BLAW 341 EXAM 1 Review Guide PDF

Preview

Summary

Review Guide...

Description

Powerpoint 1 ❖ Vocabulary ➢ Liability: the state of being legally responsible (liable) for something such as a debt or obligation

Powerpoint 2 (pgs 5-18) ❖ Vocabulary ➢ Primary Sources of Law: A document that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision. ➢ Secondary Sources of Law: books and articles that summarize and clarify the primary sources of law. ■ Ex: legal encyclopedias, compilations (such as Restatements of the Law, which summarize court decisions on a particular topic), official comments to statutes, treatises, articles in law reviews published by law schools, and articles in other legal journals ➢ Constitutional Law: deals with the fundamental principles by which the government exercises its authority, is the law as expressed in these constitutions ■ A law in violation of the constitution if challenged will be declared unconstitutional and will not be enforced ■ Each state in the union has its own constitution ➢ Statutory Law: the body of law enacted by legislative bodies, such as statutes passed by Congress or state legislatures ■ When a statute is passed it is included in the federal code of laws or the relevant state code of laws ➢ Citation: a reference to a publication in which a legal authority--such as a statute or a court decision can be found ➢ Ordinances: regulations passed by municipal or county governing units to deal with matters not covered by federal or state law. ■ Ex. city or county land use (zoning ordinances), building & safety codes ➢ Uniform Laws: a model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute. ■ Each state has the option of adopting or rejecting a uniform law ■ State legislature can adopt only part of a uniform law or rewrite the sections that are adopted ➢ Uniform Commercial Code (UCC) ■ Facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions ➢ Administrative Law: consists of the rules, orders, and decisions of administrative agencies.

➢ Administrative agency: a federal, state, or local govt. Agency established to perform a specific function ➢ Executive agency: ■ Ex. The Food and Drug Administration is an agency within the US Department of Health and Human Services ■ Subject to authority of the president → appoints and removes officers ➢ Independent Regulatory Agency ■ Ex. Federal Trade Commission, SECO ■ President’s power less pronounced → officers have fixed terms and President cannot remove them w/o just cause ➢ Enabling legislation: specifies the name, composition, purpose, and powers of the agency being created ➢ Adjudicate: to render a judicial decision. The trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency’s regulations ➢ Administrative process: administration of law by administrative agencies ■ Rulemaking, enforcement, adjudication ➢ Legislative Rule: an administrative agency rule that carries the same weight as a congressionally enacted statute ■ Legally binding on all businesses ➢ Interpretive Rules: not legally binding but simply indicate how an agency plans to interpret and enforce its statutory authority. ➢ Case Law: the rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law. ■ Governs all areas not covered by statutory law or administrative law ■ Part of common law ➢ Common law: the body of law developed from custom or judicial decisions in English and US courts, not attributable to a legislature ■ Judges attempted to be consistent and whenever possible based their decisions on the principles suggested by earlier cases. Decided similar cases in a similar way and considered new cases w/ care bc they knew that their decisions would make new law ➢ Precedent: a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts ➢ Stare decisis: a common law doctrine under which judges are obligated to follow the precedents established in prior decisions ■ “To stand on prior cases” ➢ Binding Authority: any source of law that a court must follow when deciding a

➢ ➢ ➢ ➢ ➢ ➢

➢

➢

➢

➢

➢

case Persuasive Authorities: any legal authority or source of law that a court may look to for guidance but need not follow when making its decision Remedy: the relief given to an innocent party to enforce a right or compensate for the violation of a right Plaintiffs: those bringing lawsuits Defendant: one against whom a lawsuit is brought or the accused person in a criminal proceeding Court of remedy: ■ Court of equity: ■ Ex: ask for defendant to be ordered to perform within the terms of a contract ■ Specific Performance: an order to perform what was promised ■ Injunction: directing a party to do or refrain from doing a particular act ■ Rescission: cancellation of contract, returning the parties to the positions that they held prior to the contracts formation Equitable Principles and Maxims: general propositions or principles of law that have to do with fairness (equity) ■ Provide guidance in deciding whether plaintiffs should be granted equitable relief Jurisprudence: the science or philosophy of law ■ Includes learning about different schools of legal thought and discovering how each school’s approach to law can affect judicial decision making Natural Law: the oldest school of legal thought, based on the belief that the legal system should reflect universal, moral, and ethical principles that are inherent in human nature Legal Positivism: a school of legal thought centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy. ■ Positive Law: the written law of a given society at a particular point in time ■ Positivists school states that there is no such thing as natural rights therefore human rights exist solely because of laws ● If a law is morally good or bad is irrelevant ● The law is the law and must be obeyed until it is changed Historical School: looks to the past to determine what the principles of contemporary law should be.

