Preemption
1. federal law is so pervasive, comprehensive, or detailed that it leaves state and local law no room to supplement it
2. federal law creates a federal regulatory agency that is empowered to enforce federal law
Supreme Court
You cannot file a proceeding for probate of a will in
decision needs to be made in business
requires extensive review of "the law" knowledge and consideration of established legal doctrine
first primary source of law
the constitution
The purpose of these "secondary sources of law
summarize and clarify the primary sources
Secondary sources of law
encyclopedias, articles, law reviews, books, journals, and even the internet
second category of primary sources of law
statutes
Legislative laws are almost always signed into law by signature of the
chief executive:
the President on the federal level, the governor on a state level
jurisprudence
*the science or philosophy of law; a system of
laws
*philosophy of law
*(study of) law
*The study of different schools of legal
philosophy and how each can affect judicial
decisionmaking."NHLLS "Natural Law Theory
Historical School Legal Positivism Legal
the law
A body of enforceable rules governing relationships among individuals and between individuals and their society.
Statutes are "coded" or
organized by subject matter to locate easily
Statutes also include local "ordinances
being laws, rules, and orders of municipal governments such as counties, cities, towns, and villages
types of "ordinances
zoning laws, building codes, curfews, and similar laws protecting the public safety and well being
Uniform Law
unofficial legislative proposal in U.S., addressed to fifty state legislatures. The purpose of the uniform law is to promote consistency among the states regarding same field of law.
National Conference of Commissioners on Uniform State Laws(NCCUSL) 1892
promotes uniformity in state laws on all subjects where uniformity is deemed desirable and practicable
UIEFSA
Uniform Law dealing with interstate enforcement of child support obligations
Uniform Commercial Code
uniform law that has been adopted by all 50 states and is extensively utilized in business to resolve disputes involving commerce
UCCJEA
uniform laws dealing with child custody disputes jurisdiction
Supreme law of the land
federal constitution
four primary sources of law
Constitutional Law
Statutory Law
Administrative Law
Case Law
Constitutions
*Written plans of government
*setting forth the fundamental rights of the
people living within the United States or a given
state, describing and empowering the various
branches of government, and prescribing
limitations on that power;
*Plan of government
Statutes
*a written law passed (enacted) by a legislative body
(federal congress & state legislatures)
*ordinances adopted by a given locality;
Administrative Rules and Regulations
*Issued by executive branch officials when
authorized to do so by congress
*promulgated by federal, state, and local r
egulatory agencies
Common law
which is the body of judicial decisions that interpret and enforce any of the foregoing as well as those relationships among individuals or between individuals and their society which are not subject to constitutional, statutory, or administrative law.
United States Constitution takes precedence over
federal statutory law
federal statutory law, which takes precedence over
a state constitution
a state constitution, which takes precedence over
state statutory law
state statutory law, which takes precedence over
a local ordinance
a local ordinance, which takes precedence over
administrative rules and rulings
administrative rules and rulings, which take precedence over
common law
third catagory of primary law
Administrative Law
Administrative Law
is the body of rules, orders, and decisions issued by administrative agencies, such as the federal Securities and Exchange Commission or a state's public utilities commission
Administrative Agencies
Agencies authorized by federal or state legislation to make and enforce rules to administer and enforce legislative acts
(e.g., the Social Security Administration).
Executive Agencies
Independent Regulatory Agencies:
Executive Agencies
Agencies formed to assist the President or, at the state level, the Governor, in carrying out executive functions
(e.g., the Justice Department).
Independent Regulatory Agencies
Agencies neither designed to aid nor directly accountable to the legislative or executive branches (e.g., the Securities and Exchange Commission).
