LAW 231 Class Notes/Final Study Guide
LAW 231 Class Notes/Final Study Guide BLAW 231
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LAW 231 8/19/15 Chapter 1 I. What is Law? A. Function – to provide stability, predictability, and continuity so that people can know how to order their affairs. B. Definition – enforceable rules governing relationships among individuals and between individuals and their society. C. Law & Business – laws and government regulations affect almost all business activities – from hiring & firing decisions to workplace safety, the manufacturing and marketing of products, business financing, and more. To make good decisions, a basic knowledge of the laws and regulations governing these activities is beneficial – it is not essential. D. Law & Ethics – example: car dealership scenario | example: Angelina Jolie ** Remember: an action can be illegal and ethical! II. Schools of Jurisprudence – legal philosophy A. Natural Law School – the basic principles of life ex: steal, kill | belief that there are moral and ethical principles B. Positivist School “National Law” – “Positive Law” – written law that only applies to the citizens of that school. Positivist thinks: That there’s no higher law. “The law is the law and it must be obeyed.” They don’t believe in the natural law. They are not flexible and there’s no room for mercy; but very orderly, the law is the law! C. Historical School—looks to the past to determine what the present law should be They would say “we’re going to do it this way because we’ve always done it this way.” The law will change very slowly, if it changes at all… Inflexibility – they don’t adapt to changes in society Positivist v. Historical: Historical looks into the history of the law, while Positivists look to the past D. Legal Realism School – rebellion against Historical School “When you’re applying the law, you’ve gotta take into account the circumstances of the case.” They influenced Sociological School E. Sociological School – used the law as a tool for promoting social justice. They’ll change the law in order to promote social justice… III. Source of American Law A. Constitutional –document that distributes power among the branches of gov’t. 1.U.S. – supreme law of the land 2.50 states – each state has its own constitution | state laws vary from state to state B. Statutory 1.Federal statutes – comes out of Congress, Senate, etc. in D.C. Anything that violates the constitution of federal laws is “invalid.” 2.State statutes – uniform laws – UCC – uniform commercial code: standardized rules of the conduct of commercial transactions Assists people involved w/ commercial transactions Sale of goods, bank deposits 3.City Ordinances – local gov’t bodies ex: Springfield, KC, etc… C. Administrative Law – administrative agency: gov’t agency established to perform a similar function Example: EPA – environmental protection agency, regulations on protecting our environment Example: executive orders D. Case Law & Common Law LAW231 8/26/15 Chapter 1 cont’d... IV. Common Law Tradition A. Courts of Law & Common Law – consists of statements of law made by judges. Is not set in stone; can be changed. Can be changed by federal/state statute, administrative rule, or later court decisions. Ex) in Missouri, the common law dealing with marriage was changed by statute. We inherited this system from England. 1. “Legal Remedy” => DAMAGES = $$$ Damages – money paid to the party whose legal party has been injured “Remedy”—the legal means to recover the right B. Courts of Equity 1. Equitable Remedies a.Specific Performance – “you want a judge to order someone to perform an agreement as promised.” ex) in 1970’s there was a television producer, Aaron Spelling, with a daughter named Tori Spelling. He came up with an idea for a tv series, Charlie’s Angels. He was going to star 3 actresses. Erin Spellings had the star girl, Farrah Faucet, under a 5-year contract. She stopped showing up to work. He sued her and asked the court for specific performance. b.Injunction – “ you want the judge to order someone to STOP or cease engaging in a certain activity.” ex) You’re married with a happy home and a club starts up next door. This is a disturbance. You would sue them next door and ask the court for an equitable remedy of injunction. c.Rescission – the cancellation of a contractual obligation. “You are asking the court to cancel a ROTTEN contract... make it like it never happened.” ex) In 1980’s when they had the Branson Boon. There were tons of people that got tricked into signing these time share contracts. They asked the court for rescission. C. Doctrine of Stare Decision 1. Stare Decisis & the Common Law – a judge basis their decisions in a case on past cases. “Stare Decisis” – to stand on decided cases; to follow controlling precedent. Ex) judges in Missouri are obligated to follow the precedents of higher courts. 2. Legal Precedents – decisions made in prior cases with similar facts a.Controlling precedent – from a higher court, in your same jurisdiction. You must apply the law in the same way and get the same outcome. b. Persuasive precedent – a court doesn’t have to follow the higher courts if they are in a different state. Ex) a judge in NY doesn’t have to follow the prior cases and decisions of a higher court in Missouri. 3. Departures from precedent – when a court throws out a prior case and changes the law a.Brown v. Board of Education of Topeka – the US Supreme Court held that separate but equal had no way with education. The Court had to overrule and overturn a prior case – Plessy v. Ferguson. They departed from precedent. 