Law Midterm - copy
Natural Law
Law reflects rights, duties, and prohibitions inherent to human nature
Legal Positivism
Law arises from commands issued by people and dependent on the people who hold these prepositions
Legal Realism
Law reflects the way judges decide specific legal questions which are fact dependent
Function of Law
to maintain stability in the social, political and economic system while simultaneously permitting change by: establishing, protecting, and ensuring
Substantive law
creates, defines and regulates legal rights and duties
Right
the ability of a person with aid from the law to require another person to perform or refrain from performing an act
Duty
legally imposed duty for one person to perform or refrain from performing a certain act
Procedural Law
rules that enforce rights created by substantive law
Public Law
substantive law addresses the government’s rights and powers and its relationship to individuals and groups (constitutional law, criminal law and administrative law)
Private Law
substantive law governing individuals and legal entities (such as corporations) in their relationships with each other
(Tort law, corporate law and contract law)
Civil Law
part of private law and defines duties between parties
(purpose of compensation and deterrence)
(preponderance of the evidence)
Criminal Law
part of public law and established duties and protects against offenses against the community (purpose of punishment, deterrence, rehabilitation and order)
(beyond a reasonable doubt evidence)
Judicial Law
- U.S. is a common law system which involved a body of law based on case law which serves as precedent for determining later controversies
-Principle of stare decisis (stand by decisions) designed to support the evolution of the law in a stable and predictable manner
Constitutional Law
- Law of particular government
- Established governmental structure and allocates power among government branches
- Restricts powers of government and specifies rights and liberties of individuals
Legislative Law
- Statutes passed by state or federal legislatures
- Facilitates more dramatic, sweeping and rapid changes in law to address technology, social and economic change
Administrative Law
- Branch of public governing the procedures and procedures of government entities
- Public health, safety and welfare
Ethics
is the study of what is good or right for human beings
Business ethics
is the study and determination of right and good in business settings
Ethical fundamentalism
Central authority or set of rules guide decision-making
Ethical relativism
actions judged by what individuals subjectively feel is right or wrong
Situational ethics
Actions judged by first putting oneself into that person’s situation
Utilitarianism
“Greatest happiness for the greatest number”
Deontology
Actions judged by motives and means as well as results
Social egalitarians
social theory – provision of equal goods and services irrespective of individual’s contributions to society’s overall wealth
Distributive justice
social theory – equality of opportunity, not of results.
Libertarians
no interference with those who operate fairly in market and stress market outcomes
Free market theory
- Perfectly competitive markets and business managers pursuing profits ensures members of society are served in the most socially beneficial ways
- Regulation of business not only preserves free competition but acknowledges that other socially beneficial goals need to be promoted
Shareholder theory
- Historically, most corporations were “closely held” companies whose stock was held by single controlling shareholder or group closely involved in company affairs
- Public companies with widely dispersed shareholder led to the shareholder primacy
Social contract theory
Society establishes a special status for corporations and, in return, corporations have a duty to contribute to society’s overall well being
Stakeholder theory
- Business represent a set of relationships among groups that have a vested interest in the activities of business
- Business should be focused on creating value for entire set of stakeholders
Litigation and Civil Procedure
- Key function of the law is to resolve disputes and litigation is primary resolution mechanism
- Judicial resolution of civil law disputes governed by rules of civil procedure which are designed for: Substantive fairness , Procedural fairness, and Efficiency
- Cases filed in federal districts court are governed by the FRCP
Civil law
- More likely true than not true = “by a preponderance of the evidence”
- Higher burden than preponderance of the evidence = “clear and convincing evidence”
Criminal law
No plausible reason to believe otherwise
Class action lawsuits
are allowed in federal courts and most state courts
Civil cases
are brought by plaintiffs against defendants
Pleadings phase
designed to provide notice to parties and establish/narrow issues of disputed fact or law
Complaint
Case begins with the filing of this
Summons
Court issues summons which is served on the defendant along with a copy of the complaint
Discovery serves to
- Preserve relevant evidence and focus recollection of witnesses
- Allows parties to understand strengths and weaknesses of each other’s cases
- Raise claims or defenses not apparent at the time of complaint’s filing
- Narrow factual or legal issues in dispute during later stages of litigation or at trial
- Enable parties to see both sides
Discovery includes
- Depositions: sworn testimony take out of courts
- Written interrogatories: sworn answer by the opposing party
- Production: documents and objects in possession of opposing party or by court ordered subpoena of a third party
- Requests for admissions of fact
Summary judgment
after discovery, either party may move for summary judgment
Pre-trial conference
conference between the judge and the attorneys to assess the status of the case
Answer
- Admissions
- Denials
- Affirmative defenses
- Counterclaims
- Pretrail motions
Trial (how its set up)
- Opening statements
- Direct/cross examination (of plaintiff's witnesses and introduction of evidence)
- Direct and cross examination (of defendants witnesses and introduction of evidence)
- Closing statements
Jury’s role
- Judge limits what jury can hear during a trial
- Judge decided issues of law; jury decides issues of fact
Post-Trial
- Losing party may make a Motion for a new trial
- Judge may enter a Judgment notwithstanding the verdict
- De novo review of errors of law and errors of fact reviewed under a clearly erroneous standard
Arbitration
neutral third party renders binding decision
Mediation
3rd party selected by parties attempts to help them resolve a disagreement