States Level Agencies (e.g. NY)
The Department of Health(DOH) The Department of Environmental Conservation(DEC)
The Department of Transportation(DOT
Federal level agencies are
The Federal Trade Commission(FTC)
The Food and Drug Administration(FDA),
The Environmental Protection Agency(EPA)
The Federal Aviation Administration(FAA)
the departments and agencies who promulgate rules and regulations also
enforce them through an internal hearings process
caring the same impact on a business and on society as if they were enacted by the legislature
equal to a statute
Enabling Legislation
Legislative action specifying the name,
purpose(s),
function(s), and
power(s)
of the agency created by the legislation
Rulemaking
The process of formulating new regulations
Rulemaking by federal agencies typically occurs in the following steps
Notice of Proposed Rulemaking
Comment Period
Final Rule
Notice of Proposed Rulemaking
A proposed rule and some discussion of its rationale are published by the agency in the Federal Register. The notice invites public comment and notifies the public of the times and places of any hearings on the proposed rule
Comment Period
Following publication in the Federal Register, the agency must allow ample time for public comment. The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying th
Final Rule
Once the final version of the rule is decided upon by the agency, it will be published first in the Federal Register and then compiled annually in the Code of Federal Regulations
subpoena
notice ordering someone to appear in court
subpoena duces tecum
a court order to produce documents or records
search warrant
A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence
To determine if an agency is overstepping its bounds in conducting an investigation, courts may consider
Legitimate purpose of investigation
Relevance of the information sought
Specificity of agency's demand for testimony or
documents
Burden of the demand places on the entity
stare decisis
let the decision stand
The doctrine by which judges are obligated to follow precedents established within a particular jurisdiction
precedent
The authority afforded to a prior judicial decision by judges deciding subsequent disputes involving the same or similar facts and the same jurisdiction's substantive law
Binding Authority
Persuasive Authority:
Binding Authority
any source of law that a court must follow when deciding a case
Any primary source of law a court must follow when deciding a dispute. This includes all constitutional provisions, statutes, treaties, regulations, or ordinances that govern the issue being
Persuasive Authority
*Any legal
authority or
source of law
that a court may
look to for
guidance but
need not follow
when making its
decision.
*court decisions from an equal or a lower court
from the same jurisdiction or from a court in a
different jurisdiction
*Analogous cou
binding precedent
*The decisions of higher courts that set the legal
standards for similar cases in lower courts within
the same jurisdiction.
*A decision of a higher court that must be
followed by lower courts in the same hierarchy.
*A precedent that must be followed by a
Courts of Law
*monetary relief
*courts that awarded compensation
*empowered only to award wronged parties
money or other valuable compensation for their
injuries or other losses
*A court in which the only remedies that could be
granted were things of value, such as mon
Courts of Equity
*formal chancery courts
*A court that decides controversies and
administers justice according to the rules,
principles, and precedents of equity.
*empowered to award any manner of non- monetary relief, such as ordering a person to do
something (a.k.a. "sp
Remedy
*to cure, correct
*a judicial order enforcing a right or redressing a
wrong
*The relief given to an innocent party to enforce a
right or compensate for the violation of a right.
legal remedy
*Money damages, economic compensation
equitable remedies
*any form of relief that does not involve a request
for monetary damages
*rescission and restitution, specific performance,
and reformation
The the United States the court of law and equity merged;
American courts still recognize legal remedies and equitable remedies.
equitable maxims
*general rules applied by courts to cases in equity
*General propositions or principles of law that
have to do with fairness (equity).
equities favor both parties
*the dequte must be decided according to the
law
Whoever seeks equity must come to the court with
clean hands";
Equity favors
substance over form
Equitable relief will be awarded only when there is
no adequate remedy at law
Whoever seeks equity must
do equity
Whoever seeks equity must pursue the vindication of their rights vigilantly...
or risk having their claims barred
dissenting opinion
*An opinion disagreeing with a majority in a
Supreme Court ruling.
*An opinion by one or more judges who disagree
with the judgment of the majority.
*A statement written by a justice who disagrees
with the majority opinion, presenting his or her
opinion
Concurring Opinion
*An opinion that agrees with the majority in a
Supreme Court ruling but differs on the
reasoning.
*An opinion by one or more judges who agree
with the majority's judgment, but not necessarily
with its reasoning.
