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85 Cards in this Set
- Front
- Back
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Constitutions
U.S. Vs. State |
*Exist at state and federal levels.
*Structures the relationship between federal and state govt's *U.S. Constitution - Black Lettered Law Federal - Most Authority *Separation of Powers *Checks and Balances |
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2 Functions of Constitutions
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1) Set up structure of govt for the political unit they control (state/federal) which involves creating the branches and sub divisions of the govt stating the powers given and denied to each - This is called the Separation of Powers
2) to prevent other units of govt from taking certain actions or passing certain laws. They do this by prohibiting government action that restricts certain individual rights for example the Bill of Rights. |
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Separation of Powers
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Through the SOP the U.S. constitution:
*Establishes the congress and gives it the power to legislate or make laws in certain areas *Provides a Chief Exec. Officer (President) whose function is to execute or enforce laws as well as sets up the federal judiciary to interpret the laws. |
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Federal Supremacy
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Federal Law trumps State law at any level
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Federal Vs. State Laws
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Federal Makes up Black Letter Law - has priority
1) U.S. Constitution - most authority 2) Federal Statutes 3) Administrative Regulations & Decisions 4) Federal Supremacy State 1) State Constitutions 2) State Statutes 3) Administrative Regulations & Decisions 4) Common Law (Case Law) |
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Statutes
Federal vs. State |
*Laws created by elected representatives in congress or state legislature, often difficult to interpret.
*Typically statutes command or prohibit something or declare policy. *Congress = Power *Federal = Black Lettered Law *Sometimes start as Uniform Acts - model statutes made by private bodies of lawyers/scholars. Their aim is to produce state by state uniformity on the subjects they address |
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Common Law
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*Known as judge made law or case law
*Laws applied by judges as they decide cases not governed by statutes or other types of law. *only exists at the State level but Federal courts are sometimes involved in applying it |
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Precedents
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*Used in Common Law legal systems
*Apply the same rule of law from a past case to a present case *ONLY IF there is significantly similar facts and legal issues *Similarities > Differences |
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Distinguish a Prior Case
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*Do NOT apply rule of law to this case if it has different faces and legal issues
*Differences > Similarities |
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Exception to Precedent
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*Significantly similar but still not following precedent just this time...
*Precedent still stays for future similar cases |
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Overrule Precedent
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*If the case is significantly similar but a new rule of law is needed
*New law rule can be applied to future cases as precedent *Replaces past precedent |
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Civil Law
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*Preponderance of Evidence (51%)
*Deals with disputes between individuals and/or organizations *Sue - One private party sues another *outcome - Civil Remedies (money, damages, or equitable relief) |
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Administrative Regulations & Decisions
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*Administrative agencies obtain ability to make law through a grant of power from legislature
*2 types of laws made by administrative agencies: 1)Administrative Regulations *Appear in a precise form in one authoritative source. Similar to statutes but differs because its not an elected body enacting regulations 2)Agency Decisions *Decisions are legally binding but appeals are sometimes allowed |
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Stare Decisis
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*"To stand by things decided"
*99% *Like cases are decided alike let the decision stand |
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Case Law Reasoning
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Courts engage when they make and apply common law rules
*Case law Reasoning as a Judge 1) Apply Precedent - Sim > Diff 2) Distinguish Prior Case - Diff > Sim 3)Create Exception - limited to situation 4)Overrule |
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Criminal Law
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*Law where the government prosecutes someone for committing a crime
*Outcome - can result in criminal penalties (fines, tickets, or imprisonment) |
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Legal Reasoning
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*Legal rule is major Premise
*Facts are minor premise *result is a product of combining the two *2 main types of legal reasoning 1) Case Law Reasoning 2) Statutory Interpretation |
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Statutory Interpretation(s)
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Interpreting the Laws in order to apply them
*Plain Meaning and Legislative Intent - Specific Words *Legislative Purpose, General Public Purpose, and Prior Interpretations - Overall Meaning |
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Plain Meaning
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*Look at the common, accepted meaning of the words used in the statute, if the words are clear, common and accepted then courts use the plain meaning rule
*How it is defined in the dictionary compared to how it is used in context |
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Legislative History - Intent and Purpose
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*Look at the purpose and objectives of the people who enacted the law as well as the records of the effort to enact the law, that indicates the intent of the people who enacted it
*What did the Leg. mean when they used the context/statute *The overall meaning/goals in passing the statute |
