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LAW 2221 Bryant (Spring 2018) - Test 1
Terms in this set (140)
any system of regulations to govern the conduct of the people of an organization, community, society, or nation.
a statute, ordinance, or regulation enacted by the legislative branch of a government
Rule of law
an ideal that we strive to achieve, but sometimes fail to live up to. "a government of law, not men"
Article 39 of the Magna Carta
written to ensure that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away
judges are independent from political pressures and influences when they make their decisions
Case Gideon v. Wainwright
secured the right to counsel for indigent criminal defendants unable to afford legal assistance on their own
philosophy behind the creation and interpretation of law
Four types of jurisprudence
1. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship.
2. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.
3. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept.
4. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as "What is law?" and "How do judges (properly) decide cases?"
"Formalism, or conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute.
reason drawn from perceived universal and moral truths (example: constitution)
no higher laws than the written laws of a society (no connection between laws and morality)
Focuses on the historical understanding of what is right and wrong in a society (looks at it from a fixed point in time)
takes into account current social, economic and technological realities (uses law to change society)
basis for all other types of law (state and federal level)
Branches of law
carries out and enforces laws. It includes the President, executive departments, independent agencies, and other boards, commissions, and committees.
includes the federal courts and the organizations that support them
consists of Congress- the senate and the House of Representatives- and agencies that support congress
the national government has limited powers and coexists with state governments
comes from legislature (exists at Federal, state and local level)
process of how statutory laws are categorized (west law)
comes from rules created by executive branch agencies and administrative agencies
judicial interpretation of states/ judges made law (came from England)
"let the decision stand"
judges are obligated to follow precedent within their jurisdictions
a decision that furnished an example/authority for deciding subsequent cases involving identical or similar legal principles/facts
Uniform model laws
approach seeks adoption of identical or similar laws by all the states
Primary sources of law
1. Constitutional Law
2. Statutory Law
3. Administrative Law
4. Common Law/ Case Law
Secondary sources of law
Examples: Uniform Model Laws, Restatements of laws
Restatements of the law
secondary sources that seek to "restate" the legal rules that constitute the common law in a particular area.
[written by the American Law Institute (ALI)]
wrongs committed against the public as whole
(can have a case with both a criminal AND civil case)
rights and duties that exist between persons, government, and relief available when rights are violated
provides people with rights and duties. defines criminal activity
(have substantive laws that are civil and criminal)
sets out rules for how to pursue substantive rights
(published rules for civil and criminal claims)
Remedy at law
requires wrongdoer to act or not act in a certain way)
laws created by government
private parties determine rights (contract law basically)
lawyers/attorneys that work for a company
judges tells them to act in certain way
judges tells them to stop an action
judge cancels contract between parties
4 components to attaining legal advice
How law can be approached
Purpose for Constitution
1. provides structure for government
2. grants powers to government
3. protections for US citizens from wrongful government action
Constitution has 3 main functions
1. Provides a structure for government
2. Grants powers to the government
3. Provides protections for U.S. citizens from wrongful government action (Bill of Rights)
when state and federal law conflict, federal law displaces, or preempts, state law due to the Supremacy Clause of the Constitution
powers granted in the Constitution to the 3 branches
authority of states to create and enforce laws protecting the health, safety and welfare of its citizens
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.
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.
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 offence 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.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
legal authority for a court to decide a particular case
Congress has power under Article I, Section 8 to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare; Congress can collect taxes on incomes that are derived from any source.
Congress is granted the power to lay and collect taxes in order "to pay the Debts and provide for the common Defense and General Welfare of the United States." As required by United States v. Butler, 297 U.S. 1 (1936), Congress must exercise its power to tax and spend for the "general welfare". Congress is able to place a requirement on states that compliance with specified conditions must take place before the state will be considered to meet the qualification requirement for federal funds.
Necessary and Proper Clause
Under Article I, Section 8 of the Constitution, Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof".
idea that actions of executive and legislative branches pf government are subject to review and possible invalidation by judicial (Marbury v. Madison 1803)
Standards of Review
sense through which court reviews a case
(rational basis, intermediate scrutiny, strict scrutiny)
rationally related to a legit government interest
lowest level of scrutiny
must further an important government interest by means that are substantially
(genre issue and commercial speech)
must have passed law to further a coming governmental interest and must have narrowly tailored the law to achieve that interest
[suspect classes(race, religion, and ethnic origin) and fundamental rights]
Channels of interstate; viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States
Dormant Commerce Clause
can pass laws but not if it discriminates against or heavily burdens; implicit against states passing legislation that discriminates against or excessively burdens interstate commerce.
(not separate clause but the doctrine)
party alleging that a violation has occurred
2 Levels of courts
1. Trail Courts
2. Appellate Courts
Decide issue of fact (don't create precedent or common law)
only binding on parties to the case
can accept and decide many different types of cases
can hear and decide cases ONLY on a particular subject or within particular geographic boundary
Decides issues of law (reviews trail courts decision)
NO NEW EVIDENCE
How appellate courts assess trial courts' decisions
listening to oral arguments (sometimes)
Number of court systems in USA
52 (1 per state, 1 in dc, 1 Federal)
decides matters from state law
majority of cases are filed at state level
How do state judges become judges?
Either elected or appointed or combination of both.
decide issues of federal law (and sometimes state law)
US District Courts
trail courts of federal system
(where most cases originate)
US Circuit Court of Appeals
Federal Intermediate Appellete Courts
Precedent only applies to circuit, not outside
similar cases with different rulings due to different circuit courts deciding
Supreme Court of the United States
final ruling over all other courts
has both original and appellate jurisdiction
all judges are appointed by President
State court- subject matter jurisdiction
have SMJ over all types of disputes from state statutes, state common law, state admin. laws, state constitutional laws, some federal laws
issues from out of US Constitution, federal statutes or federal common law
Diversity of Citizenship
plantiff and defendant are for 2 different states AND have the amount of controversy exceeds $75,000. Issues of State law (but $$)
For Federal case it must be 1 of 3 things...