Negotiation
consensual process with no third party involved
Standard: clear & convincing
Evidence is so strong that it leads you to a firm belief or conclusion without hesitating
Jury must establish
- Conduct was intended to cause emotional distress
- Was extreme and dangerous
- Was the cause of person’s emotional distress
- Emotional distress was extreme and disabling
Federal Court system (courts of limited subject matter jurisdiction) ( have concurrent jurisdiction)
- Article III of U.S. Constitutional vest judicial power in the Supreme Court and lower and special courts established by Congress
- Federal judges appointed for life by U.S. President and confirmed by the U.S. senate
State Court system
- Each state and district of columbia have state court systems
- In most states judges are elected and the structure of each state court system varies
U.S. District courts
general court in the federal courts
Special courts
congress has established a number oc courts pursuant to article III to address specific areas of law or types of cases
U.S. Circuit Court of Appeals
reviews appeals from district court cases (11 circuits plus DC Circuit and Federal Circuit)
Jurisdiction
power or authority of court to hear and decide a controversy of a particular kind (2 types)
- Subject matter jurisdiction: authority to hear the subject matter of the case
- Personal jurisdiction: authority to hear a case over the parties to a lawsuit
Federal questions(federa/state court can hear the matter)
(1) congress has not granted federal courts exclusive jurisdiction
(2) federal question arising under the constitution, statutes, or treaties of the U.S.
Diversity cases
civil suit in which there is diversity of citizenship and the amount in controversy exceeds $75k.
Exclusive state jurisdiction
- Case involving diversity of citizenship in which the amount in controversy is $75k or less
- Cases which federal power does not reach including property, contracts, commercial transaction and most crimes
Personal jurisdiction
power of a court to bind the parties involved in the dispute
Proper service
on a party within the state in which the court is located (deliver summons)
Party consents
to personal jurisdiction
Long arm statutes
courts allowed to have jurisdiction over non-resident defendants whose “minimum contacts” with a state are such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice”
Bill of Rights
Ten amendments restrict federal power and establishes individual rights
Separation of powers
Allocation of powers among executive, legislative, and judicial branches of government
Federalism
Constitutionally enumerated powers are specifically granted to federal governments while powers not specifically granted are reserved to states and the people.
Federal supremacy and preemption
state law may not conflict with U.S. Constitution or valid federal law (Supremacy clause)
Judicial review
Examination of governmental actions to determine whether they conform to the U.S. Constitution
Government action
Constitutional protections only apply to government action, 13th amendment applies to private individuals and statutes may extend protections to private activity
Articles I-III
establishes legislative, executive and judicial branches
Article IV
defines relationship between federal and state government and power
Article V
amendment process
Article VI
supremacy clause
Article VII
ratification process
Rational relationship test
court upholds legislation if legitimate government objective and rationally related to achieving objective
(1)Potential differential treatment based on non-suspect classifications
(2)non-protected speech
(3) no impact on fundamental rights)
Intermediate scrutiny test
regulation must have a substantial relationship to an important government objective
(1)potential differential treatment based on gender or legitimacy
(2)commercial speech
Strict scrutiny test
regulation necessary to a compelling government interest, least restrictive means and court is making an independent determination.
(1)Fully protected speech
(2)suspect classifications(race/national origin)
(3)fundamental rights
Commerce Clause (congress has authority to…)
- Protect the channels of interstate commerce
- Protect the instrumentalities of interstate commerce
- Regulate activities substantially affecting interstate commerce
Dormant commerce clause
Beyond interpreting clause as an affirmative grant of power to congress, supreme court has also viewed it as a constraint upon state regulation of interstate commerce
--> Prohibits states from passing laws that discriminate against, or excessively burden, interstate commerce.
1st Amendment
“congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”
Protected speech
- Political speech is at more for the 1st amendment also extended to non-verbal expression and hate speech
- Supreme Court had also held that corporations are entitled to 1st amendment protections
Speech subject to lesser 1st amendment protection
- Commercial speech - expression related to the economic interests of the speaker
- Defamation - civil wrong or tort resulting from damage to a person's reputation through communication of a false statement
Non-protected speech
Obscenity, criminal speech, false and deceptive advertising, fighting words, incitement
Protected speech – strict scrutiny standard
- Government may not impose a prior restraint on the speech
- Government regulation of speech should be content neutral unless
Regulation is justified by a compelling government interest and
Regulation is narrowly drawn to serve asserted government interest
- Government must identify and actual problem in need of solving and the curtailment of speech must be truly necessary to the solution
Time,place, and manner restrictions are permissible if:
- Content neutral
- Compelling interest
- Least restrictive means of limiting speech
- Not overboard or vague
- Ample alternative channels for communicating speakers message
Commercial speech
is subject to 1st amendment protection but exempt from prohibition on prior restraints
(1)Communication must consent lawful activity and not be misleading
(2)Substantial government interest
(3)Regulation directly advances asserted government interest
(4)Regulation is not more extensive than is necessary
Defamation
Statement about a public official is constitutionally protected unless official can prove statement was made with knowledge that it was false or with reckless disregard of whether rit was false or not
Originalism
- The originals at least knows what he is looking for; the original meaning of the text. Often – indeed, I dare say usually– that is easy to discern and simple to apply.