■ Law derives its legitimacy and authority from adhering to the standards that historical development has shown to be workable ➢ Legal Realism: holds that the law is only one factor to be considered when deciding cases and that social and economic circumstances should also be taken into account ■ Believe the law can never be applied w/ total uniformity ■ Judges are human beings w/ unique experiences, personalities, value systems, and intellects therefore different judges will bring different reasoning processes to the same case ➢ Substantive Law: law that defines, describes, regulates and creates legal rights and obligations ➢ Procedural Law: law that establishes the methods of enforcing the rights established by substantive law ➢ Cyberlaw: an informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via internet ➢ Civil Law: spells out the rights and duties that exist between persons and between persons and their government ■ Also specifies the relief available when a person’s rights are violated ➢ Civil Law System: a legal system based on a written code of laws ➢ Criminal Law: the branch of law that defines and punishes wrongful actions committed against the public ■ Criminal defendants are prosecuted by public officials, such as a district attorney, on behalf of the state, not by their victims or private parties ■ Object is to punish the wrongdoer in an attempt to deter others from similar actions ➢ National Law: law that pertains to a specific nation ➢ International Law: the law that governs relations among nations ■ If a national violates an international law enforcement is up to other countries or international organizations, which may or may not choose to act Powerpoint 3 (pg 64-77) ❖ State court: may include several levels/tiers of courts ➢ Trial courts of limited jurisdiction ➢ Trial courts of general jurisdiction ➢ Appellate courts ➢ State’s highest court (state supreme court) ❖ Trial Courts: courts in which trials are held and testimony taken ➢ General jurisdiction trial --> may be called county, district, superior, or circuit

courts ■ Civil disputes and criminal prosecutions ■ Jurisdiction is determined by the size of the county in which the court sits ➢ Limited jurisdiction→ called special inferior trial courts or minor judiciary courts ■ Small Claims Courts: inferior trial courts that hear only civil cases involving claims of less than a certain amount of money, which varies by state ● Conducted informally and lawyers are not required ■ Ex. Municipal court that hears mainly traffic cases ■ Also include domestic relationship or family courts ❖ Appellate or Reviewing Court: ➢ Every state has at least one court of appeals ➢ Generally do not conduct new trials in which evidence is submitted and witnesses are examined ➢ Appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error. ➢ Generally focus on questions of law, not questions of fact ■ Question of fact: deals with what really happened in regard to the dispute being tried ● Ex. whether a party actually burned a flag ■ Question of law: concerns the application or interpretation of the law ● Ex. 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 State Court ➢ Highest appellate court in a state is usually called the supreme court ■ New York and Maryland → court of appeals ➢ Decisions of each state’s highest court are final on all questions of state law ➢ Supreme court can only be overruled by the United States Supreme Court if issues of federal law are involved ❖ The Federal Court System ➢ Three-tiered model consisting of ■ US district courts (trial courts of general jurisdiction and various courts of limited jurisdiction) ■ US Court of Appeals (intermediate court of appeals) ■ US Supreme Court ➢ U.S. District Courts

■ At least one federal district court in every state, 94 today ■ Federal cases generally originate in district courts ➢ U.S. Courts of Appeals ■ 13 U.S. Courts of Appeals ■ The federal court of appeals for 12 of the circuits hear appeals from the federal district courts located within their respective judicial circuits ■ 13th circuit is called the Federal Circuit ● Has national appellate jurisdiction over certain types of cases such as ones involved patent law and cases in which the US govt. Is a defendant ■ Decisions of circuit courts are final in most cases but appeal to the US Supreme Court is possible ➢ U.S. Supreme Court ■ Consists of nine justices ■ Most of its work is in appeals courts ■ Can review any case decided by any of the federal courts of appeals and has appellate authority over some cases decided in the state courts ■ Writ of certiorari: a writ from a higher court asking a lower court for the record of a case ● Used to bring a case before the supreme court ● Rule of Four: the court will not issue a writ unless at least four of the nine justices approve ● Court is not required to issue a writ and most petitions for a writ are denied ■ Court typically grants petitions when cases raise important constitutional questions or when the lower courts are issuing conflicting decisions on a significant issue ❖ Following a State Court Case ➢ Litigation: the process of resolving a dispute through the court system ➢ Pleadings: Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case ■ Complaint: the pleading made by a plaintiff alleging wrongdoing on the part of the defendant. When filed w/ a court, the complaint initiates a lawsuit. The complaint contains statements alleging: ● The facts necessary for the court to take jurisdiction ● A brief summary of the facts necessary to show that the plaintiff is entitled to relief ● A statement of remedy the plaintiff is seeking

