chapters 1-6 BLAW 2013-006
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Date Created: 10/10/15
BLAW GREENHAW CHAPTERS 16 SYSTEMS OF LAW 0 common law english system brought over by founding fathers based US on this idea of judge made law 0 judge makes a decision regarding a conflict and it is written down as law and precedent in place of king making decisions but holds same regards 0 has flexibility since the rules can be changedmodified o predictable since judge s ruling applied to future same situations 0 french version nobles make laws based on core principles CLASSIFICATIONS o criminal law statutory law sets out a minimum level of acceptable behavior by legislative representatives of the people 0 used to protect society from bad behavior 0 abused in england hence the proof of violation issue burden of proof 0 civil law is suing for money due to damages 0 since freedom is not at stake as in criminal cases burden of proof is much less I 51 in civil vs gt95 in criminal I burden of proof lies with the prosecution in criminal defendant in civil 0 double jeopardy filing charges against same person for same crime in same judicial level more than once in criminal cases can be charged by fedstate fedother gov ect SOURCES OF LAW 0 everything must comply with the constitution 0 bill of rights contains the things that the government cannot interfere with 0 government interference is called state action 0 doesn t apply to individuals or corporations infringing on other s rights 0 legislationfederal state and local 0 judical branch of respective government interprets the law if the interpretation is different than intended legislature needs to amend it constitution always right law cannot disobey the const the law itself is the interpretation not the written thing I judicial review marbury vs madison establishes the power of the judicial branch to interpret the law and actions of other governmental branches using the constitution as a guide 0 uniform laws apply to interstate activities I uniform commercial code covers business transactions in all 50 states administrative law see page 5 case law judge s decisions are considered law I doctrine of stare decisis judicial level above sets precedent precedent to be used like a lighthouse to guide future decisions CIVIL DISPUTES 0 focuses on the merits of the argument 0 courts have open door policy anyone can file a suit 0 americans have more civil cases than any other country possibly due to the open door policy 0 510 of civil cases go to court 0 lawyers are there to advocate for each side to the jury orjudge I contingency arrangement only lawyer receives is of what he wins for the plaintiff can also do hourly I some states andor cases have the loser pay rule loser pays winner s legal fees 0 plaintiff suer defendant suee I rule 11 discourages frivolous lawsuits by awarding the defendant the money if the plaintiff starts a frivolous suit ROLES AND JURISDICTION o jury role rules on matter of fact can request a jury in civil cases random set of citizens o judge role tell jury laws applicable in the case I trial court present case to jury I appellate courtreview by 39 judges of case presented nothing else 0 in US supreme court appellatejudges are appointed by POTUS confirmed by senate then tenured based on behavior and locked in for life 0 jurisdiction is the power that a court has to hear certain cases I need both subject matter and personal jurisdiction 0 subject trial vs appeal no specifics for state courts 0 personal jurisdiction idea of minimum contacts if nonresident in civil cases min contact is the crime itself in criminal I cyber space min contacts must be physical not over the intenNebs 0 forum selection clause obvious min contact I federaljurisdiction specific 0 district courts trial courts 0 exclusively heard in fed court if US is a party bankruptcy copyright issues patents 0 could be heard in fed court doesn t have to question of fed law diversity of citizenship ppl from diff states where damages exceed 75000 TRIAL COURT PROCEDURES 0 civil pre court procedures 0 file complaint which says who is suing who jurisdiction elements why suing and for how much 0 service of process deliver complaint to defendant is time sensitive answer is filed with counterclaim and cross complaint discovery finding out info about case I witnesses are interviewed and asked what they will say in court so no surprises and no devaluing of witnesses c this is a deposition what a witness is going to say on that day in court deviation results in devaluing of that witness c class action lawsuit many people suing a common defendant need certified for the little guys to go up against the big ones 0 civil judgements I garnishment taking a of wages to pay debt I seizure of non exempt assets messy 0 trial procedures I jury selection call in 2530 only have about 12 sit in on case 0 voir dire lawyers question jury to see toughness o lawyer can take out up to three jurors that would be hard to convince cannot be due to race or gender I jury is seated opening statements by lawyers roadmaps I testimony starts 0 direct questioning witness knows what the questions from lawyer who builds the case using this witness witness doesn t know other lawyer s Qs o heresay is not allowed what somebody told the witness and the witness is telling the jury actual person who said it cannot be crossexamined therefore not permissible 0 prior criminal actions cannot be used in proving guilt in criminal cases can in sentencing phase I judge exercising control 0 summary judgement ends a case before it begins as there is no question of law or fact 0 directed verdict middle of case burden of proof did not have all elements and