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Intro to Law Chapters 1-3

Terms in this set (166)

An inquiry about law could begin or include a study of:
Definitions of law
Philosophy of law
History of law
Functions of law and
Sources of law
Law consists of
Norms (standards of behavior)
Regularly enforced by coercion
By persons authorized by society
As stipulated by courts of law
U.S. Law is based on the English Common law
English common law derived its legitimacy from experience and custom
Influenced by Norman invasion of 1066
Kings Courts
Chancellor courts (equity)
Use of case law as precedent
Second most common legal system in the world
Modern U.S. Common Law
Federalism - Union of states under federal government
Doctrine of stare decisis or precedent
Mandate that Inferior courts follow decisions of superior courts
Provides stability and predictability to legal system
Alternate references for term common law
Case law
Court law
Unwritten law
*"Quilt" Legal System- we took out pieces and exchanged for others*
Stare Decisis
Latin term meaning "To stand by decided cases."
Treating these cases as "Precedent."
Application of doctrine in typical situations
Variables to consider when applying rule
Jurisdiction issues (Which court, Which State?)
Identity or similarity of facts
Currency
Change in cultural values
Change in scientific knowledge
Lawmaking by other than courts
Legislators
Federal & State - Doctrine of Supremacy
Statutes
Codes
Ordinances
Treaties
Executive Branch
Veto
Executive orders
Treaties
Administrative agencies
People
Initiatives
Classifications & Categories of Law
Federal
State

Civil
Criminal

Private
Public
International
Domestic

Procedural
Substantive
Federal law
National in origin
Consistent with constitution
Supreme over state law
Exclusive in International affairs
Multiple sources of federal law
State Law
Ordinary affairs of citizens including most contract, tort, and criminal law
Multiple sources of state law
Civil Law
Body of law directly concerning the rights and duties between parties
Criminal Law
Body of law dealing with crimes and their punishment
Private Law
Body of law regulating rights and duties existing between private persons. The rights and duties are created by the affected parties
Public Law
Body of law directly concerned with public rights and obligations
International Law
Governing relations between sovereign nations
Domestic Law
Law of a particular sovereign nation
Challenges to Domestic vs. International
Challenges include international trade, travel, and violence given the limited ability to enforce international law
Procedural Law
General principles and detailed rules that define the methods of administering the substantive law
Substantive Law
General principles and detailed rules defining legal rights and duties
Law and Ethics
Legal rules and rules of ethics serve different goals
Law is imperfect -exclusive compliance with the law may fall short of correct behavior. It is possible to comply with the letter of the law and still not act in a moral manner
What Are Ethics?
-Ethics is study of the general nature of morals and moral choices to be made by the individual in relationships with others
-Rules or standards governing the conduct of the member of a profession, e.g., the legal profession
-Standards of fair and honest conduct
Morals
Relating to whether conduct is right or wrong, generally similar to ethics although used in a more personal sense
Norms
Standards of behavior
Normative Judgements
Value judgments as to right and wrong
Non-Normative
Statements of fact which are value neutral
Duty-based Ethics
Actions are morally correct if they comply with existing obligations owed another or ourselves
-Often religious based
-Kantian ethics
Utilitarianism
Determining right conduct is based on consequences; that the purpose of the behavior should be the greatest happiness of the greatest number people
Moral Reasoning
A rational thought process directed at testing whether action is right or wrong. The conclusion is a determination of moral responsibility or culpability
Deductive logic
-A method of logical reasoning from two or more propositions to a conclusion. Inferences are drawn from a general premise to a specific premise. The conclusion is valid if the proposition on which the conclusion is based is true
Court Cases
Federal v. State cases
Trial v. Appellate court cases
Citation - manner in which court cases are identified, 76 Cal.App. 4th 715, 90 Cal.Rptr.2d. 4 (California, 1999)]
76 - volume
Cal. App. - name of the reporter
4th - edition of reporter
715 - page where case can be found
90 Cal.Rptr.2d. 4 - parallel citation to another reporter
California - state in which decision was rendered
1999 - year the case was decided
Court Cases Terminology
Unanimous opinion: A judicial decision with complete agreement by all judges
Majority opinion: A written opinion by a judge outlining the views of the majority of the judges of the court deciding the case
Concurring opinion: A written opinion wherein a judge agrees (concurs) with the result reached by another judge, but for different reasons from those stated by the other judge
Dissenting opinion: A written opinion by a judge or judges who vote contrary to the majority opinion and holding of the court
Constitutionalism
➢definition-the principles of constitutional government; adherence to them, including notably, restrictions and limitations on government power
➢arbitrary and capricious-action taken impulsively or in bad faith ad without good or valid reasons
Federalism
a system of government in which the people are regulated by both federal and state governments
Preemption
a doctrine referring to the right of the federal government to be the exclusive lawmaker in certain areas (examples coining $, entering into treaties)
Ex Post Facto Laws
make a person criminally responsible for an act that was committed before the act was made a crime
➢Every law that makes an act done before the passing of the law, and which was innocent when done, criminal, and punishes such action.
➢Every law that aggravates a crime, or makes it greater than it was when committed.
➢Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.
➢Every law that alters the legal rules of evidence and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender
➢The policy, the reason and humanity of the prohibition against passing ex post facto laws, do not extend to civil cases, to cases that merely affect the private property of citizens.