4. No precedent – “A Case of First Impression” – new technology can create this. ex) internet...there was no internet back in England when the Common Law was developed. The court considers fairness, social value, and public policy. MO MO Supreme Court ---> MO Court Appeals --> Trial Court V. Classifications of Law A. Substantive/Procedural Substantive – all the laws that describe and create our legal rights and obligations; the laws that tell us what we can and cannot do. ex) can’t steal, kill, speed in your car Procedural – all the laws that establish the methods of enforcing the law; lawsuit and court grew procedures. This is how to take your lawsuit through the court process. Ex) if you get sued, you have 30 days to file your answer. B. Civil/Criminal Civil – concerned with rights and duties that exist between persons Criminal – concerned with offenses committed against society as a whole There are times when a person can commit a felony and crime at the same time... In a criminal case, the plaintiff is the state. All decisions are made by the prosecutor, not the plaintiff in the civil case. VI. How to Read Case Law A. Case title: _______ v. ________ - Name of the parties to the lawsuit. The “v”=versus, which means “against.” B. Parties: Plaintiff v. Defendant Defendant (triangle used) Plaintiff <--- this symbol is used Appellant v. Appellee After the case has gone to trial, people can appeal. There is a panel of judges (7) at the appellant level, which will hear the appeals and vote on who wins; majority rules. When all 7 judges agree, then appellant wins & a unanimous opinion is written on why they made that decision. C. Decisions & Opinion 1. Unanimous – When all (7) judges agrees, the appellant wins and a unanimous opinion is written, which will be the law. 2. Majority – when the judges don’t all agree, the majority of the judges pick the winner and they will write an opinion that gets published to the law books. 3. Concurring – when one of the judges in the majority agrees with the outcome but for different reasons. That specific judge will write a concurring opinion. 4. Dissent – written by someone on the losing side, who doesn’t agree with the outcome of the majority judges. They will write a dissenting opinion, but it’s not law. If it’s a “hot button” issue, they may return to the issue in the future. LAW231 9/2/15 Today we had a small worksheet to finish and we were able to leave class. Teacher was not in attendance. LAW231 9/9/15 Reminders: Exam #1 is Wednesday, September 23 , covering chapter 1 & 2. Her tests are 50 questions, half true/false, half multiple choice. Extra Credit Events – 5 points each There will be 2 extra credit events next week, Tuesday – 7pm @ a library center in Springfield & Thursday –7 pm in PSU. Chapter 2 I. Judiciary Role in US Government A. Interpret & Apply the Law – “what does this law mean and now let’s apply it” B. Judicial Review – decides whether the law or the actions of the other two branches: executive and legislative – of government are constitutional. 1. Marbury v. Madison – it’s the courts that get to say that these two branches of government are constitutional. ** Visual drawn on board ** II. Basic Judicial Requirements A. Jurisdiction – the power to hear and decide a case: over persons or property. In Latin means “The power to speak the law.” “Who or what does this court have power over?” 1. over persons “inpersonam” (defendant – person being sued) a. Longarm Statute—a court can exercise personal jurisdiction over out of state defendants, based on their activities in the state. It’s gotta be shown that the defendants had limited...? b. Minimum Contacts – when someone breaches the contract. The court still has personal jurisdiction over you. c. Corporations – a person who can sue and be sued. They are incorporated in one state, where they go to file the articles of incorporations. Wal-Mart is incorporated in Arkansas, but does business in the 50 states... Cases of Minimum Contact for Corporations 1) If a corporation does business in a state. 2) If they advertise or sell their goods in a state. 3) If the corporation places their good in the stream of commerce with the intent that they will be sold in that state. 2. over property “inrem”—jurisdiction over the property that is the subject of the lawsuit. 3. Subject Matter Jurisdiction – limitation over the types of cases that a course can hear. “What kind of cases does the court have the power to hear?” a. General v. Limited General – county courts, hear all kinds of stuff. They hear all kinds of cases Limited – can only hear a limited kind of case. Example: Probate court – is a state court of limited jurisdiction – probate...what happens to dead people’s money and property when they die. Example: Bankruptcy court – limited to hearing only bankruptcy cases 4. Federal Jurisdiction [WILL BE ON FINAL] – limited by the constitution. They will only hear questions that involve Federal Question and Diversity of Citizenship: a. Federal Question – involves anything from the U.S. Constitution, Treaty, Federal Statute, and if the U.S. is a party to the lawsuit 1. U.S. Constitution 2. Treaty 3. Federal Statute 4. U.S. is party to the lawsuit b. Diversity of Citizenship – you can bring it in federal court, even though it doesn’t have a federal question. Requirements = 1. TT & are from different states – plaintiff and defendant must be from different states. 2. > $75,000 – the dollar amount must be greater than $75,000. Example Case: NA from MO, KJ from California and it’s a $76,000 case... yes, you can sue under diversity of citizenship. 5. Concurrent v. Exclusive Jurisdiction Concurrent Jurisdiction – when a case can be filed in both federal and state courts Exclusive Jurisdiction – when a case can be filed in just one or the other court 6. Jurisdiction in Cyberspace – jurisdiction in cases that involve the internet. Significant interactivity over internet passive Ad on internet Passive Ad: an ad that’s coming out of some other place = NO JURISDICTION Significant Interactivity Over Internet =min.contacts =YES, JURISDICTION B. Venue – the most appropriate location in a trial. The court that tries a case should be in the geographical area where the incident occurred or where the parties reside. C. Standing – before a person can bring a lawsuit in a court, the party must have a “standing”: a legally and tangible protected interest at stake in the litigation. 