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General Public Purpose
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*Look at widely held notions of public policy
*Broad societal goals |
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Prior Interpretations
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*Look at how courts have interpreted the language of the law in prior cases
*Main reason for following these interpretations is to promote stability and certainty by preventing each court from adopting its own interpretation |
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Professionalism/Legal Training
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*Judicial Code of conduct - Judge gets sworn in, it's the judges respect for the law
*Subject to criticism of peers and others in legal community |
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Appellate Review
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*When you appeal you are saying that the judge may have made some mistake/errors. Used to make sure the judge didn't handle the case wrong
*It's subject to review by a higher court if lower court/judge did something wrong then the judge at the higher court can review |
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Real Case or Controversy
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No "If's" - must be a real case not a hypothetical situation, an actual occurrence
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Case must be Ripe and not Moot
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*Must be sufficiently developed (ripe) into a real controversy
*Still matters (not moot) *Ex. Sue IU based on discrimination b/c denied by Kelley... |
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Standing to Sue
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Plaintiff must have a stake in the outcome of the lawsuit meaning only those effected by the case can make it a case / sue someone for something
*Ex. Same sex marriage vs. Opposite sex marriage |
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Courts of Limited Jurisdiction
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*Small claims courts that deal with smaller criminal and civil cases involving small amounts of money
*Handles large number of cases |
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Trial Courts
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*Similar to Courts of Limited Jurisdiction but different in 2 ways:
1) not governed by subj-matter restrictions or the limits on criminal and civil penatlites 2) They keep a detailed records of all hearings trials and other proceedings *Parties always represented by an attorney/lawyer |
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Appellate Court
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*State appeals courts generally only decide legal questions
*After Trial court if something goes wrong or decisions aren't liked by either party they can appeal to this court *Some states only have one Appellate court called the Supreme court *After State Supreme Court sometimes goes to U.S Supreme Court - Rarely though |
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Jurisdiction and Venue
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When a plaintiff Sues a defendant in a civil case the court that is chosen (not by the plaintiff) must have jurisdiction over the case
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Jurisdiction
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*ONLY in Civil Law (accidents, contracts, torts)
*A courts power to hear a case and to issue a decision binding on the parties |
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State Court Jurisdiction
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State courts must have BOTH Subject-Matter Jurisdiction AND Territorial Jurisdiction which is In Personam Jurisdiction OR
In Rem Jurisdiction |
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Subject-Matter Jurisdiction
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*What type of case it is
*A courts power ton decide the type of dispute involved in the case *Exs. criminal courts cannot hear civil matters, and 500,000 dollars claims cannot be pursued in a small claims court *Courts of limited jurisdiction (small claims), Specialty Courts (criminal, juvenile, domestic), appellate and trial courts |
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Territorial Jurisdiction
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Either / or
In Personam Jurisdiction OR In Rem Jurisdiction |
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In Personam Jurisdiction
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*Over the Person - based on the residence, location, or activities of the defendant
*Over the defendants citizenship or residency (even if situated out of the state) *Over defendants activities within state (even if non resident) |
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In Rem Jurisdiction
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*Over the "Thing"
*Permanent of Semi *Over real or personal property that is BOTH 1) Located within the state AND 2) Subject of the lawsuit *Empowers state to determine rights in property |
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Federal Court Jurisdiction
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Either / or
Diversity Jurisdiction OR Federal Question Jurisdiction |
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Diversity Jurisdiction
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*Between citizens of different states
AND *The amount in controversy is > $75K |
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Federal Question Jurisdiction
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An issue arising under U.S. law is a basic part of the case (Constitution, treaties, federal statutes)
*Doesn't Always have to be in federal court can be in state court but usually in federal court - easier way to get into a Fed court |
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U.S. Supreme Court Jurisdictions:
Certiorari Jurisdiction AND Original Jurisdiction - (Exclusive & Concurrent Jurisdiction) |
1)Certiorari Jurisdiction
*Appeals from federal courts of appeals and highest state courts. The court has discretion over whether or not to hear appeal 2) Original Jurisdiction - Acts as trial court (Rare) *Exclusive Jurisdiction - controversies between 2 states) *Concurrent Jurisdiction - controversies between state and U.S., State and non-citizen, and cases involving foreign diplomats |
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Civil Procedure
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*Legal rules establishing how a civil lawsuit proceeds from beginning to end.
