What is the law?
Enforceable rules that govern 2 types of relationships among individuals and society
4 Basic Functions of Law
1. Keeping the peace
2. Enforcing rules to maintain order
3.Facilitating planning
4. Promoting social justice
A Naturalist
Thinks that morals and ethics are inherent in human nature. Problems because our morals/ethics aren't all the same.
A Positivist
Believes that the law is created by a particular society at a particular point in time. Doesn't care if the law is good or bad - "That's the law, we have to follow it.
A Realist
Focuses on judges, feels that judges are key to our law. Realists believe judges are influenced by own beliefs and attitudes. Believe judges should follow precedent, if appropriate. Believe judges should consult information from outside the law.
The Common Law Tradition
Stare Decisis -> stand on prior decisions
Other Sources of American Law
-The Constitution (most powerful)
-International Doctrines & Treatees
-Statutes & Ordinances (state and local legislature)
-Administrative Law (Federal Agencies)
-Common Law Codes (least powerful)
Classifications of Law (4)
-Substintive
-Procedural
-Public Law (criminal)
-Private Law (civil)
Substintive
Laws that define, describe, or create a right
Procedural
How to enforce your substintive rights (how, when, where to file a lawsuit)
Public Law (criminal)
Rules that govern relationships between individuals and society
Private Law (civil)
Rules that govern relationships among individuals
Equity
-A last ditch effort to find a source of law
-What's just & fair (does have substance)
-Weakest of all, but not a weak concept
3 remedies when suing in equity
1. Injunction - order from a court saying "whatever you're doing, stop it."
2. Rescission - undo an agreement
3. Specific performance - court has ordered you to do what you promised that you would do. Has to be unique. Ex. art, antiques, things you can't
Federalism
Means the power is shared, it's divided
Supremecy Clause
State vs. federal, federal would win because they are more supreme to state (has to be direct conflict)
-Preemption - federal can say "stay out, don't even try to pass a law." ex. airlines/nuclear power plants
Judicial Review
Courts are going to determine if the court is acting constitutional
-What are they allowed to review? Legislation, decisions of lower courts, executive acts
Separation of Powers
3 branches (legislation, executive, judicial) - means "stay in your own lane"; each have own function & can't do something somebody else does. There is checks and balances
State Action (government action)
You can only evoke constitutional action if the government is in the fight... criminal case
Commerce Claus
Commerce means conduction business - foreign, inter. & intrastate commerce is all regulated by federal government which is set by the commerce clause (there is no other type of business)
Federal Fiscal Powers
1. Taxation - only limit is that it must be geographically uniform i.e. federal tax rate is the same in every state
2. Spending - must show standing & an immediate/direct injury to sue on their spending
3. Borrowing and Coining Money - national banking sy
Limits on the Governemt
-Contract Claus
-1st Amendment
-Due Process
-Equal Protection
Contract Claus
Prohibits the government from retroactively changing the terms of contracts
1st Amendment
Freedom of speech - not an absolute right, gov't can regulate time/manner/place as long as they don't show favoritism.
Defamation - intentional, FALSE communication that harms someone's reputation
Noncommercial speech is protected more than commercial
Due Process
Gov't says you can't be deprived of life, liberty, or property without due process
2 Parts: Substintive and procedural
-Substintive: focuses on the content of the law, can't be arbitrary or unreasonable
-Procedural: procedures must be fair; entitled to no
Equal Protection
All people are entitled to equal protection under the law. The law can't discriminate case by case (male vs. female) very rare that you have an equal protection law without substintive process
Administrative Law: General Background
-Most agencies are part of executive branch, president can appoint/remove officers
-Some agencies are independent (all others are executive). They basically answer to no on and can only remove officers "for cause
Creation of Agencies
-Congress created agencies then decides if it's independent or executive
-"Enabling legislation" means creating a new agency 1. the name 2. the composition 3. general powers
Operation of Agencies (3 Functions)
1. Rule Making
2. Enforcement
3. Adjudication
Agency Rule Making
-Rules/regulations from agencies are binding
-2 types of rules:
-Procedural: methods of operations for that agency
-Interpretive: Not all agencies have them, explanations on how an agency intends to apply its own rule. -> can pass them formal or informal
Agency Enforcement
An agencies power to investigate
-Limits: 4th amendment; has to be relevant, protected from unreasonable search & seizure (must have a warrant)
When can you have warrantless arrests?
