BLAW Exam #1 Study Guide
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This 11 page Study Guide was uploaded by Lexie Barclay on Monday September 12, 2016. The Study Guide belongs to BLAW at University of Arkansas taught by John Norwod in Fall 2016. Since its upload, it has received 163 views.
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Date Created: 09/12/16
BLAW Study Guide #1 (Wk 14) Chapter 1 3 MAJOR TOPICS: ● Systems of Law ● Classifications of Law ● Sources of Law 1) Systems of Law a) Common Law Nation: judges make laws b) Civil law nation: judges do ot make laws i) Code based ii) Most common system in the world iii) Louisiana is a civil law system bc of the Louisiana Purchasethey retained French tradition 2) Classifications of Law Criminal Law Civil Law ● Person commits offense against ● Offense against another the government individual ● EX: felony ● EX: running over pedestrian ● Government vs. defendant ● Plaintif vs. Defendant ● BURDEN OF PROOF: guilt must ● BURDEN OF PROOF: by a be proven by the government preponderance of the evidence beyond a reasonable doubt ( ore guilty than innocent) ● If government is unable to ● Settled by $$$ produce enough proof that ● Plaintiff brings case defendant is guilty=not guilty ● Settled by jail time/$$$ ● EX: Casey Anthony trial ● Government brings case Double Jeopardy→ c an’t e tried twice for a e crime (5th amendment) C AN however, be tried in a higher court ● EX: if the crime committed is also a federal offense, you can take them then to federal court ● Can be taken from criminal court to civil court if it is both a criminal offense and a civil offense (different courts) ● EX: OJ Simpsonfound not guilty in criminal court, then found liable for millions of dollars in civil court 3) Sources of Law ● Constitutions ● Legislations (passed by elected officials; statute/code) ● Administrative Regulations (rules promulgated by administrative agencies) ● Executive orders ● Case Law (aka common law) ○ Fill in gaps not covered in the types of laws above 1. Constitutional Law: contract between the people and the government a. Only really applies in some cases that are in conflict with the government b. There are state and federal constitutions c. Only applies if there is “state action” d. Doesn’t apply to private enterprise/private parties 2. Legislation: “statutory law” a. Federal (passed by Congress): US Code b. State c. Local d. Issues associated with Legislation i. If the judiciary interprets the law a certain way, legislation can not change the law but CAN w rite a new law ii. If legislation conflicts with constitution, CONSTITUTION TRUMPS LEGISLATURE iii. Judicial branch makes this call^^^ iv. EX: Marbury VS Madison, 1803 1. First challenge/example of this 3. Administrative Law a. Subservient to statutory law 4. Executive Orders a. CAN be repealed by congress, but it is very rare 5. Case Law (Common Law) a. “Stare Decisis” “let the decision stand” b. Most lawsuits are handled outside of court (not a legal precedent that can be brought before a judge) c. Trial court verdicts (very little legal precedence) d. NO: cases have to be appealed appellate decisions are in national reporter system, p. 16 e. One state does not have to follow precedent of another state f. FEDERAL LAW: they do not have to follow precedents set in other circuits (but are often affected by them) i. AR: goes to St. Louis federal court (closest to us) ii. OK: goes to Denver federal court ● William Marbury v James Madison (1803) ○ It is emphatically the province and duty of the judicial department to say what the law is ○ It is the responsibility of the supreme court to determine whether or not a statute violates the constitution ● State courts have the right to interpret state laws (not even the Supreme court can overrule). ○ State can rule for MORE protection for the accused but NOT LESS. ● Precedent: an a ppellate opinion which is binding law on subsequent similar cases in the same jurisdiction Chapter 2 Stages of Litigation: 1. Complaint 2. Service of Processformal notice to the defendant that they have been sued (summons: standard form that explains to the defendant what the law is) 3. Defendant files an answer a. If the defendant does NOT file answer, plaintiff automatically WINS b. At this point^^ government can seize assets and/or g 4. Discovery a. request for production, interrogatories, depositions ● NO screening process up front (anyone can file a lawsuit) ○ Open Door Policy in civil court ○ Occasionally leads to frivolous lawsuits ■ EX: 2001 former state senator sued in federal court to have his daughter put on the Central Cheer squad ■ EX: Koch VS Adams student sues teacher for confiscation of cell phone ■ EX: Stella Liebeck VS McDonalds ● Coffee W AS too hot & she won $2.9 million ● Damages ○ Compensatory Damages: compensate for $$$, pain and suffering, and loss of income ○ unitive Damages: rare may be awarded due to extreme negligence ■ Occur in tort settings, not contract settings ● Adversary System: civil cases vs. criminal cases ○ Obligation to represent defendant/plaintiff with enthusiasm ○ Can’t present untrue evidence ○ “Rules of ethics:” can not make an argument they know is frivolous ● Method of Payment ○ Defendant’s lawyer: hourly ○ Plaintiff’s lawyer: contingency (30% or even higher) (if they lose, no pay) ● Reducing litigation: ○ Use the contingency rule ○ “Loser pay” rule: plaintiff sues defendant and loses, plaintiff must pay defendant’s legal expenses ■ AR uses this rule: breach of contract cases only ■ Discouraging frivolous lawsuits: “Rule 11” Terms: Deposition: each side may interrogate potential witnesses; both sides lawyer & court reporters are there i. Taken prior to trial ii. Rules of perjury apply iii. Witness must then take the stand in court Liable: someone found guilty in civil court Comparative Negligence: party A is __% at fault and party B __% at fault Tort Reform: limits what a plaintiff may recover in a tort case ○ Capping punitive damages ○ Limiting pain and suffering ○ associated in some states (not all) in efforts to reduce number of frivolous lawsuits Summary Judgement: the judge decides the case without going to the jury (no fact issue) pretrial, during the discovery stage of litigation Directed Verdict: will be granted if the plaintiff’s attorney fails to offer a key piece of evidence Judgement Notwithstanding the Verdict: there was a verdict returned, but the judge decided it was erroneous Chapter 3 ADR>> Alternative Dispute Resolution Reasons for this: cost, time, flexibility/control, avoids “all or none” verdict Two Types: 1. Mediation a. Neutral third party leading to settlement (?) b. Nonbinding c. Most popularoften required by judges before judges before seeing their case on trial 2. Arbitration a. Neutral third party b. Binding c. Ways it is agreed to: i. After the dispute arises ii. In the contract d. Federal Arbitration Act of 1925 e. EX: ticketmaster.com f. Prepaid card g. Student loans Chapter 4 CONSTITUTIONAL LAW “esto perpetua” ***TEST NEXT THURSDAY 67*** “Esto perpetua” (latin) “Let it be perpetual” 4. Unprotected Speech a. “Clear and Present Danger” concept: fighting words, threatening speech, etc. i. EX: shouting “FIRE!” in crowded theatre b. Defamation (covered under torts) c. Obscenity i. “I know it when I see it.” Jacobellis vs. Ohio, 378 US 184 (1964) ii. Defined by law as: 1. Whether the average person, applying contemporary standards, would find that the work appeals to the prurient interest. 2. Whether t he work depicts sexual conduct in a patently offensive way as defined by applicable state law. 3. Whether t he work lacks serious literary, artistic, political, or scientific value. Amendment 2: Right to bear arms Amendment 3: quartering of soldiers Amendment 4: right from unreasonable s earches and s eizures Searching may be based on: 1. Consent: State vs. Brown, 156 SW 3d 722, AR Supreme Court 2. Warrant 3. Justifiable Excuse (emergency , pat down pursuant to lawful stoppage) a. Cell phones?? US Supreme Court, June 27, 2014 i. Can’t search your cell phone if you get arrested Amendment 5: protection of the accused double jeopardy self incrimination due process 5th & 14th amendments must be “state action!” Amendment 6: criminal procedures in federal court (later extended to state courts) Amendment 7: juries in civil cases (federal court) (doesn’t apply to state courts) Amendment 8: c ruel and unusual punishment excessive bail death penalty ? Amendment 9: rights retained by people (including right to privacy) EX: Griswold vs. Conn., 381 US 479 (US Supreme Court, 1965) → found guilty, then SCOTUS overturned verdict EX: Roe vs. Wade Amendments 1013: not on exam Amendment 14: due process a nd equal protection. .not an “absolute” right (Strict Scrutiny test vs. Rational Basis test) Strict Scrutiny→ “compelling state interest” EX: different treatment based on race Rational Basis→ any conceivable rational basis for different treatment 2 EX Cases: 1. Registering for selective service: a. Rostker vs. Goldberg, 454 US 57, US Supreme Court, 1981 2. Drinking Alcohol: Craig vs. Boren, 429 US 1124, US Supreme Court, 1977 QUIZ: 3. C 4. C 5. C (not on test) 6. D 7. C 8. D Chapter 5 Sect. 1: Background and Significance: Three primary beneficial functions (comparable to three branches of government): Rulemaking (legislative) based on expertise and experience Enforcement (executive)punishments for violations of rules Adjudication (judicial)quicker Sect. 2: Agency Creation & Powers Creation: Enabling Legislation: “defines the agency’s authority” Independent regulatory agencies (pg 109) Agency Powers & the Constitution: Delegation Doctrine→ Article 1 subject to executive control, legislative control, judicial control Sect. 3: Administrative Procedures Act (federal) A. Arbitrary and capricious test: courts authorized to i nvalidate agency actions which are arbitrary, capricious or abuse of discretion B. Rulemaking authority: a. Notice to public
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