Supremacy Clause
the clause in the constitution that makes the constitution the supreme law of the land "The Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be supreme law of the land; and the judges of every state shall be bound thereby

Police power. An authority conferred by the American constitutional system in the Tenth Amendment, U.S. Const., upon the individual states, and, in turn, delegated to local governments, through which they are enabled to establish a special department of police; adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of the citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.
Supremacy Clause Cont'd
Black's Law Dictionary, Sixth edition, page 1156
➢The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity.
➢The police power is subject to limitations of the federal and State constitutions, and especially to the requirement of due process
Role of Executive
o Enforce the law. To achieve this the executive administers the prisons and the police force, and prosecutes criminals in the name of the state.
o Conduct the foreign relations of the state and/ or country
o Command the armed forces.
o Appoint state/ federal officials, including judges and diplomats.
o Administer government departments and public services.
o Issue executive orders (also known as secondary legislation, ordinances, edicts or decrees).
o Most constitutions require that certain executive powers may only be exercised in conjunction with the legislature. For example, often the consent of the legislature is required to ratify treaties, appoint important officials, or to declare war.
Role of Judicial
o Judicial review in the United States
• The power of judicial review is held by courts in the United States
• The only explicit definition given in the Constitution is in Article III, where it says that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
• judicial review was established in the Supreme Court decision in Marbury v. Madison.
• The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States.
• The ultimate court for deciding the constitutionality of state law under state constitutions is the highest appellate court in each state -- usually called a Supreme Court, but also sometimes known as the Court of Appeals.
• the first seventy-five years of the Republic, the Supreme Court only struck down two pieces of legislation. Thereafter, laws were invalidated only in bursts, for instance, at certain times in the Progressive Era and during the New Deal.
• Since 1986, when current Chief Justice William H. Rehnquist joined the court, laws have been declared unconstitutional much more commonly than at any time previous.
• As of the end of 2004, the Rehnquist court has declared unconstitutional more than three dozen laws.
o Federal Court System
• District
• More than 90 federal District Courts
• Courts of original jurisdiction→ trial courts
• Only hear cases where federal jurisdiction exists→ federal crime committed or where residents are from different states and the amount in dispute in more than 75,000 (diversity of citizenship)
• Special Trial Courts
• Bankruptcy
• US Claims Court
• Tax Court
• Federal Appellate Courts
o 13 jurisdictions make up the intermediate level of the federal system
o en banc- entire panel of judges from the Circuit hear the case
o affirm; reverse or remand
• Supreme Court
o appellate jurisdiction for cases involving a Constitutional issue, question of federal law
o must file writ of certiorari- requesting a hearing at least four of the judges must want to hear the case (Rule of Four)
o original jurisdiction- all cases affecting ambassadors and those cases in which a State is a party the Supreme Court has (Article III)
Role of Legislative
o Powers granted to the congress
o collect taxes
o borrow $
o regulate commerce w/ foreign nations and b/t states
o establish rules for naturalization and bankruptcy
o coin and regulate $
o punish counterfeiting
o establish post offices
o establish patents and copyrights
o establish inferior courts
o define and punish admiralty law
o declare war
o raise and support the armies
o maintain the navy
o regulate land and naval forces
o call forth a militia
o organize arm and train a militia
o govern the area to become the capitol
o make all laws necessary to carry out the foregoing powers
Role of Legislative (Commerce Clause)
o Article I, Section 8, Clause 3 of the United States Constitution empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
o Commerce Clause has been the subject of intense constitutional and political disagreement centering on the extent to which Federal legislation may govern economic activity connected to interstate commerce but occurring within a state. Some have argued that the clause should be interpreted broadly to include a wide range of activities as related to commerce and the Supreme Court has often agreed with this interpretation.
o In Gibbons v. Ogden (1824), Justice Marshall ruled that the power to regulate interstate commerce also included power to regulate interstate navigation: "Commerce, undoubtedly is traffic, but it is something more—it is intercourse ... [A] power to regulate navigation is as expressly granted, as if that term had been added to the word 'commerce'
o [T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines."
o In Swift v. United States (1905), the Court ruled that the clause covered meatpackers; although their activity was geographically "local", they had an important effect on the "current of commerce" and thus could be regulated under the commerce curve.
o Stafford v. Wallace (1922) upheld a federal law regulating the Chicago meatpacking industry, because the industry was part of in the interstate commerce of beef from ranchers to dinner tables.
Commerce Clause Cont'd
The clause was the subject of conflict between the U.S. Supreme Court and the Administration of Franklin D. Roosevelt in 1935-37 when the Court struck down several of the President's "New Deal" measures on the grounds that they encroached upon intrastate matters. After winning the 1936 election by a landslide he proposed a plan to appoint an additional justice for each unretired Justice over 70. Given the age of the current justices this permitted a court of up to 15. Roosevelt claimed that this was not to change the rulings of the court, but to lessen the load on the older Justices, who he claimed were slowing the Court down.
o The wide interpretation of the scope of the commerce clase continued following the passing of the Civil Rights Act, which aimed to prevent business from discriminating against black customers.
o In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers;
o in Katzenbach v. McClung (1964) the Court ruled that the government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines;
o and in Daniel v. Paul (1969), the Court ruled that the government could regulate an entire 232 acre (0.9 km²) recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.
o In 1995, the limits of the power of the Federal government under the commerce clause was once again tested in United States v. Lopez (later clarified by United States v. Morrison). There Justice Rehnquist, delivering the opinion of the Court, ruled that Congress only had the power to regulate:
• the channels of commerce,
• the instrumentalities of commerce, and
• action that substantially affects interstate commerce
Thus the government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools which had been banned by the law at issue. It was the first time since the conflict with President Franklin Roosevelt in 1936-37 that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches 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.
