW & LEGAL REASONING (Ch 1)

(Ch 1 Textbook Sections Not Covered: 1-3a Early English Courts, 1-4 Schools of Legal Thought)

Primary Sources of Law (there are four) – AUTHORITATIVE and sets the standards to govern

                  Constitutional (creates the structure of our federal government) THE SUPREME LAW OF ALL THE LAND, HAS THE MOST POWER

-        They added to it and said that the federal government could not infringe on federal rights, has been amended over time to establish certain civil rights and liberties

·       created by: the founding fathers

·       jurisdiction: supreme law of all the land

·       supremacy clause: more powerful than any other source of law

States have their own statutory laws and more, and each states also have their own constitution.

                   Statutory (PASS LAWS TO GOVERN CERTAIN TERRITORIES)

CAN BE UNIQUE OR UNIFORM (99% ARE UNIQUE)

Uniform laws: created by organizations like commissions or nonprofit groups related to a specific industry. Identical to another state and didn’t ceom from individual state legislators but it was pitched to them by certain organizations, has to be generic and non-controversial

·       created by: legislative bodies (people that are elected into office) congress, state legislators, local county level commissioners, city councils

·       jurisdiction: depends on which level it was created  congress, all states, state legiskature, state, country, cities.

·       EXAMPLE: if you are under 21, you cannot purchase tobacco products because it was created by congress

                  Administrative (very specific to expensive situations)

·       created by: administrative agencies that are part of our government, for example, TSA (might have experience in different forms of transportation, and have different security experience.)

·       jurisdiction: federal agencies, all states, state agencies, the state, the county agencies, the city agencies (not as common)

Case Law / Common Law (synonyms for each other/saying guilty or not)

·       created by: a judge

·       IRAC: ISSUE< RULE, APPLICATION, CONCLUSION

·       stare decisis: it is a standard which means to stand on decide cases (there needs to be consistency but also flexibility) – there are parameters.

·       precedent: a previous case

·       jurisdiction

o   binding authority vs. persuasive authority: binding (you have to follow it), persuasive (not needed to follow if you don’t want to, you may consider it but otherwise it is binding) YOU KNOW IT BY COMPARING TWO COURTS, compare which courts did the precedent come from, and which court am I currently in?

Triangle Hierarchy 

1.     supreme court (sometimes they can overturn their own laws)

2.     apellic court

3.     trial court

 (persuasive when at the same level) – (binding when it comes from a court in a higher power than you)

Reporters: groups of books that we maintain to find any case by any judge

Eg. plaintiff/defendant, reporter volume (court, year)

Classifications

·       substantive vs. procedural: law that tells you what your rights are vs tells you a procedure to take to enforce a right (for example, getting bit by a dog)

·       state v. federal:

·       criminal v. civil:

·       unique v uniform:

Secondary Sources of Law: not authoritative, not meant to be followed. It is important people who are interpreting other law documents and reduce them down to layman terms and into different business scenarios.

Names of publications:

1.     Law reviews

2.     Books (journals, treatises)

BUSINESS AND THE CONSTITUTION (Ch 2)

Structure of Federal Gov

·       Legislative Branch

·       distinct roles:

·       checks & balances:

·       Executive Branch

·       distinct roles:

·       checks & balances:

·       Judicial Branch

·       distinct roles:

·       checks & balances:

Key Constitutional Provisions

·       Supremacy Clause

·       purpose: when state laws conflict with the constitution, the constitution wins

·       preemption: establishes federal law and takes precedence over state laws

·       Commerce Clause

·       purpose: to regulate commerce with foreign nations

·       interstate vs. intrastate:

·       interstate is always, authority is the commerce clause

·       intrastate is if it affects more than one state, and authority s the judicial interpretation of the commerce clause

·       “Dormant commerce clause” and state power:

·       Taxing & Spending (also go to legislative branch, congress)

·       purpose: can pass laws that regulate commercial activities

·       tax people, business, imports and exports, power to take money from taxing and spend it

·       spending  give it to states, programs, military, etc. they can put funding conditions on spending power – for example, your campus needs to have this or this. eg. Higher ed drug and alcohol program

·       Full Faith and Credit Clause

·       purpose: if a state is civil nature, if there is legal contract rights, those rights are established, even if our state has different rules, if somebody got that right from a different state and comes to our state – we have to accept it and honor it.