*Both sides try to prove that their story is true over the other side *Preponderance of Evidence - 51% is needed to prove the element beyond a reasonable doubt 1. Service of Summons 2. The Pleadings 3. Motion to Dismiss 4. Discovery - Summary Judgment 5. The Pretrial Conference 6. The Trial 7. Possible Directed Verdict 8. Possible Judgment notwithstanding the Verdict 9. Possible motion for a new trial 10. Possible Appeal |
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Service of Summons
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*Notifies the defendant that he/she is being sued
*Contains the plaintiffs name and when they must appear in court *Usually served by a public official and it must be hand delivered or dropped off at the defendants home or place of work |
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The Pleadings
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*The documents the parties file with the court when they first state their claims
*P: Complaint (claim, remedy) D: Answer (deny or admit P's claim, affirmative defense, counterclaim) - could ask for Motion to Dismiss if they were wrongly accused P:Reply (answer to D's affirmative defense, counterclaim) P: |
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Affirmative Defense
Counterclaim |
AD - When the defendant makes a successful motion to dismiss
CC- a new claim by the D arising from the matters stated in the complaint |
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Motion for Dismiss
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When it is evident from the complaint during the pleadings that the plaintiff doesn't have enough to make a valid claim the court can decide to end the case early
*Most important type if M for D is a Demurrer |
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Demurrer
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This motion basically says "So What?" to all the factual allegations in the complain. It asserts that the plaintiff cannot recover even if all the allegations are true because no rule of law entitles him to win on those facts
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Discovery - Summary Judgment
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Discovery is the depositions, interrogatories, and written documents
*Summary Judgment is a device for disposing of relatively clear cases without a trial *different from demurrer because it involves factual determinations *To win a SJ the party must show 1) There is no genuine issue of material (legal significant) facts 2) That he/she is entitled to judgment as a matter of law *Whom ever wins the SJ wins the case if it is denied it proceeds to trial |
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Pre-Trial Conference
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*Before the trial held at the discretion of the judge
*its a conference where the judge meets informally with the attorneys from both sides they try and get the different parties attorneys to stipulate or agree on certain issues in order to simplify the trial *Any decisions are binding to the rest of the case |
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The Trial
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*Must get through discovery and pre-trial motions to get to trial
*May be before a judge alone (a bench trial) or if the right to a jury exists and either party demands one then there can be a jury present Trial Procedure 1. Opening arguments 2. Plaintiff: Direct, Cross, and Redirect examinations 3.Defendant: Direct, Cross, and Redirect examinations 4. Closing arguments 5. Jury Deliberations - Verdict |
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Directed Verdict
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Rarely used, no jury just judge - the judge can take the case away from the jury and provide a judgment to one of the parties before the jury gets a chance to decide to case
*This happens after one party has presented their evidence |
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Judgment Notwithstanding the Verdict
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Sometimes after the jury has reached a verdict one party can win a judgment
*Cannot be made sometimes unless a motion for the directed verdict was made |
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Motion for New Trial
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*Jury decision - Judge Override
*In specific jurisdictions sometimes the losing party can successfully move for a new trial but only if there were legal errors by the judge during the trial, jury of attorney misconduct, the discovery of new evidence, or an award of excessive damages to the plaintiff *USUALLY unsuccessful |
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Appeal
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Can Reverse/Remand or Affirm
*if it is affirmed there is an entry of judgment (it can be in favor of the P or the D) *then there is an Enforcement of Judgment |
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Enforcing a Judgment
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When the defendant loses and fails to pay as required after losing a civil case, the winning plaintiff must enforce the judgment
*may have to get a Writ of Execution which allows the sheriff to seize designated property of the defendant and sell it at a judicial sale to help get the P some of their money/damages/winnings |
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Alternative Dispute Resolution (ADR)
