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85 Cards in this Set
- Front
- Back
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What is Due Process of Law?
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Constitutional Limitation requiring that a person not be deprived of life, liberty, or property without a fair and just hearing. Must have reasonable time, date, and location to respond to ...unless its and emergency. Applies to 5th and 14th Amendment.
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What is the 14th Amendment?
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Deals with state gov't (e.g.) driver's license. Must follow due process of law
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What is the 5th Amendment?
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Deals with federal gov't. Must follow due process of law.
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Crimes?
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Public wrongs. It disrupts the peace and tranquility of the community.
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Civil wrong?
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Private wrong. It is person against person or person against property when no criminal statutues are involved.
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Criminal law?
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When a law has been broken or committed and is considered criminal crimes, are punishable with fines and jail time.
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Torts vs. crimes
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All crimes are torts (civil wrongs), but not all torts are crimes.
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3 Types of Pleas?
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Guilty
Not Guilty No contest (Nolo Contendere) |
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Nolo contendere
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Latin for "I do not wish to contend," that is, a party pleads no contest. It is often shortened to nolo -means no context, means guilty in court room but not pleading guilty to any civil law suits that may arise.
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Who prosecutes crimes?
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the government.
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Who figures out the charges?
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The State attorney, prosecutor.
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White collar crimes
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A wide range of nonviolent crimes, often involving cheating or dishonesty in commercial matters. Ex. fraud, embezzlement, and insider trading. Any criminal activity for financial advantage that occurs in the course of business.
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2 courts?
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Court of Law-comes from England.
court of Equity- Is found in the same courtroom, same judge of court of law. Exist through 2 things: Give an order that stops someone from doing something illegal. (legally not allowed to do). Order somone to do something they are legally required to do, that they are not doing. |
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ADR
(Alternate Dispute Resolution) |
a process by which the parties to a dispute resolve it through a mechanism other than litigation in court.
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ADR includes
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Arbitration
Mediation |
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Arbritration
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Arbitration- means of settling disputes between parties when they submit the matter to a neutral third party of their choosing, who resolves the dispute by issuing a hind award. A popular alernative to the court system for resolving disputes due at lower cost and greater speed.
*84% effective *Gives verdict 3 arbitrators, conduct a mini trial, both sides present evidence, they give a verdict, who wins, who loses. |
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Mediation
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a form of ADR in which a third party is hired by parties to a dispute with the intent to persuade them to settle their dispute.
*62% effective *Tries to give solutions *A neutral, detached 3rd party hears the issues in the case between 2 parties, tries to guide the people to settle before going to trial. |
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What is Law?
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A set of rules that govern the conduct of members of society in their actions and inactions. In which there is consequences if you break the set of tules (law).
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3 points of Law
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a. Law refers to a code of conduct that defines the behavioral boundaries for business activity.
b. Law, in its generic sense, is a body of rules of action or conduct prescribed by (the) controlling authority and having binding legal force. c. That which must be obeyed and followed by (members of a society) subject ot sanctions or legal consequences is a law. |
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Lawyer's Discovery Devices
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To gather evidence for trial by sending interrogatories:
Written questions the other party has to answer under oath within 30 days of receiving them. |
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Deposition
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is a sworn testimony, written or oral, of a person taken outside the court (such as a court reporter)
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Due process of law
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the government has to give you notice of why they are coming to see you, along with a date, time and location of where you need to be to answer questions regarding the matter
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Federal level
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applies to the 5th amendment
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State level
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Applies to the 14th amendment
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Bill of Rights:
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Is the first 10 amendments
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Amendment 1
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Freedom of religion, speech, press, assembly, and petition 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 pressl or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
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Amendment 4
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Freedom from unreasonabl search and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Probable cause must exist for an officer to stop and arrest you. Reasonable suspicion is a relaxed term of probable cause and can be what gives an officer probable cause. |
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Amendment 5
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Right to due process of law, freedom from self-incrimination, double jeopardy. No person shall be held to anser for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in militia, when in actual service time of war or public danger; nor shall any person be subject for the same offence twice put, put in jeopardy of life or limb; mor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. Nor shall private property be taken for public use, without just compensation. Privilege to refuse to answer questions due to self-incrimintation. If you use the 5th amendment before a grand jury, and the government says you leave or get immunity-- you can't get prosecuted by taking the 5th amendment.