·       When you are bringing an issue back to another state.

·       Example: Marriage, in Vegas its quick, easy and eloping, while in Maryland, you must wait longer for a marriage license, apply and legally get married.

·       Any civil or court orders

·       Privileges and Immunities Clause

·       purpose: freedom of travelling interstate, wanting citizens of other states to move from one state to another, you have equal access to federal rights, not state rights.

·       Example: family lived in Kansas and were on Medicare, they relocated to California, when they got to California their Medicare check was still paid under Kansas rates, but they got less money, because it was a federal right.

·       Bill of Rights (first ten additions to the constitution, ratified 2 years after the constitution was affirmed and approved)

·       scope of application – humans and businesses

o   federal gov: has to be fair and reasonable and passes any law of review applicable to these BECAUSE of the bill of rights

o   state gov: unfairly passing laws and taking actions and it is not responsible for the rights of the federal government, overtime there were cases and now they cannot violate the civil liberties (case by case slow trickle basis), some rights have not been declared by judges to be applicable to states (IN PART)

o   private actors – humans and private businesses NON GOVT ENTITIES

·       entanglement: a scenario where an entity is meshed with the government, either leasing space form government or employees who are gov’t employees, connected in some financial aspect, basically the government at this point

·       public function: the government hires a company to do a job for them, for example, help running a federal presidential election.

·       Freedom of Speech: oral, written and symbolic

o   Protected: anything that isn’t defamation, criminal threats or obscenity

o   unprotected: the government can ban it, there is no regulations (defamation, criminal threats, obscenity)

·       OBSCENITY: depends on what people think, must lack seriously redeeming Scientific, Literary, Artistic, or Political value

o   commercial speech: type of speech that is communicating information about a product or a service that a company sells, advertising or marketing. (always reviewed at intermediate scrutiny)

o   speech regulations: any sort of action that the government takes that are things that anyone says or a business

·       content restrictive: content wise, level of review is strict scrutiny, e.g. you just cannot say it, “bong hits for Jesus”, weird when the government prohibits you from saying something it is a big deal, and suspicious

·       content neutral: time, place, or manner; reviewed at intermediate scrutiny level, e.g. Nude dancing like strip clubs, free speech zones

o   violation analysis: Twitter ban

·       protected speech? Protected speech

·       commercial speech or non-commercial speech regulation? Non commerical

·       apply appropriate level of review (SS or IS): strict scrutiny

·       Freedom of Religion: part of the first amendment, has two sections

o   Establishment Clause: the government should not establish one religion to be the religion of America

o   Any action that the government takes of elevating one religion to the detriment of any other religion

o   Government is too involved in religion, the establish clause is to see if it is violated.

·       “SEE” review

·       Secular purpose : is the reason for this religious artifact religious in nature or not?

·       Effect not to inhibit : is having this religious symbol going to inhibit or advance religion?

·       Excessive entanglement: is the government religiously entangled with the religious symbol?

o   Free Exercise Clause: for an individuals right to practice the religion of their choosing

·       “SS” review

·       necessary to promote compelling gov interest and the only method to further the interest is by a restriction that does not create a substantial burden

·       public welfare exception:

·       e.g. emergent medical treatment for minors, if parents will not let children get treatment due to religious beliefs, or very emotional cases

·       Due Process:  FAIRNESS “no personal shall be deprived of life, liberty, property, without due process of law”

§  procedural vs. substantive:

·       procedural: someone needs to be put on notice and have a right to a fair hearing

