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46 Cards in this Set
- Front
- Back
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Why do we have law/legal system?
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1. Keep peace
2. Influence and enforce standards of conduct 3. Maintain status quo 4. Facilitate orderly change 5. To maximize individual self-assertion 6. Facilitate planning 7. Promote social justice 8. Promote conservation 9. Provide compromise solutions 10. Provide checks against power |
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Sources of Law
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--Most important is the Federal Constitution
--Constitutions of the 50 states --Treaties (ex. NAFTA) --Statutes (Federal & State) --Municipal ordinances (ex. Zoning regulations) --Executive orders (ex. Orders of the President) --Administrative regulations (includes EPA, IRA, OSHA; officials are appointed not elected; can have the same effect as a statute) |
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When a court is petitioned to resolve a dispute between 2 parties, it is the function of
the court to: |
APPLY THE PROPER LAW and determine if plaintiff is entitled to what
they demand |
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4 Approaches for Interpretation by judge
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1) Literal = arrive at a clear meaning by deciphering the common meanings of the words
of the statute...must be used first, if clear meaning isn’t found then move to the other approaches 2) Purposive = what the purpose of law was when introduced 3) Precedent Based = look at past cases to help interpret meaning 4) Policy Based = recognize that political leanings have influence on judges |
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Power of the Court
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1) Interpret legislation
2) Overturn actions taken by President or Congress... |
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Limitations of the Court
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1) Courts can act only where there is actually controversy; must be 2 conflicting
parties 2) Can not involve a moot issue (dead issue) Ex. A man sued a medical school claiming reverse discrimination but by the time the SC reached the case, the man had been accepted to another school and graduated therefore the issue was considered moot 3) All courts other than SC can be overruled; there must be prejudicial error to file an appeal 4) Judges are expected to base their decision on precedent |
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Burden of Proof:
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for criminal case it must beyond reasonable doubt...for civil case
only a majority is needed |
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Federal Court System
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1) US Supreme Ct. = consist of 9 justices, the final arbiter of the Constitution and
Federal law --How cases reach the SC? a. writ of certiorari = claim that Constitutional rights were violated b. an appeal where a Federal Court of Appeals has held a state statute unconstitutional c. an appeal from a state SC decision that a Federal statute is invalid where the state held a state statute despite the losing parties claim it violated the Constitution 2) US Court of Appeals = 13 ct. of appeals....hears appellate cases from U.S. district courts 3) Federal District Courts = includes (1) cases arising under the Constitution, Federal statutes, or Treaties (2) cases where the US is a party (3) controversies between the states (4) controversies between a state and a citizen of another state (5) cases between citizens of different states |
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State Court (NC)
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1) Supreme Court
2) Court of Appeals 3) Superior = cases involving over $10,000; Clerk of Superior Court handles the probate of the state and incompentency hearings (12 member jury, protect relatives from themselves and if you win, a guardian is appointed), also the partition of land (had to find an equal worth value) 4) District = handle cases of up to $10,000 or domestic relation cases 5) Magistrate = handles claim not over $4,000 or recovery of property (person does not have to be an attorney) |
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Documents Filed to Begin Case
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1) Complaint = filed with Clerk of Court by the plaintiff; spells out his factual
allegations, the theory of law the suit is based on, and the relief being sought after (plaintiff) 2) Summons = filed by plaintiff; gives the defendant notice of time, place, and date of trial (plaintiff) Example...Fact setup: man crosses street and is hit by car of a driver who is speeding, swerving, and driving negligently; will file civil case (begins in state superior court)...in this instance negligence is the theory of law 3) Answer = number of different responses could come about ranging from complete denial to absolute aggreeance (defendant) Example = Admits to driving vehicle, deny that he was driving in negligent manner, but could claim that the man on the street was contributory negligent and stepped into the path of car ---- counter-claim, according to old rule, plaintiff could not win if partly at fault, but there is also the doctrine of Last Clear Chance 4) Reply = required because a counter-claim was filed, the plaintiff’s response...responds to the defendants claims, denials, and facts |
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Process of Discovery
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--entitled to list of witnesses for the opposing party
--entitled to examine physical evidence, documents, witnesses, etc --purpose is to prevent trial by ambush, meaning no surprises would be presented in court |
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Steps to Trial/Court Procedings
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1) Parties in civil case decide whether to have a jury