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Amendment 6
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Rights of accused persons.e.g. right to a speedy and public trial. In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusationl to be confronted with the witness against him. To have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
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Amendment 8
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Freedom from excessive bail, cruel and unusual punishments. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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Amendment 10
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Powers reserved to the states. The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Whatever the Federal Gov't hasn't done, the State Gov't has a right to do.
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Amendment 14
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All persons born or naturalized in the U.S., and subject to the jurisdiction therof, are citizens of the U.S. and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. 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
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Articles I, II, III.
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I = Legislative
II = Executive III = Judicial |
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3 Sources of Law
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Case
Common Statutory |
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case
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law developed by American and English courts by decisions in cases. Unlike statutes, it is not passed by a legislative body and is not a specific set of rules; rather, it must be interpreted from the man decisions that have been written over time.
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common
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law common to the people
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statutory
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laws enacted by a legislative body.
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respondent superior
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Doctrine of vicarious liability under which an employer is held liable for the wrongful acts of his employees committed within the scope of their employment.
principal (boss) is liable for the acts of the agent committed in the scope and course of employment, that: The principal "knew" The principal "should have known" The principal "could have known" |
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Res Ispa Loquitar
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(the thing that speaks for itself) When you are in the exclusive control of an instrumentality that causes injury and such injury doesn't happen without negligence, it is (reputably) presumed you were liable. Given the facts presented, it is clear that the defendant's actions were negligent and were proximate cause of the injury incurred.
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Certiorari
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a petition for a court to hear the case "Petition for the writ of certiorari is used if you want to go to U.S. Supreme Court. If the court grants it, they receive a writ of certiorari. If the court denies it, they receive a letter of denial.
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Substantive Law
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defines and establishes legal rights
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Is the "body of law"
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law that defines the rights and duties of persons to each other, as opposed to procedural law, which is law that defines the manner in which rights and duties may be enforced
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procedural law
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tells us what to do with someone who commits a crime. Without procedural law, everyone could commit a crime and be arrested, but just sit in jail for a lifetime because there is no procedure as to what to do with the criminal who breaks a law.
the rules of the court system that deal with the manner in which lawsuits are initiated and go forward. Court systems generally have rules regarding pleadings, process, evidence, and practice. |
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in personam
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if you win the case, you have jurisdiction of collection. The power the court has over the persons involved in the action.
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In rem
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could take property to replace debt whether propert owner is present or not. An action take by a court against the property of the defendant.
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exclusive jurisdiction
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federal courts are the only courts who can hear copyright, trademark, and bankruptcy cases. The power of a court over a particular subject matter as provided by statute to the exlusion of other courts.
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Jurisdiction
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when a court has jurisdiction, a court can enter an order into ruling that is binding to all parties involved. The right of a court or other body to hear a case and render a judgment
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Long-arm satutes
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can bring defendants from other states into the state where they owed money or caused damages.
A state statute permitting courts to obtain personal jurisdiction over nonresidents as long as the requirements of the statute are met |
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Administrative agencies
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administrative law- created under the constitution, by Congress. Are experts in their field, created under Congress. They make rulesin which you cannot be incarcerated for breaking. A governmental bureau established by Congress (or President) to execute certain functions of Congress. Agencies transact gov't business and may write and enforce regulations under the authority of Congress or the president.
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Probable cause
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reasonable ground ot believe the existence of facts warranting the undertaking of certain actions, such as the arrest of search of a person.
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reasonable suspicion
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to find a person guilty of a crime, the trial court must fine that evidence presented showed beyond a reasonable doubt that the person committed the crime. As long as an officer has reasonable suspicion or senses of someone's conduct- can be approached, must tell name and address
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Private law
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is between members of the society.
A classification of law, generally denoting laws that affect relationships between people. |
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Public law
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Is between businesses, individuals, the gov't and members of the society. A classification of law, generally denoting laws that affec relationships between people and their govts.
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Obscene
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it does not exist anywhere in a statute or the constitution. Some statutes will say things are obscene, but it is determined in every community in America who is hearing a case that alleges obscenity as a curt
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prurient interest
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when something lines up in a court room and at that point, those jurors can determine that which they are viewing is obscene.
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Felony
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serious crimes, punishable by 1 or more years in prison, fine of $1000 or more, plus lose rights cannot vote and connot own firearm. Serious crimes such as rape,murder, or robbery-that may be punishable by imprisonment in excess of one year or death.
