What is law?
consists of enforceable rules governing relationships among individuals and between individuals and their society
What feature do all laws have in common?
they establish rights, duties, and privileges that are consistent with the values and beliefs of a society or ruling group.
Breach
failure to perform a legal obligation
Primary Sources of Law
Sources that establish the law include the following...
1)The US constitution and the constitutions of various states
2) Statutes, or laws, passed by congress and by state legislatures
3) Regulations created by administrative agencies, such as the US Food
Secondary Sources of Law
Books and articles that clarify and summarize the primary sources of law
� Legal encyclopedias
� Compilations (such as restatements of the law, which summarize court decisions on a particular topic)
� Official comments to statutes
� Treatises
� Articles i
Constitutional Law
Federal and States have separate constitutions that set forth general organizations, powers, and limits of their respective governments
*constitutional law is the law expressed in these documents
Statute
Laws, orders, rules
Statutory Law
Laws enacted by legislative bodies at any level of government such as statutes passed by congress or by state legislatures (as opposed to constitutional law, administrative law, or case law)
Local Ordinances
.Included in statutory law
.Local Ordinances= statutes (laws, orders,rules) passed by municipal or county governing units to govern matters not not covered by federal or state law
*often have to do with city land use
Uniform Law
.Each state has the option to accept or reject uniform law
.Only if the state adopts the uniform law will that law become a statutory law of the state
Uniform Commercial Code (UCC)
Regulates commerce between states by providing a uniform yet flexible set of rules governing commercial transactions
Administrative Law
.Consists of rules, orders, and decisions of administrative agencies
.
Administrative Agency
Federal, State, or local government agency created to perform a specific function
Curiae Regis
.Latin for "Kings Court"
.William the Conquerors way of unifying his country
.What evolved in these countries was known as COMMON LAW
Common Law
Body of general rules that applied throughout the English realm
Precedent
court decisions that furnished an example or authority for decising subsequent cases involving identical or similar legal principles or facts
Stare Decisis (to stand on decided cases)
.Common law doctrine under which judged are obligated to follow the precedents established in prior decisions
.The importance of precedents in judicial decision making....
o Stare decisis has two aspects
1) divisions made by a higher court are binding on
Binding Authority
source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being devided as well as court decisions that are controlling precedents within the jurisdiction
Persuasive Authority
any legal authority or source of law that a court may look to for guidance by on which it need not rely in making its decision. Persuasive authorities include cases from other jurisdictions and secondary sources of law.
Remedy
.the means given to a party to enforce a right or to compensate for the violation of a right
Equity
is a branch of law founded on what might be described as notions of justice and fair dealing, that seeks to supply a remedy when no adequate remedy at law is available
Equitable Principles and Maxims
general propositions or principles of law that have to do with fairness (equity)
Jurisprudence
involves learning about different schools of legal thought and discovering how each schools approach to law can affect judicial decision making
The Natural Law School
� if a written law is unjust then it is not a true natural law and need not be obeyed
Legal Positivism
.there can be no higher law than the nations positive law
.the law is the law and must be obeyed even if its unjust
Historical School
a school of legal thought that emphasizes the evolutionary process of law and looks to the past to discover what the principles of contemporary law should be
Statute of Limitations
a federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced
Legal Realism
.idea that law is just one of many institutions in society and that it is shaped by social forces and needs
.because the law is a human enterprise, judges should take social and economic realities into account when deciding a case
.law can never be applie
Sociological School
A school of legal thought that views the law as a tool for promoting justice in society
Substantive Law
All laws that define, describes, regulate, and creates legal rights and obligations
Procedural Law
law that establishes the methods of enforcing the rights established by substantive law
Cyber Law
informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the internet
Civil Law
spells out the rights and duties between persons and between persons and their government, and the relief available if someones rights are violated
Civil Law System
A system of law derived from that of the Roman Empire and based on code rather than case law; the predominant system of law in the nations of continental Europe and the nations that were once their colonies. In the US, Louisiana, because of its historical
Criminal Law
law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.
National Law
law that pertains to a particular nation
International Law
law that governs relations among nations. National laws, customs, treaties, and international conferences and organizations are generally considered to be the most important sources of international law.
Appellant
party that appeals a case to another court or jurisdiction from the court in which the case was originally brought.