-Constitutional amendments and political processes can address change, not judicial activism
Non-originalism/living constitution
- The Constitution is a living document that includes open-ended clauses and reflects fundamental principles and values. Society changes and inferring historical intent is not so simple
- Supreme Court should address “constitutional moments” to support fundamental values when political process cannot function to address
Representation reinforcement
- Constitutional theory should focus on maintaining a well-functioning democratic process and guarding against system biases in political processes
- Ensure participating in decision-making by minorities whose interest differ from majorities
14th Amendment
“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 jurisdiction the equal protection of the laws…”
Equal protection clause
Equal protection clause requires equal protection under law
- Government is allowed to treat people differently through legislation but must treat similarly situated individuals the same
Rational basis test
classification does not involve a suspect classification and is reasonably related to a legitimate government objective
(strong presumption of constitutionality – clear and convincing evidence of no rational basis)
Intermediate test
classification based on gender or legitimacy, must have a substantial relationship to an important government objective
(no presumption of constitutionality)
Strict scrutiny test
suspect classification or fundamental right, independent judicial determination if classification is necessary to promote compelling government objective
Substantive and procedural
14th and 5th amendments prohibiting depriving a person of life, liberty, or property without due process of law
Procedural due process
- Government is required to provide an individual with a fair procedure if the person faces deprivation of life, liberty or property
- Fair and impartial procedure to resolve factual and legal basis for a government action
Substantive due process
- Certain rights are so fundamental that the government cannot deprive people of them no matter what “process” is used
- Legislation that impacts economic interest is constitutional provided the legislation satisfies rational basis test
- If fundamental rights are impacted, legislation is subject to strict scrutiny tests.
Tort
Definition: an act (or omission) that gives rise to an injury or harm
Mechanism: civil lawsuit
Remedy: almost always money damages
Categories of Torts
Intentional torts → negligence → strict liability
Intentional torts
A person intends to do the harm in question
Unintentional torts
negligence and strict liability
Elements of Negligence
- Defendant owes a duty of care to the plaintiff
- Defendant breaches that duty of care
- Defendant caused a harm to the plaintiff
- Plaintiff suffers a harm that is protected against negligent conduct
Duty of care
- A person usually owers another person's duty of care baked on a relationship
- No general duty to assist others
- Duty of care is the degree of carefulness that a reasonable person would exercise in a given situation
“Reasonable person”
is an objective and external standard and is the fictitious person who is always careful and prudent and never negligent
Negligence per se
- Reasonably person standard may be established by status or administrative regulation
- Majority of courts hold that an unexcused violation constitutes negligence per se
- Compliance with regulation does not prevent a finding of negligence if a reasonable person would have undertaken additional precautions
- Establishes breach of duty of care but plaintiff must prove other elements of tort claims(causation and harm)
Duty to Act
- Although general duty to exercise reasonable care for the safety of others person and property, no duty to act as Good Samaritan
- Exception to the general rule on no duty to act:
Person or property is at risk due to another person's conduct
Person voluntarily comes to another person assistance
Person interferes with others assistant attempts
Special relationship imposes affirmative duty
- Special relationships:
Common carrier passengers
Innkeeper guests
Employee employer
School students
Landlord tenant
Business open to the public/customers
Custodian (parent-child)
State and federal statutes/regulations
But for rule
An act or omission to act is a cause of an event if the event would not have occurred but for the act or omission
Substantial factor test
Negligence conduct is the legal cause of harm if conduct is a substantial factor in bringing about the harm
Foreseeability
No liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs
Superseding cause
- Interviewing event or act that occurs after negligent conduct that relieves defendant of liability
- Normal consequence of situation cause by negligence is not superseding event
Harm
- Plaintiff must prove that defendants negligent conduct caused harm to a protected interest
- Courts were traditionally reluctant to allow recovery for negligent infliction emotional damage
- Most courts do not award damages for mental distress suffered by those who have witnessed injury to another caused by negligence
Contributory negligence
- The plaintiff's own negligence - even if only a small contribution to the occurrence of the tort-blocks the plaintiff from recovering damages
- In few states that have not adopted comparative negligence, this is an absolute defense
Comparative negligence
- Damages are apportioned between plaintiff and defendant based on their relative negligence
-Modifieid v pure comparative
Assumption of risks
- No damages if plaintiff voluntarily knowingly assumed the risk
- Implied assumption of risk is in disfavor as a defense but can be considered as part of contributory negligence for purpose of recovery