Amendment V
No person shall be held to answer 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 the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a 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 accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Amendment I
o The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference
o Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief.
o The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress.
o Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments.
Two clauses in the First Amendment that guarantee freedom of religion
• The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state. Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited.
• The free exercise clause prohibits the government, in most instances, from interfering with a persons' practice of their religion.
The most basic component of freedom of expression is the right of freedom of speech...
• The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech
• A less stringent test is applied for content-neutral legislation.
• The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. The right to free speech includes other mediums of expression that communicates a message.
• Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression.
• It does not afford members of the media any special rights or privileges not afforded to citizens in general.
The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief....
• The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. This implicit right is limited to the right to associate for First Amendment purposes.
• It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the based on an individuals current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups.
• The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts (litigation) or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.
Right to Privacy
o There is no actual language in the Constitution that gives Americans the right to privacy; indeed, there is no Amendment purporting to give Americans such a right.
o However, in the 1960 case, Griswold v. Connecticut, the Supreme Court of the United States read into the Bill of Rights what was always implicitly there - a right to privacy, existing under natural law, or in the "shadows" and "penumbras" of the Constitution. The case, about the right to use contraceptives, was a landmark decision that more or less set the stage for privacy rights
o the right to be left alone without unwarranted intrusion by government, media, or other institutions or individuals. While a consensus supporting the right to privacy has emerged (all recently confirmed Justices to the Supreme Court have affirmed their belief in the right to privacy), the extent of the right, and its basis in constitutional law, remain hotly contested
o The right to sexual privacy as set forth in Griswold was one of the main foundations of the court's decision in Roe v. Wade (1973) to overturn state abortion statutes. Later attempts to extend the right of privacy to consensual homosexual acts in Bowers v. Hardwick (1986) were initially rejected by the court. In 2003, however, the court reversed that decision and rejected all antisodomy laws.
Courts
(a) A governmental body that administers justice by applying laws to civil controversies and criminal offenses (b) the place where trials are held
Plaintiff
in trial, the person trying to recover money damages or other relief from a D; the person who initiates the proceedings (files a complaint); in a criminal trial the P is always the State (and the victim merely testifies or gives information to the P
Defendant
(a) in a civil trial, the person from whom money damages or other relief is sought (the person who is alleged to have harmed another in some way—that could be in a criminal or non-criminal manner); (b) in a criminal trial, the accused (person who has harmed another or society in a criminal manner); the D in a civil trial must file an answer to the P's civil complaint
Trial Courts
conduct the initial proceedings in legal disputes. These proceedings have three distinct purposes: (a) to determine the facts of the dispute (b) to determine what rules of law should be applied to the facts, (c) to apply the rules it has chosen to the facts at hand
Appeal
a formal request to a higher court to review the action of the lower court
Appellant- the party that was not pleased with all or part of the prior decision and has asked the appellate court to review the decision; sometimes both parties seek an appeal on a matter, in that case whichever party files its appeal first is the appellant
Appellee- The party opposite of the Appellant (for example, if the P is not happy with the verdict and appeals, the P becomes the appellant and the D becomes the appellee)
Appellate Courts
Court of review that examine the decisions of lower courts for substantive and procedural correctness
➢ in civil cases there is no automatic right to have the state's highest court consider and appeal
➢ the criminal cases resulting in the death penalty, the right to an appellate review by the state's highest court is guaranteed
➢ the appellate court works from a transcript of the trial as well as the evidence that was accepted by the lower court
➢ appellate court do not listen to witnesses, accept new evidence, make new determinations of fact, or utilize a jury
➢ the court receive briefs containing legal arguments of lawyers as to how the laws were applied incorrectly
➢ the appellate court accepts as true the evidence accepted by the trial court; however the appellate judge weights the evidence and facts to decide of they were enough to justify the judgment
➢ if the trial judge erred, the appellate court may reverse and either enter a new judgment or remand it for further proceedings
➢ a very small percentage of cases are appealed
Jurisdiction
the power of a court to decide a controversy and to award appropriate relief
In Rem Jurisdiction
Rem is Latin for 'thing.' When a court exercises in rem jurisdiction, it exercises authority over a thing, rather than a person. For example, if a divorcing couple asks a court to supervise the sale of their family home, the court exercises in rem jurisdiction over the house. Usually, the property must be located in the same county as the court for it to have in rem jurisdiction.
Ancillary Jurisdiction
jurisdiction giving a court the power to adjudicate claims (as counterclaims and cross-claims) because they arise from a cause of action over which the court has original jurisdiction;
o for example : supplemental jurisdiction acquired by a federal court allowing it to adjudicate claims that are based on state law but that form part of a case brought to the court under its diversity jurisdiction (sometimes called pendant jurisdiction)
o Ancillary jurisdiction allows a single court to decide an entire case instead of dividing the claims among several courts and proceedings, and allows a federal court to decide a claim that would otherwise be properly brought to a state court
Appellate Jurisdiction
the jurisdiction granted to particular courts to hear appeals of the decisions of lower tribunals and to reverse, affirm, or modify those decisions
Concurrent Jurisdiction
jurisdiction that is shared by different courts and that may allow for removal
otwo states may have concurrent jurisdiction over crimes committed on boundary rivers
Diversity Jurisdiction
the jurisdiction granted to federal courts over civil disputes involving parties having diverse citizenship (as in being from different states) where the matter in controversy exceeds a statutory amount (as $75,000)
o see Article III of the CONSTITUTION in the back matter
o The diversity jurisdiction of the district courts requires that there be complete diversity of the parties, which means that no party on one side has the same citizenship as a party on the other side.
