Part 1 - Introduction To American Law

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Natural Law

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The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. (oldest and most significant school of legal thought)

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Positive Law (positivist school)

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The body of conventional, or written, law of a particular society at a particular point in time. (School of legal thought whose adherents believe that there can be no higher law than this one).

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Historical School

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A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be

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Legal Realism (sociological school)

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A school of thought popular in 1920s and 30s that challenged many existing jurisprudential assumptions, particular the assumption that subjective elements play no part in judicial reasoning...have a pragmatic approach to the law (school of thought that views the law as a tool for promoting justice in society)

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breaches

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To violate a law, y an act or an omission, or to break a legal obligation that one owes to another person or society.

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Sources of Law

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Constitution
Statutes
Case Law
Regulations (Administrative)

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Statutory Law

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Laws enacted by legislative bodies at any level of government. Also includes local ordiances (statues passed by municipal or county governing units to govern matters not covered by federal or state law)

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Administrative Law

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The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities

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Case Law

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The rules of law announced in court decisions.

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stare decisis

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A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.

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public policy

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A government policy based on widely held society values and (usually) expressed or implied in laws or regulations

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precedent

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A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts

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Classifications of Law

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Substantive Law
Procedural Law
Civil Law
Criminal Law

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Substative Law

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Law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law, which defines the manner in which these rights and duties may be enforced

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Procedural Law

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Rules that define the manner in which the rights and duties of individuals may be enforced

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Judicial Review

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The process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch (checks and balances)

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Jurisdiction

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The authority of a court to hear and decide a specific action

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Personal Jurisdiction

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Court jurisdiction over the "person" involved in a legal action (in personam jurisdiction)
(Corporation is a resident of any state where it is incorporated, has its principal place of business or does business)

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Subject Matter Jurisdiction

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Jurisdiction over the subject matter of a law suit. (Exists automatically when a court has personal jurisdiction. Happens in federal court if diversity exists or the case involves a federal question)

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in rem Jurisdiction

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"jurisdiction over the thing" Court jurisdiction over a defendant's property

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Long Arm Statute

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A state statute that permits a state to obtain personal jurisdiction over nonresident defendents. A defendent must have "minimum contacts" with that state for the statute to apply

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Federal Question

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A question that pertains to the US Constitution, acts of Congress, or treaties.
-Federal Crimes
-Antitrust
-bankruptcy
-patents/copyrights/trademarks
-admirality
suits against the US

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Diversity of Citizenship

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A basis for federal court jurisdiction over a lawsuit between (1) citizens of different states (2)a foreign country and citizens of a state or of different states (3) citizens of a state and citizens or subjects of a foreign country. Must be more than $75,000

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Concurrent Jurisdiction

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Jurisdiction that exists when two different courts have the power to hear a case (ex: some cases can be heard in state or federal court, often in diversity of citizenship cases)

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Exclusive Jurisdiction

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Jurisdiction that exists when a case can be heard only in a particular court or type of court such as a federal or state court

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Standing to Sue

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sufficient "stake" in a matter to justify seeking relief through the court system. party must have suffered harm or been threatened with harm

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Writ of certiorari

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An order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review (4/9 justices must approve - rule of four)

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Litigation

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the process of resolving a dispute through the court system

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Types of alternative dispute resolution (ADR)

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Negotiation-parties meet informally with or without their attorneys and attempt to agree on a resolution
Mediation - a neutral 3rd party meets and emphasizes points of agreement to bring them towards resolution
Arbitration - parties present their arguments and evidence before an arbitrator at a hearing, arb renders a decision resolving the parties dispute

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Motion to Dismiss

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Even assuming truth of opponent's facts, you win as a matter of law - no need for trial

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Discovery

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The process of obtaining information from the opposing party or from witnesses prior to trial (parties are required to give)

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voir dire

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Jury selection process. Attorneys ask prospective jurors oral questions to determine whether they are biased or has any connection with a party to the action or with a prospective witness

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Hearsay

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Any testimony given in court about a statement made by someone else who was not under oath at the time of the statement

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priveleges and immunities clause

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clause in constitution that prevents a state from imposing unreasonable burdens on citizens of another state (particularly with regard to means of livelihood or doing business)

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Full Faith and Credit Clause

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Clause in the constituion that ensures that rights etablished under deeds, wills, contracts, and similar instruments in one state will be honored by other states (applies only to civil matters)

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commerce clause

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clause in the constitution that permits Congress to regulate interstate commerce (courts interpret so broadly it is almost a dead issue. almost anything can "affect" interstate commerce)
Note: states cannot unnecessarily impinge upon interstate commerce

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First Ammendment

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Guarantees freedom of religion, speech, and press
assemble peacealy
petition the government

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Second Ammendment

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Right to bear arms

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Thid Ammendment

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Prohibits the lodging of soldiers in any house without the owern's consent

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Fourth Ammendment

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Prohibits unreasonable searces and seizures of persons or property

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Fifth Ammendment

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Guarantees the rights to indictment by grand jury, due process of law, and to fair payment when private property is taken for public use; probitis self-incrimination and double jeopardy

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Sixth Ammendment

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Guarantees a speedy and public trial by an impartial jury and with counsel

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Seventh Ammendment

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Guarantees the right to trial by a jury in a civil case involving at least $20 (40 days pay back when Const was written)