1.Justiciable Controversy -- LAW231 9/16/15 Chapter 2 Wrap-Up... III. State & Federal Court Systems – In Missouri, we call our state trial courts “circuit courts.” Trial court is the first court in which the case is heard. At the trial court, the parties argue about the facts. A. Question of Fact v. Question of Law Questions of Fact – determined at the trial court level. Example questions of fact --> “Did he kill her, rape her, or strangle her?” Questions of Law – have to do with the interpretation of the law; dealt with in Appellate courts (courts of appeal). If there is a federal question at appellant court, then the party has the right to appeal and take the case up in front of the U.S. Supreme Court. The decision of the U.S. Court of Appeals is final in most cases. You have no absolute guarantee that your case will be heard in the U.S. Supreme Court. B. U.S. Supreme Court – the highest court 1.Writ of Certiorari – a person must ask for a “writ of certiorari” to have your case sent to the Supreme Court. They can deny the petition for writ of certiorari and they almost always say “no.” The court only hears fewer than 100 cases. 2.Rule of 4 – “At least 4 of the justices of the supreme Court must think that the case should be heard.” IV. A Case in Court A. Pretrial – the pretrial litigation process involves the filing of the pleadings – gathering of evidence (called discovery). 1.Pleadings – consists of the complaint and the answer; informs the party of what the issues are in the lawsuit. The pleadings state what the claims are. a. Complaint --> -- when the lawyer files the complaint in a proper venue. Remember, Proper venue is the most appropriate location for the trial: where the incident occurred or where the parties reside. Every complaint must have: (p.44 in textbook) 1. A statement of fact showing that the court has subject-matter and personal jurisdiction 2. A statement of fact showing the plaintiff is entitled to a remedy 3. A statement of the remedy the plaintiff’s seeking 1. Service of process – the process of notifying the defendant of the lawsuit against him. You must deliver a copy of the complaint to the defendant along with the summons. He must file an answer to the court in a certain period of time. If the defendant doesn’t file an answer, the plaintiff wins. Summons – a notice requiring the defendant to appear in court and answer the complaint. b. Answer --> 1. Affirmative defense – When the defendant raises new facts to show that he should not be held liable for the damages. 2. Counterclaim – when the defendant turns the tables and claims that the accident was the plaintiff’s fault & the plaintiff owes the defendant money. The plaintiff must reply to it and file a reply either admitting or denying. a.Reply --> 2.Discovery –the process of obtaining information from the opposing party or from witnesses prior to trial. a. Depositions – sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official. The person deposed gives testimony and answers questions asked by the attorneys from both sides. The questions and answers are recorded, sworn to, and signed. Depositions also give attorneys the opportunity to ask immediate follow-up questions and to evaluate how their witnesses will conduct themselves at trial. In addition, depositions can be employed in court to impeach – challenge the credibility of – a party or witness who changes his or her testimony at the trial. A deposition can also be used as testimony if the witness is not available at trial. b. Interrogations – written questions for which written answers are prepared and then signed under oath. The main difference between interrogatories and written depositions is that interrogatories are directed to a party to the lawsuit (plaintiff or defendant), not to a witness. The party usually has 30 days to prepare answers. 3. Pretrial Conference – after discovery has taken place and before the trial begins, the attorneys may meet with the trial judge in a pretrial conference. The purpose is to explore the possibility of a settlement without trial and if this isn’t possible, to identify the matters in dispute and to plan the course of the trial. B. Juries 1. Right to Jury Trial: 6 & 7 Amendment | 6 = criminal & 7 = moneyth The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial for cases at law in federal courts when the amount in controversy exceeds $20. 2. Jury Selection a. Voir Dire – “on your oath to tell the truth.” The jury selection process is known as “voir dire.” b. Challenges – during voir dire, a party may challenge a certain number of prospective jurors “peremptorily” – 1. For cause—when someone provides a reason why an individual should not be sworn in as a juror. If the judge grants the challenge, the individual is asked to step down. 2. Peremptory – when an individual is not to be sworn in as a juror without providing any reason C. Trial 1. Opening Statement – setting forth the facts that they expect to prove during the trial; a speech by the lawyers from both sides where they state what the evidence will show and what’s going to happen in the trial. Plaintiff goes first because plaintiff has the burden of proof. 2.Presentation of Evidence a. Burden of proof – the plaintiff has this; they have the job of proving that their claims are true. Civil Case – in a civil case, the burden of proof is by the preponderance of the evidence that their claims are true. Criminal Case – in a criminal case, the burden of proof must be proved “beyond a reasonable doubt.” b. Rules of Evidence- the evidence must be admissible, it must be relevant. c. Examination of Witnesses 1. Direct v. Cross Examination Direct Examination: when a witness is questioned by the attorney for their own side. The attorney is usually friendly. Cross Examination: when a witness is questioned by the attorney for the other side. The goal is to trip the witness up, so the attorney is not very nice. 3. Closing Argument – after both sides have rested their cases, each attorney presents a closing argument. Both attorneys get to make a persuasive speech to the jury, where they summarize the evidence, most effective to their side convincing the jury that their side should win. 4. Jury Instructions –tells the jury all the law that applies to the case. The law is contained in the jury instructions. 