*also known as PETITIONER
Appelle
Party against which the appeal is taken
*also known as RESPONDENT
Opinion
containts the courts reasons for its decision, the rules of law that apply, and the judgement
Per Curiam (of the court)
an opinion that does not indicate which judge or justice authored the opinion
Briefing
A method of case analysis
5 steps to Briefing
o 1) Citation- give the full citations for the case, including the name, date, and court that decided it
o 2) Facts- briefly indicate (a) reasons for the lawsuit (b) identity and arguments of the plaintiffs and defendents (c) the lower courts decision if
IRAC Method
.method to determine a legal outcome
� Issue
� Rule of law
� Application
� conclusion
Judicial Review
process by which a court decides the constitutionality of legislative enactments and actions of the executive branch
Jurisdiction
the power to speak law
Long Arm Statutes
a court can exercise personal jurisdiction over certain out of state defendants based on activities that took place within the state
Corporate Contacts
the requirement is usually met when a corporation advertises or sells its products within the state, or places its goods into the "Stream of Commerce
General (Unlimited) Jurisdiction
state trial court
federal district court
Limited Jurisdiction
Probate Courts
Probate Court
are state courts of limited jurisdictions that handle only matters relating to the transfer of a persons assets and obligations after that persons death, including matters relating to the custody and guardianship of children
Bankruptcy Court
a federal court with limited jurisdiction that handle only bankruptcy proceedings, which are governed by federal bankruptcy law
What defines a courts jurisdiction?
.Usually defined in the statute or constitution creating the court
.In both the federal and state court systems, a courts subject matter jurisdiction can be limited not only by the subject of the lawsuit by also by the amount in controversy, by whether a
Original Jurisdiction
.the first time a case sees trial and evidence is presented
Trial Court
.any court having original jurisdiction is normally known as a trial court
Jurisdiction of the Federal Courts
.federal courts have limited power
.federal courts have subject matter jurisdiction in two situations
1) federal question
2) diversity of citizenship
Federal Question
.Whenever the plaintiffs cause of action is based, at least in part, on the US Constitution, a treaty, or a federal law, then a FEDERAL QUESTION arises, and the case comes under judicial power of the federal courts
.Any lawsuit involving federal question,
Diversity of Citizenship
The most common type of diversity jurisdiction has two requirements (1) the plaintiff and defendant must be residents of different states (2) the dollar amount in controversy must exceed $75,000.
.for purposes of diversity jurisdiction a corporation is a
Concurrent Jurisdiction
When both federal and state courts have power to hear a case, as is true in diversity of citizenship cases CONCURRENT JURISDICTION exists
Exclusive Jurisdiction
When a case can only be heard in state courts or only be heard in federal courts
Sliding Scale Standard
.Used for determining when the exercise of jurisdiction over an out of state defendant is proper (court has identified 3 types of internet business contacts) (1)substantial business conducted over the internet (with contracts and sales, for example) (2) s
Standing to Sue
the requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has either been injured or threatened with injury.
Justiciable Controversy
A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.
2 State court Systems
1) Trial courts with general (unlimited) jurisdiction
2) Trial courts with limited jurisdiction
State Courts may include....
.trial courts of limited jurisdiction
.trial courts of general jurisdiction
.appellate courts
.states highest court (often called state supreme court)
Small Claims Court
a special court in which parties may litigate small claims (such as 5k or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties
Every state has at least one _______ court
Appellate (court of appeals, reviewing court)
.this may be an intermediate appellate court or the states highest court.
.
Appellate Court
Panel of three or more judges reviews the record of the case on appeal, which includes transcript of the trial proceedings, and determines whether the trial court committed an error.
.usually appellate courts focus on questions of law, not questions of fa
Question of Fact
deals with what really happened in regard to the dispute being tried--such as whether a party actually burned a flag
Question of Law
concerns the application or interpretation of the law--such as whether flag burning is a form of speech protected by the First Amendment to the US constitution
.only a judge can rule on QUESTIONS OF LAW
Highest Appellate Court (state)
.usually called the supreme court of the state by may be called by some other name
.New York and Maryland, the highest state court is called the court of appeals
.*****!!!!!the decisions of each states highest court are final on all questions of state law
Federal Court System
Basically a three-tiered model consisting of (1) US district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction, (2) US courts of appeals (intermediate courts of appeals) (3)the United States Supreme Court
U.S. District Courts
.At the federal level, the equivalent of a state trial court of general jurisdiction is the district court
.there is at least one federal district court in every state
.US district courts have original jurisdiction in federal matters
.federal cases typica
U.S. Courts of Appeals
.In the federal court system there are 13 US courts of appeals--also referred to as US circuit courts of appeals
.US Court of Appeals for the District of Colombia Circuit(12th circuit), hear appeals from the federal district courts located within their re
United States Supreme Court
.We have one national court and all other courts in the federal system are considered "inferior" compared to Supreme Court
. Consists of nine justices
. Most of its work is as an appeal court but sometimes hears original cases
. Can review any case decide
Writ of Certiorari
. To bring a case before the Supreme Court, a party requests that the Court issue a WRIT OF CERTIORARI. a WRIT OF CERTIORARI is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.