1. Federal Question
2. USA is party to the case
3. Diversity of Citizenship
more than 1 court/court system can have original jurisdiction
power of court to hear for the 1st time
only one court/court system has the authority to hear the case
Choice of Forum (forum shopping)
if concurrent jurisdiction is present you get forum shopping
Things to consider for choice of forum
appropriate location for a trial
geographic location of court (example: District court of PIKE COUNTY)
before a party can bring a lawsuit, it must have been wronged (no hypothetical cases)
based on property ownership
leaving benefits of home state behind
clause that gives the right to a speedy and fair trial
activities in state give rise to the claim
consider: purposeful availment, state interests, convenience
(even if actions giving rise to car weren't in the state. someone involved has to be from there)
catchall where a court decides that you've had enough interaction with a state to justify having (personal) jurisdiction over you.
(focused on defendant)
presence in the state and being served while there
residence in a state
you can consent to court having jurisdiction
long arm statute
provides justification for specific authority over parties involved
Can exercise Long arm statutes when
transactions accure in state
forgo benefits of home state
enters into contract in state
owns property in state
Forum Selection Clause
A contractual agreement that designates the court and location where the parties would like to have their legal dispute decided
(provides personal jurisdiction and creates a venue)
equal protection clause issue
What classification does a government action create?
What level of scrutiny should be applied to this classification?
Does this particular government action meet that level of scrutiny?
independent courts to be protected from unreasonable searches, rigged trials, and other examples of overreaching government power
To guarantee rights like freedom of speech and freedom of worship, and make the rule of law a reality, the founders knew that judges had to be servants of law and the Constitution, not the political bosses, not the media, and not special interest groups.
based on the claim that procedure was not followed or there was an unfair trial
the authority appellate courts have to decide which appeals they will consider from among the cases submitted to them
Writ of Certiorari
orders a lower court to deliver its record in a case so that the higher court may review it
(must be filed to request review)
Attorney's who work for a company and are part of the midlevel management team are specifically to as ___________ counsel.
Legal positivists believe that agreed-upon laws should be uniformly and strictly enforced and may be changed only be the government.
Law today is crucial to business by creating some degree of reliability to be used in business planning and commercial transactions.
A wrongful act may violate civil law or criminal law but cannon violate both simultaneously.
when cooperations fund political speech or engage in corporate advocacy of a particular candidate/ political issue
The state of Delaware legislature has passed a new law banning cell phone use while driving a motor vehicle within the state. This law would be defined as:
Which of the following is not available in a court of equity?
An order for the payment of money damages for a breach of contract
Once stare decisis and case precedent is established:
It may be disregarded and overturned by a court if it deems such action appropriate
A state statute mandates that the statute of limitations for a negligence lawsuit is two years and the plaintiff is barred from filing the suit if he or she files after that time. This statute is an example of a:
The U.S. system of common law:
Is derived from the British common law
New York has passed a law banning smoking of cigarettes and cigars in public bars and restaurants. This law would defined as:
Powers granted in the Constitution to the three braches of the federal government are known as ________ powers
The inherent right of the federal government to protect its citizenry's health safety, and welfare is referred to as the federal government's police.
Amendments to the Constitution function as a protection of the citizenry from unlawful or repressive acts of the government.
Federal legislation or regulation must be authorized by a specific enumerated power in the Constitution.
Acts of privately owned business
Generally constitutional protections do not apply to:
Rational basis scrutiny
Assume that the state of Georgia has just raised the fee for registration of motor vehicles $5 per year. If challenged this new statute would be reviewed using:
Both commercial speech and corporate political speech are subject to intermediate scrutiny.
Enumerated powers are those rights and powers granted in the Constitution to the individual states.
States the broad objectives of the Constitution
The preamble of the Constitution:
When a Mississippi defendant does business of extensively advertises in Louisiana the defendant subjects himself or herself to personal jurisdiction in Louisiana based on the concept of _______
The Bill of Rights
Protections for the citizenry from unlawful or reprehensive acts by the government are contained primarily in:
A state family court that hears only divorce and child-related matters would be said to have _________ jurisdiction.
The U.S. Constitution requires that all state court judges be appointed by the state's governor subject to the approval of the state's legislature.
A court may hear a case if it has jurisdiction over either the subject matter of the dispute or the parties in the case.
If a state appellate court renders a decision on a new issue that state decision will become precedent for any federal court decisions when the federal court is located within the state and the decided issue is one of state law.
Presentation of testimony and new evidence
Which of the following does not occur in appellate court trials?
The U.S. District Court
Which of the following courts renders decisions binding only on the parties involved in the dispute?
An Oregon corporation and a New Hampshire corporation have entered into a contract and agreed that any legal disputes will be conducted using New Hampshire law. This agreement is called a:
Forum selection clause
Which of the following involved the analysis of personal jurisdiction?
Application of a long-arm statute
Which of the following situations will create diversity jurisdiction?
April, a Delaware resident, sues Mike, a New York resident driving in Delaware, for $80,000 when he rear-ends her while she's riding her bicycle and severely injures her.
supreme law of the land
Equal Protection Clause
The clause provides that no state shall deny to any person within its jurisdiction "the equal protection of the laws"
how business communicate with the public
intermediate strict review
recognized corporations as "fictional" persons
Roles of Presidency that effect business
carries out laws made by congress
act as commander and chief of armed forces
enter into treaties and carry out foreign policy
appoint federal officers and judges
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