5. Verdict – once the jury has reached a decision, it issues a verdict; specifies the jury’s factual findings. Either guilty or not guilty. D. Appeal – 90% of the time, the trial court’s decision stands. You must file a notice of appeal and after all the paperwork is given, then the appellance attorney must file a brief – a formal legal document outlining the facts and issues of the case, the judge’s rulings or jury’s findings that should be reversed or modified, the applicable law, and arguments. After oral argument, the court will take the case into advisement. The appellate court will get together and vote...majority rules. The majority will be the winners. They will write a written opinion, explaining their findings which will be published in the law books. If the person still isn’t happy then they can appeal it and do it all over again. LAW 231 9/30/15 Chapter 3 – Alternative Dispute Resolution I. ADR A. Defined – any procedure or device for resolving disputes outside of the courts. There is no public record. Only the parties of ADR know what’s going on with that dispute. B. Advantages – cheaper & faster than traditional litigation. It’s more private than traditional litigation because it doesn’t take place in a court of law. ADR Methods – These methods differ by the degree of formality and what the 3 party has the power to do. ADR Methods: rd II. Negotiation (No 3 party) – parties come together informally. Sometimes represented by attorneys or they represent themselves. They come together and try to settle their disputes without a third party. rd III. Mediation (3 Party Mediatrd) – one of the oldest forms of ADR. The parties come together informally, but with a 3 party mediator, who talks through the issues and proposes solutions (they cannot make a decision resolving the matter). The mediator is not an advocate of one side or the other; they are the middle man. rd rd IV. Arbitration (3 Party Arbitrator) – the settling of a dispute, in which an arbitrator (neutral 3 party) hears a dispute and imposes a resolution on the parties. A. People arbitrate because they agree to! Contract! B. Arbitration Process 1. Submission – a piece of paper, that identifies the parties to the dispute, stating what the controversy is about and how much money is involved. 2. The Hearing – both sides get to tell their sides of the story. 3. Award – the arbitrator’s decision in writing. Findings of fact and conclusions of law, explaining what they decided and why. C. FAA of 1925 – Federal Arbitration Act of 1925 1. Compel arbitration & confirm award – the parties have the right to compel arbitration and confirm the arbitration’s award. D. Enforcement of Agreement to Arbitrate – the court looks at the arbitration agreement and decides whether the parties agreed to arbitration. The arbitration agreement has to be fair. 1. Hooters v. Phillips – In Myrtle Beach, Annette Phillips worked at Hooter’s. They wanted all of their employees to sign an Enforcement of Agreement to Arbitrate. They then said if you don’t sign this agreement, then you’ll never get a raise or promotion. Later on, Annette was being sexually harassed at work. She went to talk to her manager and he said to let it go. Annette quit and she filed her sexual harassment lawsuit in court. Hooter’s brought their arbitration agreement. The court didn’t like that they forced their employee’s to sign it if they wanted a raise. It also stated that they could make changes without letting the employees know. It also said the list of arbitrators would be submitted by Hooter’s. The court saw it as unfair and incomparable, so they didn’t enforce it. Annette Phillips got to sue Hooter’s. E. Appeal of Arbitration award 1. Won’t set aside for mistake of fact or law! – You can appeal an arbitration agreement to a court, but it is very limited! The court will not set aside an arbitrator’s award for the mistake of fact or law. 2. An arbitrator’s award will only be set aside for misconduct, corruption, or abuse of power V. International Dispute Resolution A. Forum Selection Clause – determines what forum (which country’s court) will litigate that dispute. B. Arbitration clauses – International contracts that require a neutral 3 party (arbitrator) to decide any contract disputes. Chapter 4 – Ethics I. Business Ethics – has to do with how businesspersons apply moral and ethical principles in making their decisions; looks at the decisions businesses make or have to make and whether those decisions are right or wrong. A. Importance of Ethical Leadership – a rotten business will go down and when it goes down it affects everyone, community & society as well. It will cost in the long-run, when a company does unethical things to maximize their profits. The employees will always follow the example that you have set as management. B. Sarbannes-Oxley Act – WILL BE ON FINAL! (not in textbook) – Federal statute that applies to publicly traded companies. Requires those companies to have internal anti- fraud checks. It makes those companies set up confidential reporting systems, so that employees can report unethical activity unanimously. II. Approaches to Ethical Reasoning – the process by which a person looks at a situation according to their moral or ethical beliefs. A. Duty-based – comes from revealed truths of religion or philosophy 1. Religious – your religion gives you a rule book, which states which certain acts are prohibited. Those acts are unethical. Religious prohibitions are absolute. Ex: the 10 commandments are absolute prohibitions. “Thou shall not kill, steal, etc.” 2.Kantian --> categorical imperative—German philosopher, Immanuel Kant identified some general guiding principles for moral behavior based on what he thought to be the fundamental nature of human beings; Rules based on the fundamental nature of human beings. Kant said: “People have to be respected because we can ration.” “You can’t objectify people.” 