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Alternative ways to resolve a case without going through the whole court process
1) Settlement Agreement 2) Arbitration 3) Mediation |
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Settlement Agreement
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*Settle a case once it is filed to take matters into own hands
*Parties can settle at any time (Quicker, Usually cheaper, Compromise) *Neutral Party |
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Arbitration
Mediation |
Arbitration
*Makes Decision - its a binding decision but not in the court system Mediation *Leads to Compromise BOTH *Have Neutral Parties *Are alternatives to going to court |
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PROs and CONs of ADR
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PROS of ADR
•Quicker resolution of disputes not so lengthy •Lower costs in time money and aggravation for the party’s •Less risk of an unfavorable verdict and more expensive settlement/sentence •Lessens the strain on the overload of cases for the court systems •Use of decision makers with specialized expertise •Potential for compromise decisions that promote and reflect consensus between the parties CONS of ADR •Sloppy/Biases decisions •Too few cases loses the sense of legitimization •Isolates the judicial system from the public and loses its role in educating the public •Causes public dissatisfaction because it doesnt give the litigants their chance to be heard and doesnt give them their day in court •Gives the newer lawyers less experience w/ trials and makes them deal more w/ pushing papers and only appearing in court for motion calls •Endangers stare decisis and uses 2nd class justice |
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Criminal Vs. Civil Torts
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Criminal
*Wrong against state ("the people") ("Charged with...") *Mostly Statutory *Prosecutor ("the people") vs. defendant *Beyond a reasonable doubt 90% *Sentence (fine, incarceration) Civil *Wrong against a person ("sued for..") *Mostly Common Law *Plaintiff vs. Defendant *Preponderance of evidence 51% *Liable / Not Liable *Damages ($, compensatory, punitive) |
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Intent
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The desire to cause certain consequences or the substantial certainty that those consequences will result from one's behavior
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Recklessness
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*A form of intent involving substantially certainty blended by degree into a different kind of fault
*It is a conscious indifference to a known and substantial risk of harm created by one's behavior |
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Strict Liability
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Liability without fault or more precisely, liability irrespective of fault
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Compensatory Damages
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*Physical Injury
*Medical Expenses *Lost Wages or Benefits |
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Punitive Damages
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*Not intended to compensate tort victims for their losses, instead they are designed to punish the defendants wrong doings.
*This involves extra money for the recklessness of the actions that occurred to the victim |
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Intentional Torts - Interference with Personal Rights
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*Battery
*Assault *False Imprisonment *Intentional Infliction of Emotional Distress *Defamations *Invasion of Privacy |
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Intentional Torts - Interference with Property Rights
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*Trespass
*Private Nusiance *Conversion |
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Battery
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A) Intentional – on purpose not accidental
B) Touching of another (P) C) That is harmful or offensive D) Without P’s consent |
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Assault
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a) Intentional
b) Putting of another (P) c) In apprehension – (P must be aware of it at the time – ex. Cannot be sleeping) d) Of immediate battery – (no physical contact) |
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False Imprisonment
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a) Intentional
b) Confinement of another (P) c) For an appreciable period of time – longer amount of time means ≥ 2 Hours d) Without P’s consent e) P must be aware of confinement |
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Transferred Intent
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Intended to actual
• If you intend to scare someone by threatening him or her with assault it can be transferred to battery if you end up hitting him or her. |
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Intentional Infliction of Emotional Distress
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a) Outrageous conduct (by D)
AND – need both b) Severe emotional distress (to P) • More intangible |
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Defamation
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*Harmful to a persons reputation