1. Incident to arrest
2. Emergency
3. Plain view exception
4. Consent
Another limit
5th amendment "right to remain silent" can't be forced to incriminate yourself. Corporations can't use it, only people
Agency Adjudication
The judgement - have your hearing in front of the agency and they'll decide if you violated their rules
Control over Agencies
1. Administrative Procedures Act
2. Executive Branch
3. Legislative Branch
4. Judicial Review
Administrative Procedures Act
Broad, general procedures that all agencies must follow
Executive Branch
-Appoint/remove officers of agencies under the branch
-President can veto enabling legislation from creation of another agency
Legislative Branch
-All agencies created by Congress & can also dissolve an agency
-Can limit powers of agency
Judicial Branch
Judicial review
Jurisdiction
The power of a court to hear and decide a case - most courts are limited by the boundaries (i.e. city, county, state) - Exception is "Long Arm
Type of Jurisdiction (4)
1. In Personam - over the person because that person has jurisdiction with the court (i.e. living there/event happened there)
2. In Rem - jurisdiction because you own real property within court's boundaries
3. Long Arm - jurisdiction over a nonresident (i
Venue
A specific court that has jurisdiction, venue tells us which one to pick (what's fair and convenient)
Standing
Each party must have a legal stake in the controversy (controversy must be real, not hypothetical)
A typical State Court System
Trial Court (county court) - the fact finder and apply law
Kansas Court of Appeals (appellate court) - law and procedure, not facts
Kansas Supreme Court (appellate court) - law and procedure, not facts
County court has general subject matter jurisdiction
Federal Court System
-Not necessarily better than state, just different
-3 levels: 1 trial, 2 appellate
-U.S. tax court/bankruptcy court have limited subject matter jurisdiction
-Easier to get in state system than federal
Jurisdiction of Federal Courts
-Limited by the Constitution
1. Involves a constitutional question
2. Involves both diversity of citizenship AND the amount in controversy is $75,000 or more (diversity of citizen: citizens of different states or foreign citizen & american citizen)
Concurrent
When plaintiff qualifies for both federal and state
Exclusive
When plaintiff does not qualify for both federal and state
Ex. Divorces/adoptions are exclusively state
Bankruptcy/copyrights/trademarks are exclusively federal
Stages of a Lawsuit
1. Pleading
2.Discovery
3.Trial
4.Appellate
Pleading
-Petition/complaint (plaintiff serves)
-Answer (defendant answers)
Difference between civil & criminal:
Gov't is always plaintiff for criminal case
Discovery
-Both sides finding out about other side's case
-Deposition (answer questions under oath)
-Written Inarogatory (work through answers with attorney)
-Request for documents
Physical or mental exam
Trial
-Don't get there a lot
-Expensive
Steps of Trial:
1. Choose a jury (don't always have one; or can be 6 or 12 people)
2. Opening statement
3. Case in chief
4. Closing statement
5. Instructions to jury
6. Decision/final verdict
Difference between civil & cr
Appellate
Appeal now to Kansas Court of Appeals; can affirm, reverse, & remand (re-do)
Difference between civil & criminal:
-Double Jeopardy - criminal: defendant is equitted of a crime, they can't be tried for the same crime twice; civil: they can appeal
Alternative Dispute Resolution (ADR)
1. Negotiation
2. Mediation
3. Arbitration
4. Mini Trial
*Note: Most people choose to go with ADR because quicker/cheaper/private
Negotiation
Parties try to resolve issue with discussion (least formal)
Mediation
-3rd party involved, getting other 2 parties to work together
-Facilitates discussion, does not make decision
-Most common for custody
Arbitration
-3rd party involved, makes decision
-Statutes to govern who can be arbitrator
-Decisions can be appealed but then sent to court
-Mandatory Arbitration Clause: sign job contract that says if dispute over job, can't go to court - dispute settled by arbitrat
Mini-Trial
-Neutral 3rd party decides case
-No jury, courtroom
-Not limited by court rules and procedures
White Collar Crime
Crimes that are nonviolent and deceitful
-Bribery
-Money Laundering
-Insider Trading
Bribery
-Can be anything of value (money, car)
-Need to look at people involved:
-Person offering committed the crime as soon as he offers
-Person accepting gift, commits crime as soon as he accepts the gift
Money Laundering
-Money from illegal activities but trying to make it look like legitimate money
-Normally use restaurant, bar, and massage parlor as front because normally big cash businesses
-Federal law to report $10,000
Insider Trading
-Making money buying/selling market securities using material inside information, once it's public everyone can use it
*NOTE: Corporations can be charged with crimes. Look at upper management for intent: upper managerial rule, can be jailed if crime sever
RICO: Racketeer Influence and Corrupt Organizations Act
-Purpose: keep organized crime out of businesses