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Eighth Ammendment

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Prohibits excessive bail and fines as well as cruel and unusual punishment

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Ninth Ammendment

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Etablishes that people have rights in addition to those specified in the Constitution

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Tenth Ammendment

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Powers not delegated to the federal government nor denied to the states are reserved to the states and to the people

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Procedural Due Process

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Any government decision to take life, liberty, or property must be made equitably; the government must give a person proper notice and an opportunity to be heard

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Substantive Due Process

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Protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them. (Limits what governemnt may do in its legislative and executive capacities)

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Equal Protection Clause

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The government cannot enact laws that treat similarly situated individuals differently

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strict scrutiny

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A standard where the classification must be necessary to promote a compelling state interest (based on a suspect trait - race, national origin, citizenship status)

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Intermediate scrutiny

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A standard applied in cases involving discrimination based on gender or legitimacy

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Rational Basis Test

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In matters of economic or social welfare, a classification will be considered valid if there is any conceivable rational basis on which the classification might relate to a legitimate government interest (almost impossible to fail this test)

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Eminant Domain

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The government has ultimate ownership right in all land in the US. Sometimes referred to the condemnation power of government to take land for public use

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Compensatory Damages

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In torts, these are intended to compensate or reimburse a plantiff for actual losses

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Punitive Damages

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In torts, these are intended to pubish the wrongdoer and deter others from similar wrongdoings

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assault

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any intentional, unexcused act that creates in another person a reasonable apprehension of immediate harmful or offensive contact

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battery

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the completition of the act that caused the apprehension (assault) - an unexcused and harmful or offensive physical contact intentionally performed

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defamation

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wrongfully hurting a person's good reputation
- a false statement of fact
-published
-causation
damages (assumed in libel)

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libel

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Defamation in writing

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slander

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defamation orally

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Intentional Torts against Persons (list)

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assault, battery, false imprisonment, defamation, infliction of emotional distress, invasion of privacy, fraudulent misrepresentation

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Intentional Torts against Property (list)

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trespass to land, trespass to personal property, conversion, nuisance

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Business Torts

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tortious interference with contractual relationship, tortious interference with business relationship, defamation

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trespass to land

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anytime a person without permission, enters onto, above, or below the surface of land that is owned by another (actual harm to the land is not essential)

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trespass to personal property

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whenever an individual, without consent, takes or harms personal property of another or interferes with lawful owner's possession (harm destruction and anything that diminishes its value, condition, or quality)

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conversion

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whenever a person wrongfully possesses or uses personal property of another as if the property belonged to her or him

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fraudulent misrepresentation (fraud)

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intentional deceit for personal gain

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negligence

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the failure to exercise the standard of care that a reasonable person would exercise in similar circumstances

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negligence (must establish...)

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duty, breach (failure to act as reasonable person), causation (causation in fact "but for", proximate cause - forseeable consequences), damages

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defenses to negligence

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assumption of risk (knowledge, voluntary), elements not met

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contributory negligence

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a plantiff who was also negligent (failed to exercise a reasonable degree of care), if plantiff at all at fault they get NOTHING

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comparative negligence

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enables both the plaintiff's and the defendant's negligence to be computed and the liability for damages distributed accordingly

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strict liability

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liability regardless of fault

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strict liability (elements)

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(1) product defective when def. sells it
(2) def. normally in the business of selling
(3) product is unreasonably dangerous
(4) harm
(5) causation
(6) Goods not substantially changed

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defective products and unreasonably dangerous (for strict liability)

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(1) manufacturing defect
(2) design defect - reasonable alternative design available and not adopted OR no reasonable alternative design but utility does not justify product's presence on the market
(3) lack of reasonably warning

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statutes of repose

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place outer time limits on product liability actions - ensures that sellers/manufacturers won't be left vulnerable to lawsuits indefinitely

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market-share liability

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a method of sharing liability among several firms that manufactured or marketed a particular product that may have caused the plaintiff's injury. Used when true source is unidentifiable (proportion of market)

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beyond a reasonable doubt

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in a criminal case, the state must prove its case according to this

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actus reas

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a prohibited act (guilty act) attempts also prohibited

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mens rea

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guity intent (state of mind, necessary to prove unless strict liability crime

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responsible corporate officer doctrine

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a court may impose criminal liability on a corporate officer regardless of whether he or she participated in, directed, or even knew about a given criminal violation

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robbery

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taking of money, personal property, or any other article of value from a person by means of force or fear (aggrevated robbery - involves deadly weapon)

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burglary

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breaking and entering the dwelling of another at night with the intent to commit a felony

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larcey

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unlawful taking and carrying away of someone else's personal property with the intent to permanently deprive the owner of possession

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arson

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the willful and malicious burning of a building owned by another

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forgery

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the fraudulent making or altering of any writing (including electronic records) in a way that changes the legal rights and liabilities of another

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embezzlement

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when a person entrusted with another person's property or funds fraudulently appropriates that property or those funds

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RICO

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Racketeer Influenced and Corrupt Organizations Act
-it is a federal crime
-mail fraud, wire fraud, securities fraud, bankruptcy fraud, embezzlement, obstruction of justice, witness retaliation, witness tampering, money laundering

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Defenses to Criminal Liability

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infancy, intoxication, insanity, mistake of fact, consent, duress (wrongful threat of one person induces another to perform an act he/she otherwise would not have performed), self-defense, necessity, entrapment