a) Unprivileged b) Publication – just telling one person (communicating) c) Of false – can’t be an opinion, something factual opinions don’t count as defamation must be false *And – must be both C and D d) Defamatory – harmful to reputation e) Statements – could be physical, oral, written words, picture, permanent form, could be on the internet f) Concerning another – identify individuals once someone is dead you cannot make a false defamation (might hurt families rep) g) + Made w/ “Malice” (if P is a public figure) |
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Malice
Oral Written |
= Statement made with knowledge false and reckless disregard of the truth
= Slander, harder to prove = libel, damages are presumed |
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Invasion of Privacy
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*Interference with right to be left alone, reasonable expectation of privacy
a) Intrusion on personal solitude or seclusion – “peeping tom” b) Public disclosure of private facts – must be true and private, widespread no exact number ≥ 1 c) False light publicity – misinterpretation / portrayed wrongfully d) Appropriation of name or likeness – commercial purposes, promoting |
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Trespass
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*a Physical interference / invasion of someone else’s property or stuff
a) Intentional – need to have intended to be somewhere or leave your property somewhere b) Unauthorized or unprivileged – “knowingly” c) Physical invasion of P’s land |
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Private Nuisance
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*Non-physical interference
a) Intentional b) Substantial and unreasonable c)Interference d) With P’s use and enjoyment of P’s land |
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Conversion
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*Civil side of theft
a) Intentional b) Exercise of dominion and control c) Over P’s personal property d) Without P’s consent |
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Negligence
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A failure to use reasonable care, with harm to another party occurring as a result
*Duty *Breach of Duty *Injury *Causation *Res Ipsa Loquitur |
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Negligence - Duty
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TO PROTECT
A. Reasonably Prudent Person in similar circumstances - its their Duty to avoid reasonably foreseeable risks of harm to others • Ex. Texting while driving B. Adjusted for personal characteristics of D – (may sue parents – responsible) - Child, physical disability (not mental disability or intoxicated) - Duty to act as RPP of similar age, experience and ability • Can sue a child if a reasonable careful child wouldn’t do the same C. Relationship - Professionals (i.e. accountants, doctors, lawyers) • Duty owed to clients/patients to use knowledge, skill and care of RPP in same profession D. Relationship - Landowners/Possessors – duty owed to entrants - must warn all persons • Invitees • Licensees • Trespassers |
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Invitees
Licensees Trespassers |
= Someone over for personal reasons, protect them from things they are unaware of
= Someone on the property for own reasons with consent = Someone on the property without consent, can be implied, warn do not intentionally harm them |
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Negligence - Breach of Duty
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*Violated the duty
A. Failure to act as a Reasonably Prudent Person (RPP) - Doing something that an RPP would not do, OR, Failing to do something that an RPP would do B. Negligence Per Se 1. D violates statute 2. P is person statue was designed to protect 3. P suffered harm that statute was designed to prevent |
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Negligence - Injury
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A. Types of injuries law seeks to protect
1. Personal Injury 2. Property Damage 3. Incidental Damages (ex: lost profits/wages) 4. Emotional injury (sometimes) – hardest to get in court B. Eggshell Skull Rule: (Humpty Dumpty) - D takes victims as he/she finds them • If something happens as a cause of your actions (more susceptible to physical injury) link b/w break of duty & injuries |
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Negligence - Causation
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A. Both types of causation must be met
1. Actual Cause (“but for” test) AND – must have both 2. Proximate Cause (Foreseeability Test) – close enough, strong • Ex. On a boat without a life jacket fall off and get eaten by a shark; no proof eaten b/c no lifejacket B. Subsequent Acts/Events 1. If unforeseeable: • Intervening cause, breaks casual chain and relieves D of liability 2. If foreseeable • Does not break casual chain and does not relieve D of liability |
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Negligence - Res Ipsa Loquitur
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** (“the thing speaks for itself”) – usually used in medical mal practice cases, used to help the plaintiff when they cant get all the facts
A. Requirements: (plaintiff can use with presumption of negligence) 1. Instrumentality of harm was under D’s exclusive control – defendant had complete control • Ex. The surgical sponge left in the body 2. Harm would not occur in absence of negligence – D was negligent 3. P was not responsible for his/her own injury B. Presumption of Negligence 1. Shifts burden of proof from P to D 2. D has to prove he is not guilty 3. Guilty until proven innocent |