-Combination of federal and state crimes that have been broken (both civil and criminal penalties)
Constitutional Amendments that Protect Criminal Proceedings
4th Amendment
5th Amendment
6th Amendment
8th Amendment
4th Amendment
-Admin. Law - no unreasonable search and seizures
-Limits on warrants/consent
-Big in criminal cases
5th Amendment
-Federal Agencies
-Right to remain silent, individuals only
-Due process (constitutional law)
-Equal protection; law can't be discriminatory
-Double jeopordy
6th Amendment
-Trial Rights
-Speedy trial, can be waved with motions filed
-Maybe a jury, mostly criminal
-Right to confront witnesses, right to be in the courtroom
-Right to attorney if potential for jail time
8th Amendment
-Protects people from cruel and unusual punishment
-Excessive fines, too high of bail
-Go to appellate court for decision
Self-defense
How much force can I use to protect myself and others? Reasonable and may include deadly
Defense of Property
How much force can I use to protect my property? Reasonable, majority never deadly; ex. shotgun in house constantly being broken into
Duress
-Threatened with serious, immediate bodily harm
-Normally don't charge you
ex. gun to your head, drive get away car
Mistake of Fact
You reasonably don't know you are committing a crime ex. driving laws are different in other states
Entrapment
Induce by a law officer to commit a crime
Intentional Torts Against People: Assault
Intentional act that corrects a reasonable apprehension or fear of harmful or offensive contact
Intentional Torts Against People: Battery
-Intentionally harmful or offensive contact
-Extends to anything you are touching/connected to
-Can have battery without assault
Intentional Torts Against People: False Imprisonment
Intentional confinement or constraint without justification
Ex. detaining shoplifters - need to have reasonable cause and reasonable confinement
Intentional Tort Against People: Infliction of Emotional Distress
Business uses harrasive methods to collect debt
Intentional Tort Against People: Defamation
Intentional and false communication that injures someone's reputation
Intentional Tort Against People: Fraud
(Must have all 5 Elements) Intentional misrepresentation of a material fact which there was reasonable alliance and damages
Intentional Tort Against Property: Trespass (Real Property)
-Real Property - land and permanent attachments
1. Without permission, intentionally enters onto another's land OR
2. Causes something to enter onto another's property OR
3. Allow something to remain on another's real property
*Reasonable intrusions are p
Intentional Tort Against Property: Trespass (personal property)
-Personal Property - anything you can move
-When you intentionally interfere with someone's use or enjoyment of their personal property
-Conversion is same definition but more severe degree - more permanent basis
Intentional Tort Against Business: Wrongful Interference with a Contractual Relationship
-Valid/legal contract AND
-3rd party knows about the contract AND
-3rd party intentionally causes a breach of contract
ITA Business: Wrongful Interference with a Business Relationship
-Competition (predatory behavior - intentionally soliciting 1 competitor's customer or clients)
ITA Business: Appropriation
-Intentionally using a business' name or likeness without permission for economic gain
-The business must show that it's unique
ITA Business: Disparagement of Property
-Intentional false communication about a business' products or services that causes economic injury
-Business form of defamation
Negligence
-Unintended consequences from actions that had risk (malpractice)
-4 elements: duty of care, breach, legal injury, causation
Duty of Care
-Duty is established by looking at a reasonable in light of capabilities person
-Minor or diminished mental state, bar may be lowered
-Look at statutes, law might set standards for you
Breach
-Failed to exercise reasonable care
-Intentional or careless actions
-Can be an act or omission
Legal Injury
-Legally recognized injury (doesn't have to be physical)
-Must cause harm
-Compensatory - to make you feel whole had that event not occurred (fix car from crash/broken leg/$ lost from missing work)
-Punitives - means punish the wrong-doer
-If plaintiff co
Causation
-Causation in fact - there's connection between the breach and the injury
-Proximate cause - forseeability; would a reasonable person forsee the injury?
Defenses to Negligence
1. Assumption of risk - knowingly and voluntarily entered into a risky situation
2. Contributory Negligence - both parties failed to use reasonable care (plaintiff recovers nothing)
3. Comparative Negligence - both parties failed to use reasonable care, p
The Last Clear Chance Doctrine
If plaintiff could've reasonably avoided injury and fails to do so, they recover nothing
Problem is proof
Strict Liability
-Courts will hold you responsible regardless of fault
-Abnormally dangerous/exceptionally hazardous activities (not necessarily illegal)
-Money in this is bigger and only have one thing to prove
-Ex. walking a lion and it attacks/imploding building/Bic li