2) Jury selected and sworn in --Clerk of Court uses Driver’s Registration list and Voter Registration --Venire = the 100 individuals selected, then at random 12 are chosen to be questioned by attorneys for approval --Challenge for Cause = each party can have unlimited number of jurors dismissed for cause, such as relation to someone involved, too much knowledge about case --Each party also has a certain number of Preemptory Challenges = no reason is needed for dismissal 3) Lawyers make opening statements 4) Plaintiff presents case (must prove burden of proof) 5) Defendant presents case (does not have to present case) 6) Lawyers make closing arguments 7) Judge instructs jury on how they must interpret law 8) Jury deliberates and makes decision 9) Plaintiff wins, he gets judgement and defendant will have certain time to pay judgement 10) If defendant doesn’t pay, then the Sheriff will execute the judgement by seizing assets of defendant --Judgement Proof = plaintiff could win, but will never collect because person has nothing to give and won’t ever |
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Cost involved in trial
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include the lawyer’s fee which could be either a flat rate per
hour or a contingent fee = percentage of winnings; also there is the cost court fees, plus if the case involves special fields then special or expert witnesses will cost money |
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Class Action Suit
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1) questions of law and fact common to the class as a whole
2) Class is so large that it is impractical to join, joinder aspect 3) Claims of representatives are typical of the class |
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What determines criminal conduct - How is notice to be given
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--conduct is not criminal unless it is specifically prohibited by statute
--Constitution requires that notice be given to citizens that conduct is criminal; two types of notice include (1) Actual = not required to be done by state, but it would include things like directly telling the citizens the law (2) Constructive = publishing statutes and making them available to the public; required of the states |
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Two types of Crime
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1) Felony : historically there are 3 types = murder, rape, and arson
--today many more crimes are considered a felony = if death is a possible consequence of the crime, if it is possible to be imprisoned in a state prison, and if statute says it is a felony 2) Misdemeanor : lesser crimes, all crimes that are not a felony are considered a misdemeanor |
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2 Basic Elements to all Crimes
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1) Criminal Act: either you must have a voluntary action or you fail to act where
there is a duty to act --Involuntary Actions = (1) something done in result to force, (2) not being aware (such as sleepwalking), (3) reflex motion --Duty to Act = (1) contracted to act (lifeguard), (2) statute requires actoin, (3) close to family member (4) if your are responsible for the danger, (5) if you voluntarily abandon a rescue attempt 2) Criminal Intent : all you have to do is be aware of what you are doing to be prosecuted |
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Capacity :
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responsible for what you do, the ability to be responsible in court for your
own actions |
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Incapacities
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1) if you have a minor (minimal age there is no responsibility; child
over minimum age up to 18 can be tried as a juvenile; 13 and over can be tried as an adult for murder, rape, and arson) (2) involuntary intoxication = forced consumption, prescription drug with an unexpected and unusual side effect...must be left in a state of legal insanity or ruined judgement for it to be used as an excuse (3) insanity = disease of the mind, the disease must affect ability to reason, and the defendant lacks the ability to understand the wrongfulness of his or her actions |
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Due Process Rights of the Accused:
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1) Right to a Fair Trial = includes (1) impartial judge and jury, (2) right to a public
trial (3) electronic coverage (historically it couldn’t be done, in today’s world it is allowed in most states at the discretion of the judge; in some cases it is not allowed such as an adoption case, alimony case, testimony of police informants, testimony of a minor, can not show victims family in a sex crime case) 2) Right to a Trial by Jury = right exist if...(1) Federal Court/Statute has a possible punishment exceeding 6 months (2) in a state court (NC) entitled to a jury in all cases that are criminal proceedings ---- trial de novo = an appeal for jury trial if convicted in District Court where there is no jury..... --Jury number may vary, if the number is less than 12 then the verdict must be unaminous but if there is 12 then it does not have to be 3) Right to Appointed Council = if accused of felony or if accused of a misdemeanor where you could be sentenced to jail time, then you are entitled to a lawyer 4) Right to Confront Witnesses Against You = (1) Right to Cross-examine witnesses (2) Right to be physically present when testimony against you is going on (if defendant is disruptive the judge must give 1 warning, after that then the judge can remove the defendant from the court room 5) Privilege Against Self-incrimination = does not apply to physical evidence; if you wave privilege and take the stand, then you must answer all questions; also, the prosecution can’t mention the fact that the defendant chose not to testify 6) Proven Guilty Beyond Reasonable Doubt |
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4th Amendment: Exclusionary Evidence Rule
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--in order for police to conduct search and seizure they must have probable clause
and a search warrant |