Exclusive Jurisdiction
jurisdiction granted only to a particular court to the exclusion of others ; Ex: federal courts have exclusive jurisdiction over bankruptcy cases
Federal Question Jurisdiction
the jurisdiction granted to federal courts over civil actions arising under the Constitution, federal laws, or treaties of the U.S. : federal jurisdiction over cases involving a federal question
o The federal courts have usually interpreted the statutory phrase "arising under" rather strictly. U.S. Supreme Court decisions have held that the plaintiff's pleading must establish that the cause of action raises an issue of federal law (as by depending on construction or application of a federal law)
In Personam Jurisdiction
the jurisdiction granted a court over persons before it that allows the court to issue a binding judgment also known as PERSONAL JURISDICTION
o The U.S. Supreme Court has held in a series of decisions that the exercise of personal jurisdiction must meet the requirements of due process and must not violate notions of fair play and substantial justice.
o The constitutional standard to determine whether a party is subject to the personal jurisdiction of a court is whether that party has had minimum contacts within the territory (as a state) of that court.
o to get in personam jurisdiction over a D you must have two things
• a applicable long-arm statute
• satisfaction of the federal requirement that the basis of jurisdiction meets due process requirements
Long-arm Statute
a state law authorizing a court to hear cases brought against non-residents under specific circumstances
Internet Jurisdiction
this is a list of possibilities listed in Morantz
• a mere presence on the www does not establish the minimum contacts necessary to subject a corporation to personal jurisdiction on a worldwide basis
• the minimum contacts analysis in cases involving the Internet is conducted on a sliding scale on which the constitutionality of the exercise of personal jurisdiction is directly proportional to the level of commercial interactivity of a corporation's website
• a Web site targeted at a particular jurisdiction is likely to give rise to personal jurisdiction
• courts will consider the quality and quantity of contacts with the Ps jurisdiction to which the Internet site has given rise in determining whether personal jurisdiction may be exercised
In Rem Jurisdiction
the jurisdiction granted a court over property that allows the court to issue binding judgments (as an order for partition) affecting a person's interests in the property
oPartition information: In real property issues, this is a civil action brought by one co-tenant against another co-tenant for a judicial determination of interests and an order to divide their interests in the co-owned property and for compensation. Afterwards, the interests in the property are individually owned.
Limited Jurisdiction
jurisdiction that is restricted (as to type of case)
Original Jurisdiction
the jurisdiction granted a court to try a case in the first instance, make findings of fact, and render a usually appealable decision
o the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States —U.S. Code
Pendent Jurisdiction
supplemental jurisdiction that allows a federal court to adjudicate state law claims which form part of a case that was brought to it under its federal question jurisdiction
o a specific form of ancillary jurisdiction
Quasi In Rem Jurisdiction
the jurisdiction of a court over a person which is based on the person's interests in property under the court's jurisdiction and which allows the court to issue a binding judgment against the person
Subject Matter Jurisdiction
the jurisdiction of a court over the subject, type, or cause of action of a case that allows the court to issue a binding judgment
o Diversity jurisdiction, federal question jurisdiction, and jurisdiction over admiralty and bankruptcy cases are examples of the federal courts' subject matter jurisdiction. Subject matter jurisdiction is generally established by statute.
Venue
from the French meaning "to come"; this is the proper place for a trial (referring to the locality within the larger jurisdiction)
o proper venue reflects a policy of closeness
o all things being equal, the following are common of state venue rules
• in divorce cases, the venue is the county of family residence
• in accident cases, the proper venue is the county where the accident took place or the county where the D resides
• in breach of k cases, venue is where the k was made or where it was breached or where the D lives
• in criminal cases, venue is where the crime occurred or where the D was apprehended
Motion for Change of Venue
request to a judge by counsel to transfer the trial to another local geographic location within the jurisdiction of the court
Civil Case Process
➢ complaint-document issued by the P alleging facts of the cause of action(s)
o cause of action- an existing right to seek and receive judicial relief assuming the factual allegations are true
➢ summons- a document issued by the clerk of a court inviting the D to respond to a complaint
o process server-a person who serves a copy of a summons and complaint (or other legal document) upon a party or witness at the request of opposing party to a civil litigation
Civil Case Process Cont'd
➢ answer- a document containing a Ds allegations of fact in response to a complaint
o answers and complaints are generally called the pleadings of a case
o demurrer or motion to dismiss-filed by a D as a response to a summons and complaint when allegations of the complaint, even if true, are insufficient to state a valid cause of action
o statute of limitations-a statute that bars civil or criminal proceedings unless brought within a specified period of time after the act occurred
Should there be Statutes of Limitations on Criminal Matters?