Rule of Four
. The Court will not issue a writ unless at least four of the nine justices approve of it.
Petitions Granted by the Court
. The Court grants petitions when cases raise important constitutional questions or when the lower courts are issuing conflicting decisions on a significant issue.
Litigation
Process of working a lawsuit through the court system
Pleadings
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
Complaint
The COMPLAINT contains a statement alleging (1) the facts necessary for the court to take jurisdiction (2) a brief summary of the facts necessary to show that the plaintiff is entitled to a remedy (3) a statement of the remedy the plaintiff is seeking.
Summons
. Notifies the defendant that they must file an answer to the complaint with both the court and the plaintiffs attorney within a specified time period (usually 20 to 30 days)
Default Judgment
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiffs claim
Answer
The defendants ANSWER either admits the statements or allegations set forth in the complaint or denies them and outlines any defense that the defendant may have.
Counterclaim
A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff
Reply
Procedurally, a plaintiffs response to a defendants answer.
Affirmative Defense
When the defendant admits the truth of a complaint but raise new facts that may result in dismissal of the action
Motion to Dismiss
Requests the court to dismiss the case for stated reason
Motion for Judgment on the Pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
Motion for Summary Judgment
A motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
Discovery
. Before a trial begins, each party an use a number of procedural devices to obtain information and gather evidence about the case from the other party or from third parties.
. Discovery is allowed regarding any matter that is not privileged and is releva
Deposition
Sworn testimony by a party to the lawsuit or any witness. (directed to a witness)
Interrogatories
A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath. (directed to a party)
Voir Dire (to speak the truth)
. The jury selection process
. During this process attorneys for the plaintiff and the defendant ask prospective jurors oral questions to determine whether a potential jury member is biased or has any connection with a party to the action or with a prospe
Challenging a Juror Peremptorily
. During voir dire a party may challenge a prospective juror PEREMPTORILY--that is, ask an individual not be sworn in as a juror without providing any reason.
Challenging a Juror for Cause
. A party may challenge a prospective juror for CAUSE--that is, provide a reason why an individual should not be sworn in as a juror.
Motion for a Directed Verdict
. In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to supper his or her claim.
*kno
Award
. In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator
Motion for Judgment n.o.v. (non obstante veredicto "not withstanding the verdict)
. A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jurys verdict against him or her was unreasonable and erroneous
Motion for a New Trial
. A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new rial is necessary to prevent a miscarriage of justice.
Qualifications for Appeal
. A party cannot appeal a trial courts decisions simply because he or she is dissatisfied with the outcome of the trial.
. A party must have legitimate grounds to file an appeal; that is, he or she must be able to claim that the lower court committed an e
Brief
. A formal legal document outlining the facts and issues of the case, the judges rulings or jurys findings that should be reversed or modified, the applicable law, and arguments on the APPELLANT (petitioners) case
Appellate Court has 5 options after reviewing a case:
1) the court can AFFIRM the trial courts decision
2) the court can REVERSE the trial courts judgment if it concludes that the trial court erred or that the jury did not receive proper instructions
3) the appellate court can REMAND (send back) the case to
Alternative Dispute Resolution (ADR)
. The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiations, mediation, and arbitration are forms of ADR
Negotiation
. Process in which the parties attempt to settle their dispute informally with or without attorneys to represent them.
Mediation
. A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement
Arbitration
. The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding
Arbitration Clause
. A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
Issue of Arbitrability
. Whether the matter is that to be resolved by arbitration under the arbitration clause.
