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Law3000 Exam 1
Terms in this set (32)
accumulation of cases interpreting/refining legal concepts
Henry de Bracton
summarizes legal cases since 1066 helping establish doctrine of the importance of precedent
(Latin for "let the decision stand"); principle defined: precedent is binding on later cases.
Thomas Aquinas, law must have moral basis to be enforceable
law is that which the sovereign says it is, may not have moral reference
often the background, even subconscious views of judges will determine how written law is interpreted and therefore the case outcome
Keuhn v Pub Zone, Foreseeability is key to the holding
Among the Protected Rights is 1st amendment
"Congress shall make no law respecting an establishment of religion (no state religion), or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The 5 basic freedoms: religion, speech, press, assembly and redress of grievances.
Kant's Categorical Imperative
Immanuel Kant, an 18th Century ethicist and philosopher. You should not do something unless you would be willing for everyone else to do it too.
Sarbanes-Oxley Act (SOX)
is the legislative response to the Enron fraud. Among other things it requires the CEO to sign off on financial statements, Audit Committees on the Board, and separate audit for corporate operations as well as financials. Would this have helped prevent the losses to employees and shareholders as a result of the Enron debacle we saw unfold in the video, "Smartest Guys in the Room"?
Distinguish between Litigation and Alternative Dispute Resolution
Litigation is process whereby trial courts hear evidence and apply the law. ADR refers to other informal processes used to solve disputes, such as, negotiation, mediation with professional/neutral mediators, arbitration. Arbitration can be made mandatory if parties agree for example in contract between two businesses. Often time appears as part of the consumer bargain as well
allows both sides in litigation to discover the relative strengths and weaknesses of each other's case through, for example, interrogatories (questions) asked of opposing side, depositions (testimony taken under oath) of opposing side's witnesses for example, requests for production of documents (email logs for example)
o Purpose of discovery is to encourage settlement and avoid lengthy trials
o Very high % of cases settle after discovery
State trial courts
Courts of Common Pleas (by county, e.g., Montgomery County Court of Common Pleas); then to Ohio Courts of Appeal; Ohio Supreme Court hearing not a matter of right.
Federal trial courts=Federal District Courts
there are 2 federal districts in Ohio; we are in the southern district
Appeals are taken by the U.S. Courts of Appeal, courts at this level (We are in the 6th Circuit along with TN, KY and MI.).
U.S. Supreme Court
hears approximately 100 cases per year, through grants of writs of certiorari ("cert").
2 Federal Court Jurisdiction Rules
Involves a Federal Question, that is, a federal statute, the Constitution, or treaty. OR (b) Involves Diversity Jurisdiction, that is, even if no federal question, when opposing parties are from different states AND amount in dispute is greater than $75K, Plaintiff MAY file in federal court. See p 51.
Remember that Appeals Courts..
determine whether the law and procedure applied by the trial court has been done fairly. They will not hear testimony; there are no juries, but rather panels of judges who read the briefs (strongest written arguments to be made) and may hear oral argument by lawyers.
may be certified by a court allowing many similarly harmed plaintiffs to bring one action to determine liability. Theory of "judicial economy" and also to bring justice when there are numerous smaller dollar amount complaints that a defendant may be banking an individual would not file on. Recent change has forced most class actions into federal court.
remember the jury decides issues of fact (e.g., who is lying, who is telling the truth) and the judge instructs the jury as to what law and what presumptions apply in rendering its decision.
brought by plaintiff.
General rule at common law is that person is under no legal obligation to render assistance to one in danger, unless that person created the harm.
Statutes limit the liability of amateurs rushing into help. Note: these statutes don't require a person to assist, but protect them from liability for all but gross negligence (e.g., start to rescue, pre-empting others and then not following through)
is a series of compromises about the power of government.
Separation of Powers among three co-equal branches: executive, legislative and judicial. Always dynamic tension among the three. Some presidential administrations have greatly expanded the power of the presidency.
Marbury v Madison
1803, established the power of Judicial Review, that is, the power of the federal courts to declare a statute or governmental action unconstitutional.
power to regulate any activities with "Substantial Effect" on Interstate Commerce. Remember the original articles of confederation did not grant the power to regulate commerce.
power to pre-empt the states from passing legislation either in conflict with federal congress, or in area that Congress has expressly determined is a matter of national interest. For example, immigration policy, treaties with foreign nations
Federal Pre-emption doctrine
can be applied to make state regulations void.
o (c) power to declare war.
o (d) power to tax
(a) commander in chief, (b) conduct foreign policy, (c) appoint federal judges and certain agency heads.
Granholm v Heald
US Supreme Ct, 2005. Split in circuits over Commerce Clause. 6th Circuit (ours) and 2nd Circuit. (Out of state wineries case) What was the holding? State statutes that restrict interstate commerce found unconstitutional. Majority Opinion by Anthony Kennedy.
Free speech includes
symbolic acts such as flag burning, commercial speech (advertising) that is not false, misleading.
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