3.Principle of Rights – the key factor in determining whether a business decision is ethical is how that decision affects the rights of others. B. Outcome Based 1.Utilitarianism – an action ethical when among the people it affects, it creates the greatest amount of good for the greatest number of people. “ The action that creates the greatest amount of good for the greatest number of people” – is the right thing to do! III. Business Ethics & the Law A. Moral Minimum – legal compliance with the law B. Law v. Ethics – There are actions that are legal but unethical. your ethics will require more from you than the law. IV. Global Ethics A. Global issues overseas – U.S. firms are marketing goods that are manufactured overseas. What about the foreigners that made the goods? B. Foreign Corrupt Practices Act – Will be on FINAL EXAM! – This prohibits U.S. business people from bribing foreign officials to secure advantageous contracts! The penalties for violating the FCPA are both: jail & $ fines Grease bribes – under the FCPA, business people are permitted for bribes up to $500 10/7/15 – today all we had to do was complete a worksheet. Teacher absent. LAW231 10/14/15 Reminders: Wednesday, October 28 is Exam #2, which will cover Chapter(s) 3, 4, 5, & 7! We will cover Chapter 7 next class! Chapter 5 – Constitutional Law I. Constitutional Form of Government A. Articles of Confederation – the first document created after the Revolutionary B. U.S. Constitution – 1. Federal Form of Government – the states and the central government share sovereign power. It’s a partnership and neither one is superior to the other, except in the particular area of authority. There are some powers that only the federal government can do. 2.Federal States 1. Commerce 2. ---------- 3. --------- C. Commerce Clause: Federal power – regulation of commerce is a federal government job, NOT a state job. “Congress gets to regulate commerce with foreign nations, among states, and Indian tribes.” Interstate commerce: crosses state lines; takes place in two or more states. Intrastate commerce: commerce that only exists within a single place in a state. If the intrastate commerce affects interstate commerce, then the federal government can regulate it. 1. Heart of Atlanta Hotel v. US – a case in 1964 that involved a single hotel in Atlanta, GA. Their policy was that no colored people could stay at the hotel. The hotel sued the U.S. because they are just one hotel in intrastate. There’s a federal statute that states that there will be no racial segregation in public facilities. The hotel didn’t comply and wouldn’t comply. There was a law suit. This affected the interstate commerce so the federal government had regulation over that hotel still. 2. Power of the States: “Police Power” – states CAN’T regulate interstate commerce but states do have power and can pass laws over what happens within state borders. State regulatory powers are called “Police Power.” For Jefferson City, they have Police Power—they have all powers that protect public order, health, safety, and the general welfare of people in the state of Missouri. II. Bill of Rights – the first 10 amendments. This protects the individual against various types of interference by the federal government! This gives us certain liberties and rights, in which the government can’t interfere with. A. Bill of Rights protects us from Government st B. 1 Amendment Freedom of Speech – this has been protected by the courts. The courts are quick to protect our individual, political speech. 1. “Speech” includes Symbolic Speech – Symbolic speech is also protected by the first amendment. It goes beyond words. It includes all forms of expressive conduct, including gestures, movements, and clothing. a. Flag burning – this is constitutionally protected freedom of speech! Texas v. Johnson case. This was protected by the first amendment because it is expressive conduct. The government can also restrain certain expressions. The reasonableness is analyzed on a case-by-case basis. 2. Speech with Limited protection: Commercial Speech – Commercial Speech is how businesses speak – advertising and marketing. This is protected by the first amendment but they don’t receive as much protection! Commercial Speech can be restricted as long as long as it: promotes a substantial government interest, must directly advance the interest, and go no further than necessary to accomplish its objective. a. Bad Frog Brewery – the label of this company had a green frog on it. The label had the frog holding a middle finger up. The Court said that it wasn’t unconstitutional, it was more restricted. 3. Unprotected speech – certain types of speech will not be protected under the First Amendment. a. Defamatory – false statements that would injure the reputation of a person. Public figures don’t have as much protection against defamatory speech – example the Kardashian’s. Defamation law is much more protected for the ordinary individual. b. Fighting Words – words that tend to incite others to respond violently. c. Obscenity – or pornographic speak, which isn’t protected by the amendment. Miller v. California – the supreme court created a test for legal obscenity, including a set of requirements that must be met for material to be legally obscene. C. Freedom of Religion – under the First Amendment; states the government may neither establish any religion nor prohibit the free exercise of religious practices. 1. Establishment Clause – the guarantee of church and state; the first part of the constitutional provision. The government can’t establish a state-sponsored religion, pass laws that promote or aid a religion or preference one religion. 2. Free Enterprise Clause – no more can be compelled by government to do something that’s contrary to their religious beliefs. They will accommodate those beliefs, if they reasonably can. D. 4 Amendment: Search & Seizure – the 4 Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects.” Before searching or seizing private property, law enforcement must obtain a search warrant – an order from a judge or other public official authorizing the search or seizure. 1. Warrant Requirement --> Judge a. Probable Cause – to establish this, the officers must have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is more likely justified than not. 2. Exceptions – consent is the #1 exception to the warrant requirement. There are many exceptions, including reasonable suspicion. There are many exceptions. E. 5 Amendment: Self Incrimination – no person shall be compelled in any case to be a witness against himself. 