*a signed opinion in which one or more memb
Plurality Opinion
*An opinion joined by the largest number (but less than a majority) of the judges who heard a case.
majority opinion
*An opinion joined by the majority (but not all) of the judges who heard a case.
Per Curiam Opinion:
*A unanimous opinion that does not indicate which judge wrote it
*a brief, unsigned court opinion
unanimous opinion
*the Supreme Court rules on a case in which all justices agree on the ruling
*An opinion joined by all of the judges who heard a case.
Opinion
The court's reasons for its judgment
Judgment
*the judicial decision in a court case
*final result of a trial
*: The court's disposition of an action.
Plaintiff
*petitioner (in court of law)
*(n) one who begins a lawsuit, accuser
*The party who filed a court action
Defendant
*The party against whom the plaintiff filed its
action.
*an individual or group being sued or charged
with a crime
*an individual, company, or institution sued or
accused in a court of law.
Appellant/Petitioner
*The party challenging the trial court's disposition of the action
*The party who takes an appeal from one court to another.
*the appealing party in an appeal
Appellee/Respondent
*The other party to a disposition that has been appealed.
*the responding party in an appeal
*the party against whom an appeal is taken
All opinions of the U.S. Supreme Court are published in
United States Reports ("U.S.")
the Court's official reporter
United States Reports ("U.S.")
("U.S.")
United States Reports
unofficial reports of Supreme Court decisions
Supreme Court Reporter ("S. Ct.")
Supreme Court Reporter
("S. Ct.")
("L. Ed." & "L. Ed. 2d")
United States Reports: Lawyers Edition
United States Reports: Lawyers Edition
unofficial," are more current and provide useful research and analysis aids not found in United States Reports.
U.S. Courts of Appeals published opinion
Federal Cases ("F. Cas."), the Federal Reporter ("F.", "F.2d" & "F.3d")
U.S. district courts in the 50 states, the District of Columbia, and certain U.S. possessions and territories published opinions
Federal Supplement ("F. Supp." & "F. Supp. 2d")
Old U.S. district court opinions
Federal Cases ("F. Cas.") and the first series of the Federal Reporter ("F.")
Bankruptcy Reporter ("B.R.")
Reports bankruptcy decisions from all federal courts.
Official Reporters
Every state other than Alaska at one time published the decisions of its highest court - and, in many cases, its intermediate appellate court(s) and even trial courts - in one or more official reporters (e.g., Connecticut Reports, Illinois Appellate Court
Unofficial Reporters
regional reporters that are part of West's National Reporter System
West's National Reporter System
regional reporters contain the published decisions of the highest appellate court(s) of each state, as well as, in many cases, the published opinions of each state's intermediate court(s) of appeals
Federal Register
Rules and regulations adopted by federal agencies appear first
published daily (except for weekends and holidays)
only sorted as to the contents of a single issue
Register as they are promulgated
Code of Federal Regulations (CFR)
newly-issued or revised rules and regulations are collected annually, along with all rules and regulations that remain unchanged and in effect
arranged topically
State Administrative Law:
reported varies from state to state
Consult with your local law librarian or government documents reference librarian for help
National Law
law of a particular nation
The various legal systems employed by the 200-plus nations of today's world can be roughly characterized as either "civil" or "common" law systems
International Law
The body of written and unwritten laws, including treaties, governing the relations between and among nations and between nations and the citizens of one or more other sovereign nations
(e.g., the Geneva Convention on the Treatment of Prisoners of War, th
Key questions raised by international law
(less present with respect to national law)
1. who will enforce the rights and obligations created by a particular international law?
2. how will they enforce those rights and obligations?
Uncodified Statutes
Shortly after a law is passed either by Congress or by a state legislature, it is reported in the form in which it passed. These uncodified statutes are typically reported in the order in which they are passed by the relevant legislative body, regardless
Uncodified statutes passed by Congress are reported in
United States Statutes at Large
Uncodified statutes passed by a state legislature are typically reported in a
session law" reporter (e.g., Texas Session Laws)
Codified Statutes
collected and reported by subject matter
Codified statutes passed by Congress are reported
United States Code, which has a number of "Titles," roughly corresponding to major subject matter areas.