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Exceptions to the 4th Amendment
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--Exceptions: (1) consent of the suspect or an adult occupant of the home...when
suspect tells them to stop, then the search must end...roommates can give consent...minors can’t give consent (2) Border search (International) = do not need probable cause to search and there is no search limit, no limit to type of search (3) Automobile = can stop vehicle if they have probable cause...if anything is in plain view it is allowable as an evidence or search (4) Police can conduct a search at the time of an arrest called an Arm’s Length Search, allows police to search in the area surrounding the suspect at time of arrest (5) Catch All Exception = Police can conduct search anytime if they have reasonable belief evidence will be lost if there is a delay (ex. On the water if a boat was seized) |
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Double Jeopardy
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can’t be tried twice for the same crime in the same jurisdiction
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Tort Law - Types
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1. Intentional
2. Torts based on Negligence --In general, interest protected are (1)physical integrity (2)freedom of movement (3) peace of mind (4) privacy (5) Freedom of thought and action (6) acquisition and use of property --ingratitude is not enough to result in tort liability |
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Slander Per Se
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make 1 of 4
defamation statements, (1) statement concerning someone’s honesty or ability in their business (2) statement that someone committed a crime (3) statement that someone has a loathsome disease, a disease that carries social connotations (4) statement concerning the unchastity of a woman |
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Defenses against a charge of Defamation:
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(1) Truth (2) Consent: I was told I was allowed to make that statement. (3) Privilege: something
communicated between husband and wife; letter of recommendation; something said in a legislative or judicial hearing/proceeding |
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Battery
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a harmful (causes harm) or offensive (unwanted, unpermitted; however
it must be more than minimal contact) contact with a person (physical body plus and extension of the body) |
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Assault
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a reasonable apprehension of an immediate battery (consider what a
reasonable person would think)...words are not enough for an assault, words must be coupled with conduct...words can also negate conduct in relation to causing apprehension for an assault |
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False Imprisonment =
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a. confinement was accomplished by a threat of force against the plaintiff, the
plaintiff’s property or family b. threat must be of immediate harm c. moral pressure is not enough d. plaintiff does not have to try to force escape e. plaintiff must be aware of the confinement f. Time period is irrelevant |
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Defamation
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Libel (written or broadcasted) and Slander (oral, informal)
--Must prove (a) defamatory language on part of defendant (a statement concerning honesty, integrity, sanity, or virtue) (b) identify the plaintiff from statement made (c) must have publication of the statement to a 3rd person who could understand it (d) damage to reputation of plaintiff: special damages – out of pocket losses (loss of money); general damages – loss of reputation --for libel defamation special damages do not have to be proven, you are able to sue just on general damages...slander defamation requires the plaintiff to prove special damages...one exception to this rule is slander per se = make 1 of 4 defamatory statements, (1) statement concerning someone’s honesty or ability in their business (2) statement that someone committed a crime (3) statement that someone has a loathsome disease, a disease that carries social connotations (4) statement concerning the unchastity of a woman --For the news media, an extra requirement is made : must prove malice on the part of the media...malice = media published the story knowing it was false or they showed a reckless disregard for its truth. Average person must prove negligence on the part of the media. |
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Malicious Prosecution:
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Elements: (1) criminal proceedings against the plaintiff (the defendant in the criminal
case) (2) the plaintiff was found not guilty (3) absence of probable cause for prosecution (4) the purpose of the prosecution was something other than to bring the person to justice (5) must have damages: general, special, or punitive = morally and ethically so bad the court wants to punish the person who made the false charges |
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Invasion in the Right of Privacy :
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. if you are appropriating the plaintiff’s picture or name for commercial
advantage...must be an advertisement for a product not a media publication b. intruding on the plaintiff’s right to seclusion...example is using a microphone without the permission of the person c. Public disclosure of private facts about the plaintiff...example --- Barney Clark was the 1st person to have an artificial heart implant...signed consent for them to tape operation and show it medical students; however, it was shown on public TV after his death...If he would have been alive he could of sued, but right to sue did not survive to his family d. Attribute to a plaintiff a view the plaintiff does not hold: view must be objectionable to common person |
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Intentional infliction of emotional distress:
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must prove (1) an act which amounts
to extreme or outrageous conduct (2) must have sever emotional distress...examples include using an extreme method to collect a debt or school authorities threatening or bullying students (3) Must have severe emotional distress |
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Trespass to Land:
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(1) must have physical invasion of plaintiff real estate (2) must
have intent to trespass (3) must have damages |
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Trespass to Personal Property:
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(1) some action on part of defendant that
interferes with the use of their personal property (2) have to have intent (3) must have damages |
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Conversion:
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trespass to personal property to the point where the defendant should
have to pay for the item...destroying a whole item not part of item |
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Defenses presented for an Intentional Tort
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1.expressed consent or Implied consent ---Individuals who are mentally incompetent, intoxicated, or are a minor can not
give consent...if consent is induced by fraud, it is not effective Self Defense2) Self Defense = you can use reasonable amount of force to protect yourself from being attacked even possibly including deadly force...depends on size and condition relative to the other person...is there a duty to retreat from dangerous situations? No, not in NC but in some states 3) Defense of Property = you can use a reasonable amount to protect property...can’t use deadly force unless you or your family is being threatened |
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Basic Standard of Care:
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Held to an average ordinary reasonable person...Do we
hold the duty of standard care to entire world or do we owe the duty to a foreseeable plaintiff? |
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Standard of Care for a Prudent Person
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(1) if a person has a physical disability they are held to the standard of care of an
average persons with that disability...example --- if a blind person tries to drive a car, they can’t use their disability as a defense (2) we are all expected as a person with average mental ability...in tort law the insanity plea is not a defense (3) all expected to know things known by the average member of the community (4) an individual with a special skill is held to the standard of care as an average person with that skill, a higher standard than normal (5) a child is held to a standard of care as a child of the same age, intelligence, education, and experience (6) common carriers and innkeepers are held to a higher standard of care because they are licensed by the government to do their work --carriers = employees of airlines, railroads, etc --innkeepers = employee of hotels, motels, etc (7) automobile driver to a non-paying passenger owes the duty to drive in a reasonable manner and warn about known hidden defects (8) in emergency situation you have a duty to act as a reasonable prudent person, an emergency is a situation where there is little or no time |
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--Duty owed to those off the premises 1) Natural Conditions
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no duty at all
Example --- if termites begin in house A and end up in house B, then there is no liabilty...if lightening strikes house A’s tree and damages house B, then there is no liability |
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Artificial Conditions
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no duty with 2 exceptions
create a dangerous artificial conditon on someone else’s property Example: commercial building produces build-up of ice from an improper gutter system on city owned sidewalk If you create a dangerous artificial conditon immediately adjacent to the property --there is a duty to put up a protection such as a fence |
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Duty owed to those on the premises by the land owner
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--For a trespasser, for an Adult = no duty owed to an undiscovered adult trespasser;
for a discovered adult trespasser is owned no duty for a natural condition but there is a duty to warn or protect the trespasser from an artificial condition that can cause serious harm or death...for an Infant = owe a young child as to a natural condition but you have a duty to protect or warn children about conditions dangerous to all people, also for conditions that are dangerous just to children (abandoned refrigerator, car, swimming pool) |
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Liability of a Land Owner to a Licensee
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(ex. social guest on the property for their
own purposes) --Duty Owed : warn them of known hidden artificial conditon, only have to warn them one time |
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Liability of a Land Owner to a Invitee
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(ex. store customer considered to be on
property for the purposes of the land owner) --Duty Owed : (1) warn and eliminate any known hidden artificial (2) inspect and try to discover conditions |
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Good Samaritan Statute
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--Designed to protect anyone with medical training when rendering aid from normal
negligence not gross negligence |
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Defenses to a Claim of Negligence
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1. Contributory Negligence - The plaintiff was also negligent.
2. Last Clear Chance- the defendant had the last opportunity to avoid the accident. 3. Assumption of Risk = voluntary participation in some activity; therefore, assuming risk you will be injured |