➢ default judgment-court awarded judgment based upon the Ds failure to answer a complaint or to appear at the trial to contest the claim of the P
o ex parte-a legal action where only one party is present
Criminal Case Process
➢ information-an accusation of a criminal offense issued following a preliminary hearing---- OR----
➢ grand jury-an appointed body of persons (somewhere between 18-23) formed both to investigate the operations of government and to issue indictments against persons suspected of criminal conduct (this process is called to bill or no bill someone)
o ADR (Alternative Dispute Resolution) any various means of resolving disputes through means other than the judicial process
➢ Discovery- group of methods used under court order during the period of time between the commencement of the lawsuit and the date of the trial used to learn facts about the dispute
o depositions-form of discovery where written questions directed towards a party who is expected to reply with written answers under oath )# is limited in all jurisdictions)
o deposition-questioning of a witness or adverse party to an action, under oath, by the opposing attorney before the trial
o impeach-to discredit a witness' testimony
Acquittal
Not legally responsible
Admissible
Evidence allowed in court
"is this evidence more probitive than prejudicial"- will it help case at hand?- decided by judge
Affidavit
Written/printed statement
Alternative Juror
4ish
Answer
formal written statement by defendant in civil case that responds to complaint
-Alibi- not guilty bc...
-Defense to crime- admits guilt w/ excuse
--self defense- complete defense, nol pros case- no legal action against you
--incomplete defense- intoxication- lets you off somewhat but not fully
--Necessity- restitution
Civil Case
Plaintiff- individual/business
Remedy- money, injunction (order from court)
Specific performance- (contract cases)- unique- monetary value not enough
Burdens of Proof- preponderance of evidence 51%
Criminal Case
Plaintiff- state (prosecution)
Remedy- jail time, fine, community service
BOP 90-95%- beyond reasonable doubt
Claim
-Complaint by plaintiff- tort
-Assertion to right of property/item by plaintiff
--Cross Claim: D1 to D2
Counter Claim: D to P
Appeal Process
SCOTUS:
-Rule of 4- almost majority of justices
-Writ of Certiari
-Appeal
FEDERAL:
-SCOTUS
--Circuit (Appeals) District
STATE:
-Supreme
-Appeals
-State
-Magistrate
(State and Magistrate- Separates misdemeanor from felony)
Bail vs. Bond
Bail:
-Big amount
-Set by judge
Bond:
-percentage of bail paid to get out
--Flight risk- minimum could mean you get out w/out posting bail/bond
Bench Trial
-minor cases/misdemeanors that don't have jury
-decided by judge
-Summary Trial
Jury Trial
-major misdemeanor/felony
-Trial heard by jury
FACTORS THAT INFLUENCE:
-Guilty- jury can be swayed- power of emotions
-Lawyer- good/liked by jury
-Defendant- good/likable
-Not guilty- bench-negative sway of emotion
Beneficiary
gets item left in estate
Bequeath
items in will
Burden of Proof
**DIFFERENT B/W CRIMINAL AND CIVIL**
Preponderance- 51%- reasonable doubt//90-95%- beyond reasonable doubt
Continuance
asking to push court case back-not unusual in both civil and criminal cases
FELONY:
-Average length of time: 12-19 months for case to be tried
--"Right to Speedy Trial"- 6th amendment//"speedy"= continuous"= w/out serious delay
--Evidence can disappear- degradation
--Wrongfully accused- loss
--"Cruel or Unusual Punishment"- psychological problems- specifically due to isolation ("enforced segregation"
Clear Docket
rid/handle all cases
Challenge
Potential juror
-Cause: juror might know defendant- especially in small towns
-Preemptive- both sides challenge but don't tell why (race&gender CANNOT be basis for challenge)
Motion
Attempt to stop bias
-change of venue- not fair to have trial in that jurisdiction-usually due to media
Court Clerk
responsible for maintaining permanent records of court proceedings and exhibits, and administering oath to jurors/witnesses- control about everything- give judge yes/no to go to court- judges listen
Codicil
"amendment" to will
Blue Law
prohibiting in nature
Statutory Law
-Created by Quasi-legislative group
-CODES- Every state has own- mostly proactive laws- written, voted on, put into book of codes- can change w/ time
EX: Technology: must be codified
-Takes time/money/effort to clean up codes- new laws overshadow old
-Proactive- lots of holes
Case Law
-Quasi-judicial- fills in holes of statutory law
--Statutory- negative-millionaires acting on average American's behalf- how effectively can they rep America as whole?