1. Right to Silence – you have a right to remain silent. They also have to inform you of your right to remain silence as well. F. Due Process – Both the 5 and 4 Amendments provide that no person shall be deprived “of life, liberty, or property, without due process of law.” Due Process Clause— procedural and substantive. 1. Procedural DP: Government can’t take life, liberty, or property without trial! G. Equal Protection: Government is supposed to treat us the same! Under the 4 th Amendment, the government cannot deny any person within jurisdiction the equal protection of the laws. 1. Strict Scruting – the highest level of scrutiny a. Fundamental Right b. Suspect trait: Race or National Origin – it violates the equal protection clause unless it is necessary to promote a compelling state interest. Law based on gender is intermediate scrutiny! III. Privacy – the word privacy doesn’t appear anywhere in the constitution. In 1965, in Griswold v. Connecticut. The U.S. Supreme Court said that we have a constitutional right to privacy, which is IMPLIED, even though it’s not stated. 10/21/15 LAW231 Chapter 7 Criminal Law I. Civil Law & Criminal Law A. Major Difference – civil law is when two parties sue one another for money damages 1. Burden of Proof: BARD – in a civil case, the Burden of Proof is by a “preponderance of evidence.” In a criminal case, the Burden of Proof is “Beyond A Reasonable Doubt.” It’s a tougher burden than by preponderance of evidence. The sanction for violating civil laws are different than the sanctions for violating a criminal law. Incarceration, execution, and fine are penalties for violating a criminal law. In jury trials, in criminal cases, there is a unanimous verdict. All 12 must vote either guilty or non-guilty. B. Civil Liability for Criminal Acts – some things that people do is a crime and a tort. Someone can be prosecuted for what they did and sued at the same time. “Assault & Battery” is a part of civil law. The outcome of a criminal case has nothing to do with what happens in a civil case. They are both separate parts. Example story: Tort action – wrongful death with OJ case. Example #2: Robert Black Case – Robert was married to a woman named Bonnie whom he didn’t like. He shot her. Her family brought a “wrongful death tort” to him and won the case. II. Classification of Crime A. Felony – more serious crimes, with more serious penalties. The minimum imprisonment for a felony is 1 year. You can be in prison for a year or more. B. Misdemeanor – have less serious crimes, with less serious penalties. The maximum penalty is 1 year. You can serve a year or less. III. Essentials of Crime Liability A. Criminal Act: “Actus Reus” – usually an act of commission or an act of omission. An attempt to commit a crime is also illegal if substantial steps are taken towards a legal defense. “Doing nothing” can also be a crime. For instance, not paying your taxes. B. Criminal Mental State (State of Mind): “Mens Rea” – this is the intent to commit a crime. IV. Types of Crime A. Violent: Includes Robbery – taking another person’s property by force or intimidation through acts of violence. B. Property Crime 1. Burglary – the unlawful entry into a building with the intent to commit a crime. 2. Larceny – taking the property of another without their consent, with the intent to deprive them thereof. Larceny, unlike robbery, does NOT involve force or fear. Larceny is “sneaky.” 3. Forgery – the fraudulent making or altering something in a way that changes the legal rights and liabilities of another. Example: forging your grandmother’s handwriting on her check, changing the dollar amount. C. Public Order Crime – “Morality crimes” – the laws that outlaw prostitution, illegal drugs, gambling laws. These are the crimes against the public order. These are viewed as detrimental to society as a whole. D. White Collar Crime – crimes that occur in businesses, at work. Non-violent, illegal acts, committed by people to get a financial advantage. Usually committed at work. 1. Embezzlement – when someone is trusted with money and they turn around and steal it. The fraudulent conversion of property or person, owned by one person but taken by another. 2. Bribery – giving money or anything that an official may find valuable. When does the crime of bribery occur? When the bribe is offered, the crime of bribery has occurred. 3. Trade Secret Theft – every business has its trade secrets – super secret information that gives a business an edge over its competitors. Ex: research, price list, planning & development, etc. Stealing trade secrets is both a federal and state crime in all 50 states! E. Organized Crime – operates illegitimately. They satisfy the public demand for illegal goods and services. They sell us the very activities, prohibited by the public order crime: prostitution, human trafficking, credit card scams, etc. Banks must report federal transactions over $10,000. This creates a problem for these criminals. 1. Money Laundering – organized criminals can’t put their money in the bank, so they launder money through legitimate business. They buy or get an interest in a legitimate business and report the money through the business. Ex: running a car wash business, with dirty money. 