·       substantive: the law itself must be fair

§  judicial review analysis

·       SS (fundamental): only if it relates to a fundamental right: right to vote, travel, marry, etc HIGH LEVEL

·       RB (non-fundamental): anything else! LOW LEVEL

·       Equal Protection: people that are similarly situated, should be treated equally

o   A state may not “deny to another person within its jurisdiction the equal protection of the laws”

§  judicial review analysis

·       SS (fundamental rights and suspect trait): e.g. city contract awarded to a white applicant necessary

·       IS (gender and legitimacy) : child support substantially

·       RB (economic or social welfare) : liquor sales rationally

·       State’s Powers: have two categories or power, state government.

§  Regulate intrastate commerce (dormant commerce clause very specific

·       No federal law on point

·       Cannot burden interstate commerce

·       Ex. MD state and county income tax

·       E.g. Tennessee passed a law about opening a liquor store, you must operate in the state for continuous retail operation

§  Regulatory “Police” powers (10^th amendment) VERY BROAD

·       Health, safety, morals, and general welfare

·       Ex. Licensing, building codes, parking regulations, prostitution regulations, child labor restrictions, zoning

·       Privacy Rights: don’t exist in the constitution,

·       constitutions

§  no express provision

§  SCOTUS (property rights, speech, abortion)

·       state constitutions: maybe, some have a right to privacy, some don’t.

·       statutes: help protect individual privacy

·       patriot act is the only one that actually allows the government to search, but only if it is in the name of investigating terrorism

ADMINISTRATIVE AGENCIES (Ch 43)

·       creation: congress makes and executes the law

o   enabling legislation: a law that congress passes that creates a new agency

o   delegation doctrine says congress doesn’t have the time energy or skill set to pass laws about everything that our country faces, but we will give u the opportunity to delegate laws to other branches of the government

·       federal agencies

o   executive agencies:

o   independent agencies:

·       roles

o   rulemaking: 

o   legislative rules (procedure and publications): 

o   interpretative rules:

o   enforce rules:

o   adjudicate rule violations

o   procedure:

·       checks and balances for agency power

o   executive:

o   judicial:

o   legislative:

COURTS AND ALTERNATIVE DISPUTE RESOLUTION (CH 4)

(Ch 4 Textbook Sections Not Covered: 4-1b The Origins of Judicial Review in the United States, 4-4d Other Types of ADR, 4-4e Providers of ADR services, 4-4f Online Dispute Resolution) 

Requirements for Litigation:

• 1-subject matter jurisdiction

• 2-personal jurisdiction (long arm statutes):

  • specific:

§  Long arm statue   - if you come into our state and do any of those actions in our state, you can get sued.

                                    *claim arises out of defendants in state activities

                                    Eg. Engage in businesses (including via internet), commit a tort, own property, deficient contract performance in state, injury in state

•  

• general:

§   Human: home state

§  Business (most forms): state where incorporated principal place of business, or at home.

• 3-venue: which city inside of specific state, is it right to bring the case to?

  • location options: criminal case (city where crime occurred), land (real property & anything attached to it), any other civil case (either bring it where the incident occurred, or where the defendant resides/does business)

  • location transfer: sometimes the appropriate venue isn’t fair (could be because it is a popular lawsuit, scared about not having fair jury.)

• 4-standing: ABOUT THE PLAINTIFF

§  whoever suffered the “harm”

§  if a minor, or mentally incompetent, there is still standing and legal rights you can exercise

ADR: not filing a lawsuit, doing one of these instead, most common alternatives to litigation

·       negotiation: two people who talk about a problem and try to reach a resolution (relaxed, or attorneys)

·       mediation: step up from negotiation, two parties that have a legal issue but are butting heads, bringing in a mediator (third party neutral) – has to be an attorney who does mediations, and gets paid by both parties, you have to help them resolve their problem (if somebody doesn’t wanna budge at the end, there’s no obligation to resolve the case.)