---Also hard to agree - Congress rarely can smoothly pass agenda-full load
Evidence
-Corpus delecti- evidence crucial to prove crime committed- "body of crime"- doesn't necessarily mean literal body- murder-still, if lungs/heart/enough blood found (DNA matching)- dead even w/body
Corroborating
Fallible- supplementary/circumstantial-supports initial evidence- "wrong place, wrong time", eye witness- best is 40% accuracy
Direct Examination/Cross/Redirect/Recross
Direct:
-witness's attorney- friendly- get all testimony but w/out objections- paint pretty picture
Cross:
-#1 goal- purger yourself-conflicting statements-impeach-discredits witness- opposing attorney
Redirect:
-rehabilitate witness- has to be w/in scope of cross
Recross:
-w/in scope of redirect
Damages
Spectrum:
-Minimum- compensate what was lost (negligence)
-Severe- "pain and suffering"
Deliberation
Decision- process of jury
Discovery
Opposing side must disclose information- defense in criminal- PARAMOUNT- less resources than prosecutors (police, investigators, etc) helps level playing field
Diversion
-Only b/w 1-5% make it to court
-Of 5%, 1% plea defenses (insanity)- 5% go to trial b/c not diverted
Other 95%:
-Most commonly- plea deal (cheap/quick)
-Null pros- prosecutor puts pin in case- not enough evidence or defendant does something good
-Diversion- write check, go to a school or probation
**Handling outside of court- helps not ruin records- record expunged**
En banc
more than 1 judge- panel of judges- appellate- procedural error- as many eyes as possible- 3:2/5:4 Split
Equal Representation
-14th Amendment- applies rights to citizens of states- Founding Fathers expected States to on their own (Bill of Rights-Federal)- Doctrine of Incorporation (DOI)- 14th Amendment protects rights guaranteed in first 10 to citizens
-Guarantees equal protection under law to everyone- does not discriminate against Title 7
Estate
Lawyer will try to find some living family if no estate plan exists
-Disperse estate to beneficiaries
-Will or Intestate w/ life insurance (doesn't go through probate) or trust- account set up w/ money in it watched over by trustee- watches over for beneficiary (has restrictions- age when accessible)
Et al
"and others"
Exclusionary Rule
-Judge-made (1911 SP)
-If police have illegal entry and have no cause to search- evidence gathered cannot be used to CONVICT you- only applies to guilt portion- does NOT apply to pre/post trial- NOT A CONSTITUTIONAL RIGHT!!- Case law can change
Exhibit
-Evidence you want jury/judge to see
-For controversial evidence or evidence that will visually help-
--CRIME SCENE PHOTOS
--Demonstrative- timeline/chart
**Helps jury make decision
Ex Parte
one side of case shouldn't have contact w/ judge w/out other
**UNCONSTITUTIONAL**
Ex Post Facto
-"After the fact"
-Law made after the fact
-Must be challenged to be named unconstitutional
-Moody, Alabama Example: exotic snakes illegal- cannot prosecute the man whose snakes escaped now that it is now illegal
----decreasing/increasing penalties for evidence (raising BOP from 51-75%)
Expunged
-Cleaning of records
-A lot of states have long, complicated process for expunging records
Fiduciary Relationship
-Close-knit
-They have a duty to act on your behalf that deals with money
-a legal duty to act solely in another party's interests
-Lawyers
Garnishment
Creditor can fill out paperwork w/ someone who owes them money- percent of wages
Lien
-Claim on property b/c you owe them money
-Mechanic lien- can hold car until service is paid for
Guardianship
-Infancy (minors) or older
-Elderly Law- take care of day-to-day needs-dangers-advantage being taken-#1 elder abuse is financial
Error
-Mistake made by someone at lower-court level
TYPES:
-Harmless: wouldn't been convicted anyways
-Harmful: led to fact-finder astray b/c jury structure was so wrong

Reverse and Remand- send back down to district court
Appellate courts don't try, just look for procedural error
Hearing
-Any form of judicial, quasi-judicial proceeding
-Any kind-of-trial but not full out trial to review case
EXAMPLE: Malpractice or underage drinking -Judicial board for hearing
-Responsible or not
-Fine, community service, etc
Mental Health/Drug Court
-Mental health/drug problems
-One leads to another
-Leads to criminal activity
Hearsay
-Statements by witness who did not see/hear incident but heard from someone else
-Second-hand info- not usually admitted/admissible in court
-Co-conspirator said outside of court (THIS IS AN EXCEPTION)
Holding
-Conclusion of case
-Decision of court
-Can be narrow or broad
Will
-Document signed by witnesses
-Don't need a lawyer
-Easy and you get to decide where/who goes to
-State doesn't get to decide
--Holographic will- handwritten
Hostile Witness
-Witness subject to cross-examination by party who called them to testify
-Can be treated aggressively
Hung Jury
Can't come to unanimous verdict
-Can keep people in a stationary state until retried or let go
Immunity
Grant by court against prosecution in return for evidence
-Common in drug cases
Inadmissible
-Evidence that cannot (under rule of evidence) be admitted in court
-If broken, can lead to an appeal
EXAMPLE: Admission/confession under duress
Indigent
Meeting certain standard of poverty
-Qualifies criminal defendant for rep by public defender
-Miranda Rights- "if you cannot afford an attorney, one will be appointed to you"- must prove indigent
-State can later come after you for legal fees if you lose state of indigence
Indictment
Grand juries
Information
Hearings
Injunctions
-Positive/Negative
-Court tells you you can/can't do something
-Criminal-restraining orders (TPR's TPO's)
-Civil- real estate- build and interfere with property rights of neighbors- seize and assist order
Interrogations