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misdemeanor
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Up to 1 year in prison, up to $1,000 fines
A lesser crime that is neither a felony or treason, punishable by a fine and/or imprisonment in other than sate or federal penitentiaries. |
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mens rea
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mental elements case, thought process but no action taken, incomplete crimes- no actus reus. Lack something- the physical act
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Actus reus
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In Latin "guilty act" the wrongful deed that constitutes the physical component of a crime; usually must be joined with mens rea to establish criminal liability.
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doctrine of fusion
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the state has to prove mens rea and actus reus otherwise the defendant cannot be found guilty. They have to prove mental and physical act to be guilty. WIthout it there can be no conviction.
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Ichoate crimes
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Solicitation
contempt conspiracy |
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Mrs. M. Lamb
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murder
rape sodomy manslaughter larceny arson mayhem burglary |
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Treaty
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Source of international law
Contract between President of U.S., when approved by Congress, with a leader from another country. Has equal dignity to the U.S. Constitution. |
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3 Types of rules for Administrative agencies
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Substantive or Legislative
Interpretative Procedural |
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substantive or legislative
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administrative rulings based on satutory authority granted by an agency by Congress; the rules have the same legal force as statutes passed by Congress.
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Interpretative
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statements issues by administrative agencies that explain how the agency understands its statutory authority to operate; these may be advisory or binding
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Procedural
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the rules of the court system that deal with the manner in which lawsuits are initiated and go forward. Court systems generally have rules regarding pleadings, process, evidence, and practice.
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Doctrine of Separation of Power
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It is to prevent a government branch from having too much power. Gov'ts at the state and federal level in the US are divided into the legislative, executive, and judicial branches, which each have certain duties and powers. This division of authority was designed to restrain the power of any one branch.
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3 Branches of Government
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legislative, executive, judicial.
1 branch of gov't cannot invade another branch of gov't |
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Delegation of Doctrine
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the constitutional right of Congress to authorize governmental agencies to perform certain legal duties.
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Doctrine of Supremacy
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Federal law and U.S. Constitution is supreme law of the land What the U.S. Supreme Court says and decides is FINAL
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Enabling Statute
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legislagive enactment grantin power to an administrative agency.
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plea bargaining
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to criminal law, what ADR is to civil law
94% criminal cases are resolved with plea bargains. A negotiated agreement between a prosecutor and a criminal defendant for the defendant to plead guilty to a lesser offense or only to one of multiple charges in exchange for concessions such as a lighter sentence or a dismissal of the other charges. |
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Article I, Section 8
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lets you expand your business to other states. Other states cannot deny you access to the state to conduct business as long as the business is legal.
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Stare Decisis
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Cases that have been decided in the past, avoid judges biases and form consistencies. The use of precedent in deciding present cases forms a doctrine, meaning to "stand on decided cases."
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Precedent
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stand on precedent which is a previous cases. A decision in a case that is used to guide decisions in later cases with similar fact situations.
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Statute of Frauds
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Dr. Lako Video:
Any transfer of interesting realty from one person to another, (people,corp,gov't) has to be in writing (more enforceable). If you don't adhere to this statute, statutory requirements that certain types of contract be in writing to be enforceable. formal law: common law of England statutes not from case law. Relates to how and what type of documents need to be executed in a formal manner. Contract law- Certain period of statutes and limitations that apply to them and statute of limitations within formal law. |
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Statute of Limitations
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A period of time in which you have to do one or two things:
1. File and serve a lawsuit upon the person that damaged you (defendant). or 2. Settle the case 3. If you don't within set timeframe of your claim will be forever barred. |
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Example statute limitation
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personal injury accident: In florida You have 4 years to bring suit or settle. Georgia only has 2 years.
Every state has different periods. Applies to every kind of case, and every legal action that exists, suing gov't, corp. |
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Formal contract law importance
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If statute limitation w/i 4 years normal execution you can gain 60 years of protection. Formal --England
Formally means under seal, before they used to burn wax ribbons, seal symbol court, lawyer, etc. Now signature end of line (seals it or L.S.) This tells reader document is executed in formal manner. |
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executing a deed
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If a contract can't be performed in one year, then it has to be in writing. (LAW)
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Prenuptial agreement
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entering in Prenup contract to marry has to be put in writing.
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Merchants
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Between merchants and sell of goods a contract entered >500 must be in writing. UCC article 2 amendment <500 writing not necessary.
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exitor
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promise to pay a debt of estate out of you personal act it must be in writing. Can't wait for property to sell, so pay out of pocket but must be in writing.
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5 Things Statutes of Fraud
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Formal
Formal Formal Formal Formal |