·       arbitration: looks more like litigation, 3 neutral people (arbitrators), one party picks one, the other party picks another, and then they both agree on sharing one. there’s rules and deadlines, questions, depositions. at the end you need a final arbitration, you basically pretend it’s a courtroom but just with the arbitration.

o   Binding: whatever the arbitrators say is binding and you must do it

o   Non-binding: whatever the arbitrators say is correct, but you can sue the other party afterwards.

Dispute Resolution Contract Provisions: how to control litigation risks

·       forum-selection: the business says if you want to sue me, you must sue me in a specific location

·       choice of law: when business says when you sue me, this is the law to control our dispute, federal laws, state laws, etc.

·       ADR: instead of suing, you negotiate, mediate or arbitrate

COURT PROCEDURES (CH 5)

Litigation

PRE-LITIGATION

1.     Contact any insurance company to cover the issue of the lawsuit

2.     Get an attorney/lawyer (fixed fee, hourly fee, contingency fee)

• pleadings

  • complaint: the lawsuit, a word document to say what you are suing for and why

  • service of process: serve a copy of the complaint on the defendant, a notice to say that you ARE suing

    • a processor has a summons (instruction sheet) to deliver it to the defendant

    • complaint + summons / waiver (give up and just email me)

    • if you waive, you get more time (90 days) until you must file a written response, if not you get 20 days

  • response:

    • answer: “I disagree, legally you can sue me, but what you are alleging isn’t true, this is why I’m correct”

      • counter claim: you sue the person right back right away / affirmative defenses

    • mtn to dismiss: “throw out this lawsuit, legally they can’t sue me for ___”

  • default judgment: if you don’t respond, you lose the lawsuit immediately

• motions:  

  • trying to get judge’s attention

  • judge doesn’t get involved in a lawsuit until you ask

  • a motion is a word document

• discovery: getting evidence in a case, find as much information as you can

• scope: relevant and not privileged evidence (need to communicate honestly and freely with their attorney)

  • interrogatories  asks written questions that get sent to the other side, and they will write out their answers. written word documents, used to get evidence from the other party to a lawsuit

  • depositions  when you ask a party, or a witness to come meet you at a court office and ask them questions under oath.

  • requests for production  plaintiff sends to defendant, asks for stuff from them. Copies of texts, medical records, anything physical that need to be come up with. written word documents, used to get evidence from the other party to a lawsuit

  • requests for admissions  plaintiff sends to defendant, list of conclusive statements, other side says either admit or deny. help to narrow down key issues in a case. written word documents, used to get evidence from the other party to a lawsuit

  • property inspections  when you need to access someone’s private property and get evidence from there

  • IME  independent medical examination, only do this if the person is claiming they have a physical or mental

  • subpoena  how to get stuff from a witness, asking from the company and for records

• pre-trial conference: where the attorneys meet with the judge in court, talk logistics (how many days, how many jurors, security, controversial?)

  • bench trial: trial goes before a judge only

  • jury trial: case goes before the court, judge is there but the decisionmaker is the jury

• voir dire : to see and to speak

  • process: a question and answer process, 30 people get ruled in, 7 people chosen ultimately

  • challenges (for cause vs. peremptory):

    • peremptory: only 3 people you can get rid of in the jury, should be use strategically

    • for cause: do this every single time, saying during q&a and a lady said she cannot be fair or impartial

• trial: after jury

  • opening statement  intro by the lawyers, saying this is my client, etc.

  • evidence  all of evidence that you found during discovery, gets presented to trial

    • rules of evidence: if it’s too prejudicial, cannot come into court, excluding or including evidence is by choice of the judge

  • mtns

  • closing argument

  • jury instructions

  • verdict

• post-trial motions

  • mtn for judgement notwithstanding the verdict:

  • mtn for new trial:

• appeal

  • filings:  

  • process:

• enforce judgment

  • garnishment

  • attachment

  • writ of execution