Codified statutes passed by a state legislature are typically reported by subject in
state's code (e.g., California Commercial Code)
Federal Government
A form of government where states form a union and the sovereign power is divided between the national government and the various states
Separation of Powers
The national government of the United States of America is composed of three separate branches, each of which acts as a check on the others' power
Legislative Branch
Congress
which may override the President's veto and which may define the jurisdiction of the Judiciary and must confirm Judiciary appointees
Executive Branch
president
has the power to veto legislation passed by Congress and to appoint the members of the Judiciary
Judicial Branch
Supreme Court and lower federal courts
has the power to void the acts of the Executive and Legislative branches because they are unconstitutional
Supreme Court
contains 9 judges
THE REGULATORY POWERS
OF THE STATES
Police Powers
Balancing the Commerce Clause with the States' Police Powers
Police Powers
Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
As part of their sovereign powers, states possess the power to regulat
Balancing the Commerce Clause with the States' Police Powers
state regulations impinge on interstate commerce, courts must balance the state's interest in the merits and purposes of the regulation against the burden that the regulation places on interstate commerce. Generally speaking
if the state law substantially interferes with interstate commerce,
it will most likely be held to violate the Commerce Clause
to be unconstitutional
state laws enacted pursuant to the state's police powers are
presumed to be valid notwithstanding their effect on interstate commerce
Federal constitutional and statutory law and treaties supersede their state counterparts due to
the Supremacy Clause, Article VI, Section 2 of the U.S. Constitution
Bill of Rights
first ten amendments to the U.S. Constitution
The Bill of Rights protects
*individual rights
*our civil liberties
*legal persons, such as corporations and sole proprietorships, as well as natural persons
protections afforded by the Bill of Rights
are only against action by the federal government
the U.S. Supreme Court has incorporated the protections afforded by the Bill of Rights
Fourteenth Amendment
Fourteenth Amendment (1868)
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its ju
Amendment I (one)
Freedom of Religion, Speech, Press, Peaceably Assembly, and Petition the government
Amendment II (two)
Right to keep and bear arms
Amendment IV (four)
No unreasonable searches and seizures of persons
Amendment V (five) (1791)
guarantees fair payment for property taken for public use
guarantees the rights to due process of law
including indictment by grand jury
Amendment VI (six)
rights to a speedy and public (criminal) trial
assistance of counsel
cross-examine witnesses
to solicit favorable testimony
trial by jury in both criminal
Amendment VII (seven) (1791)
trial by jury in civil cases involving more than $20
Amendent VIII (eight)
prohibits excessive bails and fines, as well as cruel and unusual punishment
freedom of speech
corporate political (speech and symbolic speech)
1st amendment
Symbolic speech
includes all forms of expressive conduct, including gestures, movements, and clothing
Commercial speech restriction
promotes a substantial government interest
directly advances said interest
is no more restrictive than necessary in order to achieve the substantial government interest
Unprotected speech:
speech (i.e., slander) or writing (i.e., libel) that defames or harms the good reputation of another person,
threatening or "fighting" words
obscene or pornographic speech
Freedom of Religion
establishment clause
prohibits government from establishing a state-sponsored religion
passing laws that promote or show a significant preference for one religion over another
that impose a significant burden on one or more religion(s)
free exercise clause
prohibits government from compelling anyone to do something contrary to his religious beliefs or restricting anyone's legitimate exercise of his religious beliefs, except where public policy or public welfare require government action.
