exam 1 module 1-5

utilitarian law

law should be focused on social usefulness of legislatiom. Government should enact laws that "promote the general public's happiness and encourage people to act in ways that maximise pleasure and minimize pain"

justice, speed and economy

"Rule 1 of the Federal Rules of Civil Procedure provides that procedural rules should be construed 'to secure the just, speedy and inexpensive determination of every action.'" So, some issues in the law are allowed, such as those dealing with plea bargains, because ruling against them could set the courts back years mired in cases that could have been dealt with more efficiently.

what is law

"an order will be called law if it is externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation - Max Weber" "if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which knowledge enables him to predict. The prophecies of what the courts will do in fact and nothing more pretentious are what i mean by the law - justice oliver wendell holmes" "law is a principle or rule of conduct so established as to justify a prediction with reasonable certainty that will be enforced by courts if its authority is challenged - justice benjamin cardozo"

attitudinal theory

judges make decisions based primarily on their own political preferences - there has been some support but researchers who support are mostly political scientists who focus on higher court decisions like the supreme court which is usually more political - many judges like to view themselves as independent and while their political beliefs may play a role in their decisions, most judges will not simply toe party line

natural law

law is that which reflects or is based on, the built-in sense of right and wrong that exists within every person at birth. However, when there is no consensus in society about what is morally right and wrong, natural law loses its effectiveness as a basis of law

historical jurisprudence

law is the will of the sovereign with the idea of the spirit of the people. Law is only valid to the extent that the will of the sovereign is compatible with long standing social practices, customs and values

adaptability

lawmakers cannot anticipate every possible outcome in a decision so laws should be able to evolve and adapt to social, environmental and political changes within out society

public policy

laws should be based on the benefit they might have to further specific policy goals such as banning discrimination or allowing same sex marriage

continuity and stability

laws should be slow to change in order for people to learn about them, for the laws to be applied more uniformly and understood better by those who have to enforce them, to encourage a healthy economy by establishing a predictable guide for conduct

ethics

the study of morality and one concern of many ethicists is the issue of the death penalty. in Gregg v Georgia the supreme court grappled with this issue and despite some opposition a majority of the court decided that the death penalty was not unconstitutional under the 8th and 14th amendments

legal sociologists

such as Donald Black, began to statistically quantify legal decisions studying the outcome of cases based on the financial standing, race, social class, respectability and cultural differences of those involved in disputes. Claimed that discrimination and the "relational distance" between litigants dictate the outcome in cases more so than the specific legal rules - many legal sociologists go too far in dismissing the significance of legal rules and precedent

legal realists

such as Jerome Frank and Karl Llewellyn, realists began to distinguish between what they saw as law on the books from the law in practice and they began to believe that many judges were making decision based on their own personal biases and beliefs than on legal reules and precedent

appellate courts

the appellate court reviews the proceedings of the trial court to determine whether the trial court acted in accordance with the law, and whether the appellant properly preserved the error - lawyer has to object to an error at trial to preserve i - all parties in a case have the right to an appeala if they properly preserve the error

commerce clause

- The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations - channels of interstate commerce such as roads, rivers, airways - instrumentalities of persons or things in interstate commerce - things or activities that substantially affect or are substantially related to interstate commerce

In re Vioxx product liability litigation (2007)

- 1999 FDA approved Vioxx for sale in the US, to help ppl w arthritis available for prescription, was exposed in 2004 that indicated increased risk of heart attacks and strokes. alleged that Merck(the corporation) knew of the risks, during discovery refused to provide information under attorney client priviledge - can a corporation claim attorney-client priv for documents that have been reviewed by both lawyers and non-lawyers - attorney client priv protects communications between employees and legal counsel on matters based on their corporate responsibilities seeking and rendering legal services

incorporation: applies to federal and state governments

- 1st amendment - 2nd amendment - 4th amendment - 5 amend double jeopardy clause - 5th amend self incrimination clause - 5th amend due process clause - 5th amend takings clause - 6th amend speedy trial clause - 6th amend impartial jury clause - 6th amend informed clause - 6th amend confrontation clause - 6th amend compel witnesses clause - 6th amend counsel clause - 8th amend cruel and unusual punishment clause

incorporation: applies to federal govt only

- 3rd amendment - 5th amendment grand jury clause - 6th amendment district clause - 6th amendment jury unanimity clause - 7th amendment - 8th amendment bail clause - 8th amendment fines clause - 9th amendment

people v beardsley (1907)

- Beardsley was a married man drinking for several days with Blanche Burns, where she consumed 3-4 grams of morphine after Beardsley tried to stop her, where she eventually died, beardsley charged with manslaughter under failure in his duty to act to provide reasonable care for Burns as her natural guardian at the moment - is Beardsley responsible for Burns death under omission and failure to act, the legal duty requiring him to make all reasonable and proper effort to save her despite the fact she is not his wife and voluntarily taken the drugs - Beardsley is not responsible under the act and his conviction was reversed - Territory v. Manton: husband convicted of manslaughter bc his wife was left intoxicated in the snow and died, he neglected to perform his duty as her protector - state v. smith: husband neglected to provide clothing and shelter for his wife, she died from winter conditions and he was convicted under legal duty - state v. Behm: conviction of a mother to the death f her child to cold exposure - Gibson v. common wealth: husband and wife convicted due to neglect of a child of a maid without proper care

miller v alabama

- Kuntrell Jackson shot and killed a convenience store owner and Evan Miller beat and up and killed a friend in a fire, both juveniles were tried and convicted of murder, sentenced to life without parole - is the mandatory sentencing of defendants under the age of 18 convicted of homicide to a life sentence without parole a violation of the 8th amendment? - In 2012, the Supreme Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. - Roper v Simmons: prohibits the execution of juveniles bc children lack maturity and responsibility - Graham v. Florida: prohibits juvenile sentencing to life without parole for non-homicide offenses because juveniles have a greater chance of reform