2. RICO – The statute passed that made it a federal crime to use dirty money to buy the legitimate business. V. Defense – “under certain circumstances, the person who does the crime doesn’t have to do the time.” The defendant has a chance to put out a defense that might justify or diffuse his action. A. Infancy – a person who is an infant, or hasn’t reached the age of majority. In the U.S. we developed a juvenile system, to handle cases for people 16 and younger. You are an adult at 17 years old. 16 and younger go through the juvenile system. Juvenile Court has the jurisdiction to put a child into adult court, depending on the crime. B. Intoxication – voluntary & involuntary intoxication; Involuntary intoxication is when a person is unaware that they have taken an intoxicating substance or is forced to take an intoxicating substance. Voluntary intoxication is when you drink or get high willingly. In the state of Missouri, voluntary intoxication is NOT a defense to any crime. C. Insanity – a person who is “insane” shouldn’t be held accountable. But it must be established that they’re insane enough. “Manoton test” – an old test The Irresistable Impulse “Temporary Insanity” – a new test; when someone’s temporarily insane. This was a new insanity defense used in various states. The problem is that people were using it to get off of crimes. They came up with a different one called the Modelpeno Insanity Test. In order to get “not guilty,” you must show that you have a mental disease. This person goes to the state mental hospital until someone states they are cured. A person from that facility then has to convince the judge that they aren’t dangerous anymore, for them to be released. D. Self Defense – you can use a reasonable amount of force to protect yourself and your dwelling (home). In the state of Missouri, you can use “deadly force” if you are in imminent risk in a deadly scenario. You can also use deadly force to protect your dwelling when you’re in it. You can use deadly force towards the attempted burglar. Lastly, you can use deadly force towards an attempted carjacker. Example: if someone is trying to steal your possessions, say your car, you can use reasonable force but you can’t use deadly force since you’re not protecting human life. VI. Criminal Procedure -- created to keep officers from violating citizens th th th A. Exclusionary Rule – all evidence that the police get by violating people’s 4 , 5 , and 6 amendments and rights can’t be used. The purpose of this is to deter police from misconduct. 1. Fruit of Poison Tree – when police start by violating the rights (example: getting a confession illegally) and then acting legally under an illegal foundation. In this case, the confession would be the fruit of poison tree. B. Miranda Rule 1. Miranda v. Arizona – Miranda was picked up for the rape and kidnapping of a girl. They didn’t advise him of his right to counsel or remain silence. They got info out of him because of this. He wasn’t advised of certain rights before questioning. 1 – The right to remain silence. 2—Everything you say can be used against you 3 – You have the right of counsel. 4 – If you can’t afford an attorney, one can be appointed for you. LAW 231 11/4/15 Next Week: Contract Law – Chapters 9, 10, & 11 Final Exam – Wed, 12/9 @ 5:45pm Chapter 12 – Torts “Tort” is French for wrong. Basis of all torts: wrong & compensation. Tort Law – Wrongful conduct by one person that causes injury to another. A tort action is a “civil action” where someone sues someone for damages. Tort law gives us remedies when people invade our protected interest. I. International Torts – intentional torts are “intentional acts.” “Tortfeasor” A. Assault & Battery – in criminal law assaults involve “contact.” In civil law, the tort of assault is an intentional act that creates in another person an apprehension or fear of harmful/offensive contact. Battery is when the contact actually happens. Battery is the harmful or offensive physical contact, “intentionally” performed. B. False Imprisonment – the intentional confinement or restraint of another person’s activities without justification. False imprisonment interferes with the freedom to move without restraint. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force. 1. Merchant’s privilege defense – In Missouri, a merchant can detain a suspected shop lifter but in order for them to stay within the rights, they must have: (1) Probable cause to the believe the person actually stole something & (2) The detention by the merchant must be reasonable. C. Defamation—wrongfully hurting another person’s good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others. Slander – breaching the duty orally – is defamation. Libel – the duty in permanent form or writing – is also defamation. Statements of opinion are protected by the First Amendment. In order for it to be defamation, you must communicate it to a third party. It doesn’t count if you say it in your head. The person who republishes or repeats the defamatory statement is liable, even though they aren’t the original source! 1. Online: Communications Decency Act – this shields and protects the internet service provider from defamation actions based on what the user says online. Facebook, Twitter, etc... can’t be held liable for defamation for the statements that users say. You can sue the person who said it but you can’t sue the site because of this law. D. Trespass – there’s two kinds of property: real & personal. Trespass – happens when a person without permission, enters onto another person’s land or remains on the land. A guest that you invite to your home is NOT a trespasser. A person who stays after the invitation to say has been revoked. 1) Real property – land & things permanently attached to land. 2) Personal property – everything else; all property that’s moveable. E. Conversion – taking personal property without the owner’s permission. This is the civil/tort side of stealing, larceny, etc (crimes related to theft). II. Negligence – the tortfeasor doesn’t wish for these things to happen and they don’t intend to do a wrongful act. With negligence, they are careless. This occurs when someone suffers injury because of another’s failure to live up to a required duty of care. A. Element of Negligence 1. Duty of care & breach a. “Reasonable Person” – this is how careful you have to be. You must exercise the care of a “reasonable person.” b. Retailer s & business invitees – the customers are called “business invitees.” What kind of care do the retailers owe to the business invitees? As a retailer, it is your duty to exercise duty of care in protecting the customer of foreseeable risks. 