analyzing a federal or state law or regulation as it relates to free excercise clause
focus on the primary effect of the law or regulation, not any secondary effect
As long as the law or regulation does not promote or place a significant burden on religion, it will not be deemed unconstitutional simply because it has some impact on religio
primary effect
tendency to recall the first terms of list
due process of law
Procedural Due Process
Substantive Due Process
procedural due process of law
requires that any government decision to take life, liberty, or property must be made fairly
giving the person(s) from whom life, liberty, or property is to be taken prior notice and the opportunity to be heard by an impartial decisionmaker
substantive due process
requires that the interest of the state to be served by any law or other governmental action be weighed against the right of the individual(s) against whom the law or action is directed
Judicial interpretation of the Fifth and Fourteenth Amendments' due p
A fundamental right
(e.g., free speech, interstate travel, privacy)
A fundamental right will be protected unless
the government can show a compelling state interest
(e.g., public safety)
a law or action will not violate substantive due process as long as
it is rationally related to any legitimate governmental purpose
fundamental right to personal privacy from the provisions of
First, Third, Fourth, Fifth, and Ninth Amendments
Congress has passed a number of statutes protecting individual privacy
Freedom of Information Act
Health Insurance Portability and Accountability Act (HIPAA)
Freedom of Information Act
affords individuals access to information collected about them by the federal government
Health Insurance Portability and Accountability Act (HIPAA)
requires health-care providers and health-care plans, including certain employer-sponsored plans, to inform patients/plan members of their privacy rights and to safeguard personal medical records from disclosure for non-health care purposes
The USA Patriot Act, enacted in 2001
empowered government agencies to access and monitor electronic, financial, and other personal data and communication
Congress has also passed legislation authorizing government encroachment into individual privacy
Wicker vs. Filburn (1942)
Cooperative Federalism , Filburn, an Ohio farmer who harvested wheat for home consumption and for sale, was fined $117 for violating a federal scheme devised to limit wheat production. Filburn sued arguing that the scheme was unconstitutional insofar as i
Heart of Atlanta Motel v. United States (1964)
Creative Federalism, upheld the Civil Rights Act of 1964 and the use of the Commerce Clause as a basis for civil rights legislation; public places are in fact prohibited from discriminating against blacks
Commerce Clause
Clause stating that Congress can regulate interstate and international commerce.
Clause stating that Congress can regulate interstate and international commerce.
The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power
Grandholm v Heald (2005)
The United States considered whether laws in Michigan and New York that prevented out-of-state wineries from selling wine within the state violated the Dormant Commerce Clause.
Under the Dormant Commerce Clause, states cannot pass laws that prevent or dis
Judicial Review
The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch.
The Founders and Judicial Review
Alexander Hamilton and James Madison (two of the three authors of the influential Federalist Papers) both advocated the concept of judicial review as a necessary part of the checks and balances that characterize our federal government.
Marbury v. Madison (1803)
arguably the most signigicant case inAmerican constitutional law
Established judicial review; "midnight judges;" John Marshall; power of the Supreme Court.
Jurisdiction
The authority of a court to hear and decide a specific action
(n.) an area of authority or control; the right to administer justice
2 components of jurisdiction
1 personal jurisdiction ( in personam, in rem, quasi in rem)
2 subject matter jurisdiction
Personal Jurisdiction (in personam jurisdiction)
The authority of a court to hear and decide a dispute involving the particular parties before it
the power of a court to force a person to appear before it
A court's authority to bind the defendant to its decisions
Personal Jurisdiction is generally
a geographic concept
Subject Matter Jurisdiction
The authority of a court to hear and decide the particular dispute before it
the power of a court to hear a particular type of case
subject matter jurisdiction maybe limited by
1 amount of controversy
2 nature of the controversy
3 the basis for the relief sought
4 in a criminal case, whether the crime alleged is a misdemeanor or felony
Limited vs. General
A court whose jurisdiction is limited by one or more of these factors is considered to have limited jurisdiction; otherwise, a court has general jurisdiction.
-amount in controversy
-nature of the controversy
-basis for relief sought
-is the crime a misde
Original Jurisdiction
The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case. (original jurisdiction over a few types of disputes)
The authority of a court to hear and decide a dispute in the first inst
Minimum Contacts
the defendant must have sufficient connection to the state for the judge to conclude that it is fair for the state to exercise power over the defendant
long arm statute
a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state
A state law that allows the state to exercise jurisdiction over an out-of-state defendant, provided that the prospective d
Appellate Jurisdiction
The authority of a court to review a prior decision in the same case made by another court
Concurrent vs. Exclusive Jurisdiction
exists when two different courts have authority to hear the same case.
exists when only state courts or only federal courts have authority to hear a case.