■ Service of Process: the delivery of the complaint and summons to a defendant ● Summons: a document informing a defendant that legal action has been commenced against him/her and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint ■ Default Judgement: a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim ■ Answer: a defendant's response to the plaintiff’s complaint ● either admits the statements or allegations set forth in the complaint or denies them and outlines any defenses 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: a plaintiff’s response to a defendant’s answer ■ Affirmative defense: Defendant admit the truth of the plaintiff’s complaint, but raise new facts that may result in a dismissal of action ■ A motion to dismiss: requests the court to dismiss the case for stated reasons: ● Improper delivery of the complaint and summons ● Improper venue ● Plaintiff’s failure to state a claim for which a court could grant relief ➢ Pretrial Motions ■ Motion for judgement 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 w/o proceeding to trial. The motion will only be granted if no facts are in dispute and the sole issue is a question of law. ■ Motion for summary judgement: a motion requesting the court to enter a judgement w/o proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute. ● Evidence could be an affidavits (sworn statements) by parties or witnesses ➢ Discovery ■ A method by which the opposing parties obtain information from each other to prepare for trial

● Includes gaining access to witnesses, documents, records, and other types of evidence ● A court can require the party to submit the materials to the judge in a sealed envelope so that the judge can decide they should be disclosed to the opposing party ■ Deposition: the testimony of a party to a lawsuit or a witness taken under oath before a trial ■ 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 ● Can only be directed to plaintiff or defendant not witnesses ● Parties are obligated to answer the questions even if that means disclosing information from their records and files ■ Requests for other information: ● A written request on the other party for an admission of the truth on matters relating to the trial ● A party can also gain access to documents and other items not in their possession in order to inspect and examine them ● Opposing party can ask the court to order a physical or mental examination ◆ Court will only do so if the need for the info outweighs the right to privacy of the person being examined ■ E-evidence: includes all types of computer-generated or electronically recorded info. ■ Metadata: data that are automatically recorded by electronic devices and provide information about who created a file and when, and who accessed, modified, or transmitted the file on their hard drives. ➢ Pretrial conference: ■ Informal discussion between the judge and the opposing attorneys after discovery has taken place ■ Explore the possibility of a settlement without trial, if this is not possible then it is to identify the matters that are in dispute and to plan the course of the trial ➢ Jury Selection ■ Voir Dire: an important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes and biases to ascertain whether they can be impartial jurors. ● Challenge a prospective juror Peremptorily: ask that an individual

not be sworn in as a juror without providing any reason ● Challenge a prospective juror for cause: provide a reason why an individual should not be sworn in as a juror ➢ At the Trial: ■ Motion for a directed verdict: a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim ■ Award: monetary compensation given to a party at the end of a trial or other proceeding ➢ Posttrial Motions ■ Motion for judgement n.o.v.: a motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury’s verdict against him or her was unreasonable and erroneous ■ Motion for a new trial: a motion asserting that the trial was so fundamentally flawed (bc of error, newly discovered evidence, prejudice, etc.) that a new trial is necessary to prevent a miscarriage of justice ➢ Brief: a written summary or statement prepared by one side in a lawsuit to explain its case to the judge PowerPoint 4 (pgs 55-63 and 78-84) ❖ Judicial Review: the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch. ❖ Jurisdiction: the authority of a court to hear and decide a specific case ➢ Court must have jurisdiction over the person/company against whom the suit is brought or over the property involved in the suit in order to hear the case ➢ Must also have jurisdiction over the subject matter ❖ Jurisdiction over Persons or Property ➢ A court w/ jurisdiction over a particular geographic area can exercise personal jurisdiction over any person or business that resides in that area or property that is located within its boundaries ❖ Long arm statute: a state statute that permits a state to exercise jurisdiction over nonresident defendants ➢ Court must be convinced that the defendant had sufficient/minimum contacts with the state to justify the jurisdiction ■ Defendant must have enough of a connection to the state for the judge to conclude that it is fair for the state to exercise power over the defendant ➢ Courts apply the minimum-contacts test to determine if they can exercise jurisdiction over out of state corporations

■ Usually met if the corp. Advertises or sells its products within the state or places its good in the stream of commerce with the intent that the goods be sold in the state ❖ Jurisdiction over subject matter ➢ A limitation on the types of cases that a court can hear ➢ General (unlimited) jurisdiction and limited jurisdiction courts ■ General ex. State trial court ■ Limited jurisdiction court ex. ● Probate courts: state courts that handle only matters relating to the transfer of a person's assets and obligations after that person’s death, including matters relating to the custody and guardianship of children ■ Limited federal court ex. ● Bankruptcy courts: handle only bankruptcy proceedings, which are governed by federal bankruptcy law ➢ Courts subject matter jurisdiction can be limited by: ■ The subject of the lawsuit ■ The sum in controversy ■ Whether the case involves a felony or a misdemeanor ■ Whether the proceeding is a trial or an appeal ❖ Jurisdiction of federal courts ➢ Federal Question: a question that pertains to the US constitution, an act of congress, or a treaty and provides a basis for federal jurisdiction in a case ➢ Diversity of citizenship: a basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a US citizen and a citizen of a different country. Most common type of diversity jurisdiction requires both of the following: ■ The plaintiff and defendant must be residents of different states ■ The dollar amount in controversy must exceed $75,000 ➢ Concurrent jurisdiction: when both federal and state courts have the power to hear a case ➢ Exclusive jurisdiction: when a case can be tried only in federal courts ...