1) Slip & fall --> Martin v. Wal-Mart – Martin went to the sporting good’s aisle in Wal-Mart. Someone had got into a box of shotgun shells & someone opened the shells and spilled the pellets over the floor. Martin slipped and fell on the pellets. He sued Wal-Mart but Wal-Mart said they were unaware. The court said that with that kind of store, Wal-Mart had a duty to get out in the aisles, discover the hazards, and protect the customers from risks. Wal-Mart lost the court case & Martin won. 2. Duty to Rescue??? – There is NO duty to rescue in tort. Failing to rescue a stranger in danger is not a duty of tort. The law doesn’t require you to do so, but if you could do it then your ethics may require more of you & lead you to do it. 3. Injury Requirement – If there is no injury, there is NO tort. The plaintiff has to have suffered something to receive compensation. 4. Causation – the wrongful act has to cause the harm. There’s two questions to ask: a. In fact – answered by the “but for” test. “But for” the wrongful act, the injury would not have occurred. b. Proximate Cause – when the connection between the act & the injury is strong enough to justify imposing liability. B. Defenses 1. Assumption of Risk – A plaintiff who voluntarily enters into a risky situation knowing the risk involved, will not recover. This requires: knowledge of the risk and voluntary assumption of the risk. 2. Comparative Fault – when plaintiff has sued defendant & said the defendant was negligent and the defendant says the plaintiff was negligent too. This is when the plaintiff and defendant’s negligence are computed, and the liability for damges is distributed accordingly. a. Damages!! – WE MUST KNOW HOW TO COMPUTE THE AMOUNT OF DAMAGES FOR EXAM! Chapter 13 – Product Liability I. Strict Liability – liability for reasons other than fault (liability without fault). A. Not intentional or Negligent – Ex: if someone has a wild animal in their backyard and the animal attacks your neighbor, they would be at fault. He’s not liable because he intended or was careless; he’s liable because he created an extreme risk. People who do things that create an extreme risk are liable. Ex: companies that blast with dynamite. Dynamite’s so dangerous, that you can’t make it safe. II. Strict Product Liability – when product defects cause injury or property damage to consumers, users, or bystanders, even when there’s no evidence of negligence. A. DEFECTIVE Products – it doesn’t matter if the manufacturer exercised due care and exercised negligence or not. The plaintiff does have to show that the product sold by the defendant (manufacturer) was defective. B. Product Defects: 1. Manufacturing defect – when there is a flaw in the manufacturing process and the product departs from its intended design. 2. Design defect – relates the product’s actual design. This is when the manufacture designs a product and that design results in an injury to the user. 3. Warning defect – when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor. C. Who can sue? 1. Consumers, users, & bystanders – you can sue if you are the consumer, user, or bystander. You don’t have to be the user to sue. Ex: If a bottle of Coke that your friend had exploded and it also hit someone standing behind them, the bystander could sue too for their injuries by the defected product. D. Who is liable? 1. “SELLERS” – everyone apart of the manufacturing process. The sellers, the assemblers, the manufactures, etc. 2. Joint & Several Liability – when suing who’s liable for a product defect, the “sellers” are jointly liable, meaning you could sue the seller, assembler, and manufacturer together. Or you could just sue the manufacturers. You can sue them all or sue them separately. III. Defenses A. Assumption of the Risk & Product Misuse – Assumption Risk – when the plaintiff knew and appreciated the risk created by the defect yet voluntarily engaged in the risk anyway. Product Misuse – when the user puts the product to the use that it isn’t designed for. Ex: using an electric kitchen knife on a chair instead of on what it’s made to use. B. Comparative Fault 1. Damages – ex: 70% (for the plaintiff) of 10 million would give the plaintiff $3,000,000 C. Commonly Known Danger – when you know a “commonly known danger,” the dangers associated with certain products (such as knives) are so commonly known that manufacturers need not to warn users of those dangers. Ex: a person who goes to McDonalds and eats a ton of Big Macs and has a heart attack. Everyone knows if you eat too much of that food, it’s unhealthy. Ex #2: McDonald’s Coffee Story... 11/11/15 Reminders: Next week we will cover Chapters 21 & 22 th Final Exam: Wed, Dec. 9 @ 5:45pm | only two more lectures BEFORE comprehensive final! Final: 50 multiple choice questions Chapter 9 – Contractual Formation Function of contract law: to make people keep their promises Contract: a promise or the breach of which the law gives you a remedy. A contract is a legally binding agreement. Not every contract has to be written & signed to be enforceable! I. Elements of a Contract – Agreement, Consideration, Capacity, and Legality A. Agreement – a meeting of the minds in regard to the terms of the contract. The process of agreement involves two steps: offer & acceptance 1. Offer – “offeror”: the party who makes the offer | offeree”: the party to who the offer is made to. You must have serious intent by the offeror & the terms must be. The offer has to have definite terms so the court can determine if a breach has a occurred. This consists of the identity of a party, the subject matter of the offer, time of ordnance, etc. Communication is the last requirement. The offer must be communicated to the offeree. This gives the offeree the power to transfer the offer into a contract by accepting the offer. Serious intent is determined by what the reasonable person would think of as a serious offer. 2. Acceptance – This must be unequivocal. This must mirror the terms of the offer – this is called the “Mirror-Image Rule.” A counter-offer is when it’s not a “mirror-image.” It must be a mirror-image in order to be an “acceptance. “ Silence or inaction CANNOT be taken as acceptance, even when the offeror says silence is acceptance. B. Consideration – value in return
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