Personal jurisdiction is generally
a geographic concept
In Personam Jurisdiction
jurisdiction over the person
Courts have jurisdiction over persons or entities residing or doing business within a particular county, district, state, or in some cases, anywhere within the United States
jurisdiction over the parties to a lawsuit
long-arm statute(s)
the court can exercise jurisdiction over out-of-state defendants if they had sufficient minimum contacts to warrant it
dictate under what terms a nonresident person or entity, who would otherwise not be subject to the court's jurisdiction, may nonetheless
in rem jurisdiction
Courts also have personal jurisdiction over disputed property located within the county, district, or state
U.S. court systems disputes are referred to courts with specialized subject matter jurisdiction
specialized subject matter jurisdiction
specialized subject matter jurisdiction
Bankruptcy Courts
Probate Courts
Bankruptcy Courts
Federal courts that hear and decide matters relating to a person's or entity's bankruptcy
Probate Courts
State courts that handle matters relating to the transfer of a person's assets and obligations after her death, as well as, in some jurisdictions, the affairs of minors and of persons lacking legally sufficient mental capacity
Federal Question Jurisdiction
case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.S. and one or more foreign countries
Personal jurisdiction
traditionally a function of geography
Diversity Jurisdiction Requirements
1 the amount in controversy exceeds $75,000
2 the lawsuit is between
a. citizens of different states
b. a foreign country and citizens
of one or more states
c. citizens of a state and citizens
or subjects of a foreign country
challenge the constitutionality of a law
matter must be brought before it by use of the court system
judiciary does not have the power on its own to challenge the constitutionality of a law
Jurisdiction in cyberspace
Internet makes geographic distinctions difficult and potentially meaningless
reasons court hear a case
venue
standing to Sue
standing to sue
The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit.
Justiciable Controversy
that is real and substantial, as opposed to hypothetical or academic conflict.
trial court
the first court to hear a criminal or civil case
General Jurisdiction
court that can hear almost any kind of case
appellate courts review
question of law rather than the facts
not always the case
Limited Jurisdiction
a court's power to hear only empowered to hear certain types of cases or cases in which the amount in controversy is above , below, or between, specified bounds
appellate court
court that generally reviews only findings of law made by lower courts
each state has at least one
which are subject to review by the states suprem court
Applellate Division
Appeals to Court of appeals
4 departments or section
5 justices
Court of Claims
Supreme Court
Family Court
Surrogate Court
State supreme court is also know as
the court of last resort
U.S. Courts of Appeal (Circuit Courts)
These are intermediate federal courts of appeal
The losing party in a federal district court case can appeal the decision to a court of appeals
They have no original jurisdiction, only appellate jurisdiction
The losing party may submit a petition to the U
How many US Courts of Appeal/Circuit Courts
There are 11 circuit courts that handle the states and U.S. territories
There is also a court for Washington D.C. and a Federal Circuit.
How mant division/department of the Appellate Division
4
How mnay judges in the Appellate Divisiion?
5 judges
what vote determines cases to automaticly go to Court of Appeals
4 to 1
3 to 2
Court of Appeals
Highest State Court
How many judges in a Court of Appeals
7 judges
N.Y. STATE SUPREME COURT
Mostly Civil Actions-Trial Court
Each county has at least one Justice. This is a trial court!!!)
Appeals go to the Appellate Division
Court of Claims
Actions where State is being sued
Includes trial of Eminent Domain Proceedings, Appeals to Appellate Division
Village Court, City courts, Justice Town courts
Trial courts
Each city, village and town have these courts with limited monetary jurisdiction.
Handle many vehicle traffic offenses, civil cases, misdemeanor criminal cases.
Each court has "Small Claims Court" terms within its calendar. Matter in controve
Family Court
Trial court-Each county has at least one, hears cases involving custody, visitation, child support, family offense, guardianship, adoption, PINS(person in need of supervision), Neglect & Abuse of children, Juvenile Delinquency Cases, appeal to Appellate d
discretionary review
decide whether or not to consider the merits of a particular case
US Court of Appeals do not have discretionary review
Surrogate Court
Trial court
Hears matters involving estates, probate, intestate, adoption, guardianship, trusts,.