-Little questions (drafted by a lawyer) asked by one party to opposing party answered under oath
"Poor Man's Deposition"
Deposition
Under oath statement recorded outside of court to be used as evidence
-Used to impeach
-Expensive
Juvenile Court
-Cases concerning minors
-Common Law (1200s-OLD)- 7-13- presumption of innocence- if you can show intent and knowledge of wrong, can be held accountable
-14+ assumption of formed intent- tried as adult
-Judicial Waiver- judge thinks child acted as adult
-Legislative Waiver- blanket statements- "If child (16) commits murder, automatically tried as adult"
-Youthful offender- emotionally/intellectually not as old as our age anymore- court specifically established to hear cases concerning minors
Statute of Limitations
-X-period of time to put charges on someone
-Certain time allowed by statute in which litigation must be brought
-Evidence erodes- difficult to prove-safety-predators probably continued to commit crimes
Mala in se
-"Evil in itself"
-Universally regarded as criminal
-i.e. murder
Mala prohibita
-"Wrong be prohibited"
-Criminal law bc society defines it as such
-i.e. manufacturing alcohol during prohibition
Murder
Premeditated
-First Degree- Case Law- most serious, must have malice (intent) and premeditation- planning
-Second Degree- Case Law- heat of passion-"seeing red"-malice not premeditation-emotions got best of you-not thinking logically- one step back from gross negligence-you know they'll most likely die
-First Degree- GA Law- "Malice Murder"
-Second Degree- GA Law-"Voluntary Manslaughter"- lol GA, you're dumb "voluntary accident"
-Third Degree- GA-"Involuntary manslaughter"
-Fourth Degree-"Criminally negligent Manslaughter"
Commerce Clause
-Article 1, Section 8, Clause 3
-Hot topic- Fed Gov used it over 60+ years to make state social issues federal issues
-Social issues- 1960's
-Subject of intense Constitutional/political disagreement-extent to which federal legislation may govern economic activity connected to interstate commerce but occurring w/in state
-Thin stretch to apply issues to interstate commerce
-some argue that clause should be interpreted broadly to include wide range and SCOTUS has often agreed w/ this interpretation
Commerce Clause Cases
-Gibbons v. Ogden (1824)- Justice Marshall ruled that power to regulate IC also included power to regulate interstate navigation
-Swift v. United States (1905)- Court ruled that clause covered meat-packers- killing/packaging in one state, but some product will make it out of state-affects "currency of commerce"- not matter how marginal
-Conflict: SCOTUS v. Admin of FDR (1935-37)- Court struck down several of President's "New Deal"- FDR threatened to dilute court
-Heart of Atlanta Motel v. U.S. (1964)- Court ruled Congress could regulate business that served mostly interstate travelers- good intent- "mostly"-broad
-Katzenbach v. McClung (1964)- Court ruled gov. could regulate Ollie's BBQ- "sold food that had previously moved across state lines"-some meat was local, couldn't regulate just bc that- 50% of product out of state-couldn't almost any company be regulated then?
-Daniel v. Paul (1969)- Court ruled gov. could regulate 232 acre county rec facility bc 3/4 items sold at snack bar purchased outside of state
-Justice Rehnquist- Congress ONLY has power to regulate channels of commerce, instrumentality of commerce, and action
Bill of Rights
First 10 Amendments
Amendment I
Religion
-Establishment- no mandatory national religion-Religious start-Protestants-outcast-freedom of religion
-Free Exercise- freedom w/in limits to freely practice-unless you're breaking laws/infringing on rights of others
Speech
-All hinge on this
-Oral, written, communicated
-Individual
-Parameters- can't threaten President-jobs- military (most regulated)-hate speech-issues w/ health and safety
Press
-Like speech but not individual
Assembly
-Protests, political rallies, religion
Petition Gov. for redress grievances
-Right to complain to gov.
Amendment II
Regulated State Militia
-To revolt against army
-Today-not so common
-National Guard- but not just strictly state regulated-too many fed. ties-good coup necessary
Right of people to keep/bear arms
-"Shall not be infringed"
Amendment III
Cornerstone to right to privacy
Amendment IV
Right to be secure in persons, houses, papers, and effects, against unreasonable searches/seizures
-House/person most important
-Curtiledge- house, area directly around house, stuff inside-most protected part of fourth amendment-need to get warrant (except w/ warrant exception)
-"Unreasonable"- court not real comfortable defining reasonable-define as valid-check all boxes/have required paperwork
---Must have probable cause
--------Evidence established involvement in crim activity- 51%-more evident than not
--------Drugs- digital scales, baggies, smell of smoke, who comes and sees them, how many, how long they stay, license plates of people visiting, cash deposits/withdrawals
**Probable cause to search and arrest**
---Search Warrant
--------Exceptions-
----------------Consent-police ask to search car, say "yes"-waiving 4th Amendment right-waiver must be intelligent and voluntary- know what rights are being given up-Miranda Rights
----------------Exigent circumstances- emergency situations-bomb threat/fire/hostage
**Probable Cause established reason for warrant**
P.C., Oath, Search Description, People
-Search Warrant-statement of P.C.-oath signed by Police saying it's real evidence-charged criminally if obstruction of justice-planting evidence
-Description-what searching for/where, NO "elephant in a bread box", plain view legal if you're legal
-Person/things-arrest warrant- alias, description, probably cause- John Doe Warrant
Amendment V
Taking/condemning land
-New London-makes sense for hospitals/schools/roads-however just for tax purposes?