defendant notices and judge deems it valid and rules in favor of defendant 0 judgement NOV jury did not follow instructions not reasonable verdict decision is overturned after trial by judge THE APPEAL o a review of what takes place in a trial 0 lawyers submit briefs of evidence and testimony lawyers may argue in court 0 can affirm yep verdict is good reversenope verdict is bad remand idk send it back to trial court I can amend if minor ALTERNATIVE CIVIL DISPUTE RESOLUTION 0 cheaper faster more flexible and the plaintiff and defendant have more control 0 avoids all or none result 0 does have lawyers 0 forms 0 mediation nonbinding 3rd party suggests a compromise I many judges require this to happen before a court date is set to resolve before wasting court time o arbitration binding 3rd party decides a winner I seen in contracts THE CONSTITUTION 0 written by everyday people in 1787 o adjusts to needs of society by amendments and interpretations o federalism division of power between federal and state government 0 article 1 legislature o commerce clause regulating interstate commerce I used to pass 1964 civil rights law and other stuff 0 article 2 executive o president cannot declare war but can negotiate treaties and appoint officials o the rest of the articles 0 judicial branch has judicial review 0 full faith and credit clause laws upheld in other states like drivers licenses o supremacy clause no laws can go against the constitution federal acts are above state and local acts I preemption doctrine state law goes down if counteracts fed law BILL OF RIGHTS AND CONSTITUTIONAL AMENDMENTS o 1 free speech 0 establishment clause gov has no religion in it 0 free exercise no law prohibiting any religious practice I ex hobby lobby and the mom after pill debacle 0 freedom of speech from the government I applies to symbolic speech like flag burning noncommercial speech is super protected commercial speech is less protected needed to hone in on offensiveness so call made this cool thing on OBSCENITY o miller test it is obscene if a an average person using contemporary standards would find it sexually arousing b the work depicts sexual conduct in a very offensive way c the work lacks serious literary artistic political or scientific value 0 it s okay to have obscene material but it s not okay to do interstate commerce with it 4 search and seizures 0 government cannot search you or your stuff unreasonably I back to the days where england abused proving guilt I can search if c you gave consent 0 judge issues warrant due to probable cause 0 justifiable cause like self defense officer pats you down so you don t stab him 5 criminal stuff 0 double jeopardy 0 due process clause nobody can be deprived of life liberty and freedom without due process must be state action all about fairness 9 people s rights the founding fathers didn t think of 0 rights protected from state action including privacy 0 cases involving reproductive rights hit 9th amendment 14 equal treatment for all citizens o okay you can be treated differently if your treater passes I strict scrutiny must show compelling state interest forjustification in discrimination race I rational basis any conceivable reason to discriminate different people sex religion anything but race ADMINISTRATIVE LAW deals with congress s administrative agencies groups of experts the regulate the fields that they are experts in three levels of authority 0 rule making legislative makes regulations that are enforceable and have power I process notice to public 30 days of public comment on if it39s goodbad then ratification o enforcement executive agency enforces their own regulations 0 adjudication judicial quicker and cheaper than civil courts I appeal is made to full commision before leaving agency to appellate court administrative procedures act 0 judges cannot question law and fact but process ie if the agency has overstepped its bounds ect 0 public accountability I freedom of information gov documents are readily available I sunshine law gov operate in open meetings I sunset law agency dismantles in a timeframe CRIMINAL LAW 0 jurisdiction lies in state that crime occured or within US for federal 0 foreign corrupt practices act if a US official does shady shit overseas he or she will be tried in the US for said shady shit Mens Rea mental intent to break law actus reus actual breaking of law 0 need to prove both 0 violent crimes 0 assaultintent of physical injury 0 battery actual physical injury 0 murder intent to kill someone and succeeding premeditated o manslaughterkilled someone under extreme emotional disturbance not intent 0 property crimes 0 robbery face to face taking of property 0 burglary breaking entering and taking of property 0 larceny taking of property 0 white collar crimes 0 insider trading buyingselling stock based on insider info not available to public 0 organized crime 0 money laundry gt10000 transactions banks must report 0 RICO racketeering deterrent 2 or more acts in 5 yr period combat mob o defenses to criminal law selfdefense use degree of force equal to force confronted with necessity crime was needed to protect against a worse crime insanity defendant has burden of proof of mental incapability to understand the law at time crime was committed mistake of fact entrapment must have been given the notion to break the law and the opportunity to not just opportunity 0 constitutional protection for criminal procedures 0 exclusionary rule evidence wrongfully obtained by violation of amendments gets thrown out of the case 0 5th miranda rights to remain silent have a lawyer pause questioning until lawyer gets there ect
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