Appeals to Appellate division
U.S. Court of Appeals
A court within the second tier of the three-tiered federal court system, to which decisions of the district courts and federal agencies may be appealed for review.
12 Geographic regions
13 th is the Federal Circuit
cases involving:
patent law
US is a defe
US District Courts
Trial Courts of general jurisdiction
each state has at least 1
Some states have 4
including District of Columbia & other US territories
U.S. Supreme Court
The highest court in the US that has the final power of judicial review
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.
writ of certiorari
An order by a higher court directing a lower court to send up a case for review
at least four justices agree the case merits the court's review
Plaintiff's Complaint/Petition
which sets forth the claims asserted by the party seeking affirmative relief
Defendant Response
Typically this takes the form of an answer, defendant either admits or denies each of the allegations, and under federal rules, any allegations not denied by the defendant will be deemed admitted by the court.
About how many cases do the US Supreme Court hear each year?
100
depositions
is a procedure where witnesses and the parties are questioned under oath in the presence of court stenographers in advance of trial to determine what they are expected to say at the trial
motion to dismiss (demurrer)
A motion used to challenge claimed defects in the plaintiff's complaint
motion for summary judgment
A motion requesting the court to enter a judgment 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.
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.
Voire dire
is the process of selection of jurors that takes place before the trial starts
Jury selection process
N.O.V.
notwithstanding the verdic
motion made by counsel after the trial, where the lawyer is asking the judge to set aside, or amend the decision of the jury
decision was outrgeous, excessive, or just not conforming to the evidence and proof presented
notice of appeal
a formal notice requesting an appeals court to review the case
entire record is thereafter filed with the appellate court and and an appellate brief
post trial motions
attorneys feel the decsion of the jury is unreasonable or for a new trial if some prejudice was discovered
e.g. such as a juror being tampered with
directed verdict
the plaintiff did not prove the bare minimum required so the jury does not need to consider the matter and thus asks the judge to dismiss the case
judges resolve the issues of
law
juries determine the issues of
fact
responding brief
answers the appellant's contentions
Doctrine of Stare Decisis
a policy of courts to stand by a precedent and apply it to all future cases where the facts are substantially the same; to stand by things decided
Pre-Trial Motions
a document by which a party asks the judge to make a decision or take some action before the trial begins
interrogatories
s a series of written questions that must be answered along with the production of documents to support the repsonses given
Discovery Process
is commenced by a party serving a notice of discovery which includes a demand for the production of records pertaining to the action in the possession of the other party
The pretrial procedure by which one party in a civil or criminal case discloses to th
litigation
process of resolving a dispute through the court system
Summons
an order to appear in court
filing a document prepared by a Lawyer
the court can assume that the plaintiff is entitled to the relief requested
About how many case are requested to be seen by the US Supreme Court?
1000
You cannot file a proceeding for probate of a will in
Supreme Court
subject matter jurisdiction is
not waivable
you file your breach of contract action in
Family Court
New York our trial courts of statewide jurisdiction are known as
the Supreme Court.
one in every county
most instances the monetary judgment
does not include the cost of the attorney.
echniques available to collect the judgment
as wage garnishment
property executions
bank account attachments
cost of the litigation process
filing fees
process servers
expert witnesses
the attorney
up to the party awarded the judgment
to collect it and that is not always easy
party may flee
may file bankruptcy
simply have inadequate resources to pay the obligation
Alternate Dispute Resolution
negotiation
mediation
arbitration
Mediation
is a process where a third party meets with the parties and tries to work out a settlement
not binding on the parties unless they sign an agreement setting forth their resolution
cheaper because there are usually no lawyers involved and no filing fees
Arbitration
where the parties agree to allow a private party decide the outcome of their case
charge significantly more than the court
eg court $345
Arbitration $3000
Free Excercise Clause
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