Capital
-Death penalty-1st degree and felony murder-must have Grand Jury-we don't have total incorporation on states-14th Amendment doesn't incorporate this part-not all states do Grand Jury-hybrid or prelim hearing-high profile-Grand jury over prelim hearing-DA appointed-Defense doesn't get to present anything-one-sided unlike prelim hearing higher indictment rate w/GJ than w/ P.H.-better for DA to keep everyone happy-300-500 cases-go ahead and send to trial
Times when you do process differently
-Military
Double Jeopardy Clause-
-Can't be tried for exactly the same crime in exactly the same jurisdiction twice-you can bump up to federal crime or have same scenario w/ slightly different crime
-Example: police brutality- same sovereignty cannot try twice
----Why not- waste of time-becomes level of harassment
"Witness against self"-
-CRIMINAL-you wouldn't wanna do that- risk of impeachment and you will be cross-examined
Due Process
-Anytime you have contact w/ anyone to do anything w/ criminal case, they'll act how they should procedurally
----Federal Case- 5th Amendment
----State Case- 14th Amendment
--------Denying lawyer- Fed.-5th and 6th Violation
Amendment VI
"Trial"
"Speedy and Public Trial"- continuous trial that's not in isolation- if definition meant "fast", would have all sorts of 6th Amendment violations
----Continuous-have asked for twenty five continuents
----"Public"-family court can be closed-personal business (financial matters, marital issues, children involved)-Juvenile court closed/sealed records-rehabilitation chance-if open, wouldn't have chance later in life
--------Criminal-judge has ability to close court-too controversial-example: Michael Jackson case-cameras allowed in-helped avoid media circus
----Sensitive cases-child testifying, molestation
"Impartial jury"-no internal bias and no making up mind before trying case-only focus on what they already believe about case
----"Jury of your peers" (case law granted)-"peer"-age (moral/ethics/shock value)-70 y.o. will respond differently than a 20 y.o.- Example: Peterson-accused of killing pregnant wife/cheater/longtime girlfriend-older jury=nightmare)-education level-DA wants most educated-will question prosecution's case- race- socio-economic level- gender-ethics-religion-politics-profession-background-hobbies
--------"Peer"-case law only cares about race&gender
--------"Notice Clause"-aware of charges-must know so that you can get a good lawyer&so you know how to fight it
--------Confrontation Clause-ability to cross examine testimony of person testifying against you
--------Subpoena- person or thing (sdt)- "bring the thing before the court"
--------Right to Attorney-begins w/ contact w/ police-right v. afford- must be serious criminal case-people will plea to something when innocent bc don't have a lawyer and are scared
Amendment VIII
"Cruel or Unusual Punishment"
-disproportional punishment-still a problem-3,000 years for four murders
-Graduation from nonviolent
"Excessive bail/fines"
-Protection at fed. level NOT state-monetary (ex. higher bail for pot than cocaine)-astronomical bail-in jail until tried-months in jail when innocent-bail by offense-ROR's-release on own recognizance
Plaintiff
-Civil-initiated case
-Federal-prosecution-state-responsibility of state to protect and serve-prevent future crimes
Appeal
Formal request for higher court review
Appellant
Requests appeal
Appellee
tried against
Appellate Courts
-Civil-no automatic right to have states highest court consider and appeal
----"States highest court"- not all have "Supreme Court"-level not name
-Criminal w/ death penalty-automatic right to appeal
Jurisdiction
Power of court to decide a controversy and to award relief
-Subject Matter-can hear case just bc the subject of case-drug cases-Supreme Court and Drug Court-concurrent jurisdiction-if D.C. backed up, case goes to S.C.
-In Rem-"over a thing"-authority over thing not person-house in divorce
In Personam-"over a person"-where you live-GA over US-crime/incident in other state-that state has jurisdiction
-Ancillary- bc case has claim that 2nd court needs to hear-moved to that court-example:pendant
-Diversity-claims over $75,000-other party in other place, case can rise to federal case-both sides have to be from diff. states
----"homecooking"- state will vote for their resident
-Exclusive-only court to have jurisdiction over case-cases b/w states-S.C.
-Federal Question- fed. courts over civil actions- constitution
-Limited-are some cases that must go to ____court b/c what it deals with- not concurrent-patents bc not everyone understands it
-Original-where the case starts, court has O.J. to try case-then can be appealed
-Quasi-In Rem-jurisdiction of court over a person which is based on person's interests in property-can't get jurisdiction over person through long arm-seize property owned in state-sale-default judgement-given the amount since the defendant didn't show up
Venue
Pretrial notion-before judge-to change venue-common w/ defense-due to media, tainted jury, small town-many times still w/in same judicial district (same judge)-"Motion for Venue"
-Divorce- county of fam residence
-Accident- county accident took place or Defendant resides
-Criminal-where crime occurred or where Defendant was
Civil Case Process
-File complaint-issued by P-cause of action-reason to sue
-Summons-invites D to respond-issued by clerk
-Answer-D's allegations of facts in response
----Process server-serves copy of summons and complaint
-Demurer-filed by D in response to summons-allegations don't equal crime, more civil action-bad paperwork
----State of lim-statute bars proceedings after specific period of time
--------Malpractice of lawyer-can sue
-Default judgement-court awarded based upon D's failure to answer complaint/appear at trial
Criminal Case Process
-Information-accusation of criminal offense issued following prelim hearing OR
-Grand Jury formed to investigate operations of gov. and issue indictments
----ADR (Alternative Dispute Resolution)-resolving disputes through means other than trial
--------mediation-2 parties, 1 neutral-MOU-both agree to understanding
--------Arbitration-private judge hears case, faster, usually cheaper,SEALED-awards not part of public record-non-disclosure form-buying new car
-Discovery-methods used under court order during period of time b/w commencement of lawsuit and date of trial used to learn facts about dispute
----Inoragatory-written questions directed towards party expected to reply (18-20 questions) UNDER OATH-used in case to clarify claims
----Brady Rule-prosecution has to expose 100% of evidence to D-evens the deck
----Deposition-court reporter, camera-interviewing witnesses-in PERSON-BODY LANGUAGE-reactions to others and their own words-can be used against the witness's credibility
THIS SET IS OFTEN IN FOLDERS WITH...