. If the court finds that the subject matter in controversy is covered by the agreement to arbitrate--even when the claim involves the violation of a statute, such as
Federal Form of Government
. A system of government in which the states form a union and the sovereign power is divided between the central government and the member states
Checks and Balances
. The principle under which the powers of the national government are divided among three separate branches--the executive(enforces laws), legislative(make laws), and judicial branches(interprets laws)--each which exercises a check on the actions of the o
Examples of Checks and Balances
1) The legislative branch (congress) can enact a law, but the executive branch (president) has the constitutional authority to veto that law
2) The executive branch is responsible for foreign affairs, but treaties with foreign governments require the advi
Commerce Clause
. The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce
Police Powers
. Powers possessed by the states as a part of their inherent sovereignty.
. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare
Supremacy Clause
. The requirement in the constitution that provides that the constitution, laws, and treaties of the US are "the supereme law of the land", under this clause, state and local laws that directly conflict with federal law will be rendered invalid
Preemption
. A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws
* When a federal statute creates an agency--such as the National Labor Relations Board--to enforce the law, the agencys rulings on matters that
Bill of Rights
. First ten amendments of the U.S. Constitution
. The rights secured by the Bill of Rights are not absolute
. Many of the rights guaranteed by the first ten amendments are described in very general terms
First Ten Amendments
1) freedom of religion, speech, and press
2) right to keep and bear arms
3) prohibits in peacetime, the lodging of soldiers in any house without the owners consent
4) prohibits unreasonable searches and seizures of persons or property
5) guarantees rights
Symbolic Speech
. Gestures, movements, articles of clothing, and other forms of expressive conduct--is also given substantial protection by the courts
Corporate Political Speech
. Political speech by corporation also falls within the protection of the first amendment
Commercial Speech
. Courts also give substantial protection to COMMERCIAL SPEECH, which consists of communications--primarily advertising and marketing--made by business firms that involve only their commercial interests.
. COMMERCIAL SPEECH will be considered valid as lon
Unprotected Speech
. Speech that harms the good reputation of another, or defamatory speech, will not be protected.
. Speech that violates criminal laws (such as threatening speech)
. FIGHTING WORDS or words that are likely to incite others to respond violently
. Does not p
Obscene Speech
. Four set requirements that makes speech OBSCENE
1) the average person finds that it violates contemporary community standards
2) the work taken as a whole appeal to a prurient (arousing or obsessive) interest in sex
3) the work shows patently offensive
Establishment Clause
. The provision in the First Amendment to the U.S. Constitution that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over the other.
.
Free Exercise Clause
. The provision in the First Amendment to the Constitution that prohibits the government from interfering with peoples religious practices or forms of worship
. Guarantees that a person can hold any religious belief that he or she wants, or a person can h
5th and 14th Amendment
. Two other constitutional guarantees of great significance to Americans are mandated by the due process clauses of these two amendments; as well as the equal protection clause of the 14th amendment
* both of these amendments provide that no person shall
Due Process Clause
. The DUE PROCESS CLAUSE of each of the 5th and 14th amendment has two aspects-- Procedural and Substantive
* note that the due process clause applies to "legal persons," such as corporations, as well as to individuals
Procedural Due Process
. Requires that any government decision to take life, liberty, or property must be made fairly--that is, the government must give a person proper notice and an opportunity to be heard.
Fair Procedure
. Interpreted as requiring that the person have at least an opportunity to object to a proposed action before a fair. neutral decision maker (who need not be a judge)
* Example: in most states a drivers license is construed as a property interest therefor
Substantive Due Process
. Protects an individuals life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them.
. This process limits what the government may do in its legislative and executive capacities
Equal Protection Clause
. Under the 14th Amendment a state may not "deny to any person within its jurisdiction the equal protection of the laws"
. This clause mandates that the state governments must treat similarly situated individuals in a similar manner
Strict Scrutiny
. If a law or action prohibits or inhibits some persons from exercising a fundamental right, the law or action will be subject to STRICT SCRUTINY by the courts
Intermediate Scrutiny
. Applied in cases involving discrimination based on gender or legitimacy
. Example: Because males and females are not similarly situated in this regard--only females can become pregnant--a law that punishes men but not women for statutory rape will be up
Rational Basis Test
. In matters of economic and social welfare, a classification will be considered valid if there is any conceivable "rational basis" on which the classificaton might relate to a LEGITIMATE GOVERNMENT INTEREST
. It is almost impossible for a law or action t