Marsalis v. LaSalle (1957)

- Marsalis was scratched by a cat, LaSalle agreed to observe the cat for rabies and Marsalis sued for personal injuries and cost of medical treatment bc she went through treatment bc the cat ran away - if an individual voluntarily undertakes to care for an ill/injured or helpless person, are they held under legal obligation to follow through with the agreement and use reasonable care - yes, LaSalle is responsible bc she agreed to observe the cat - law of tort in Louisiana: every act where a man causes damage to another, obliges him by whose fault it happened to repair it - prescott v. central contracting: rule of law that negligence is the violation of some duty - 65 CJS negligence: one who voluntarily undertakes care for is responsible and under legal obligation to use proper care - serio v. American brewing company: 1000 dollar compensation for a dog bite for his suffering under the pasteur treatment - plutner v silver associates inc: there is no legal duty to offer relief or assistance to one who is sick or injured - buch v. amory manufacturing co.: the court found that a factory foreman is not responsible for the injuries suffered by a child playing around the factory because it wasnt his child

aiding and abetting

- New Mexico Stature 30-22-4, anyone who knowingly conceals any offender or gives such offender any other aid, knowing that he has committed a felony, with the intent that he escape or avoid arrest trial conviction or punishment is guilty of a fourth degree felony - if the person is related to the felon - husband, wife, parent, grandparent, child, grandchild, sibling they are not subject to this crime - State v. Mobbley (1982) this statute does not exempt a defendant from prosecution when the defendant harbors an additional felon not explicitly exempted by the statute even if revealing the other felon might also reveal their relative - according to the dissent " the statute should not be construed so narrowly as to frustrate the legislative intent to exempt a wife from turning in her husband although the court should not add to the provisions of a statute it may do so to prevent an unreasonable result

business ethics

- New York Central and Hudson River v. United States (1909) : if the illegal act is done for the benefit of the principal while the agent is acting within the scope of their employment in the business of the principal the corporation can be held liable for that employees action aka vicarious liability - before this case, the law held that corporations could not be charged with a crime, with the reason was that it would be seen as potentially violating shareholders 5th amendment rights by taking their property without due process of law - given the increasing use of corporations at that time to conduct business and the severity of some of the crimes being committed, the court states that to give corporations immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject matter and correcting the abuses aimed at

guaranty trust co. v. york (1945)

- Van Swerigen brothers need money to keep their business from failing, took out loans from ppl on the street called bonds, York recieved 6,000 dollars in van sweringen corporate bonds as a gift. Sued guaranty trust in fed court based on diversity of citizenship, claimed guaranty failed to tell them three years eariler that they needed to exchange their bonds for money, suing for fraud - is a federal court claiming jurisdictin in a case based on diversity of citizenship required to apply state procedural law if the outcome in the case would differ based on this decision - yes, the outcome of the litigation in the federal court should substantially be the same as far as legal rules as if it were tried in the a state court - A federal court, exercising jurisdiction based strictly on diversity of citizenship, must abide by any state legal rule that would be outcome determinative if held in state court. - the outcome ina federal should be the same as the outcome that would have happened in a state court, federal courts must apply state laws (outcome determinative test)

Harper v. Virginia state board of elections

- Virginia passed an amendment allowing a state voting tax (poll tax) of about 1.50 dollars - does the imposition of a poll tax violate the equal protection clause of the 14th amendment - yes, violates the equal protection clause in the 14th amendment because it makes the affluence of the voter or payment of any fee an electoral standard - breedlove v. suttles: court held that a poll tax was a reasonable exercise of the state's police powers - lassoter v. northhampton: held that literacy tests were okay to be administered for voting as long as all races were given it - reynolds v. Sims: court held that any infringement of the right to vote must be "carefully and meticulously scrutinized" - Lochner v. New York: tried to regulate the number of hours bakers worked bc of inhaling too much flour, the court infused their own political philosophy of laissez faire economics - businesses should be allowed to do what they want

strategic theory

- a judges vote reflects the worries they have about the reactions their decisions will get from other judges, legislators and the public; they may sacrifice principles for effectiveness or to achieve some goal which may be to further a political agenda or to win re-election -this view as more influence with lower courts and less with higher courts bc lower courts are more worried about being overruled

brown v. board of education (1954)

- african american plaintiffs suing states for denying them equal access to educational facilities under the seperate but equal doctrine, claiming their 14th amendments right had been violated so they were demanding to gain admission to schools attended by white citizens, the separate schools were not equal -was it a violation of equal protection clauses of the 14th amendment - Overrules Plessy v. Ferguson (no stare decisis). Racial segregation violates 14th Amendment Equal Protection Clause ("separate is inherently unequal") - sweatt v. painter: sweatt applied for admission to texas law school, the only one atm, and was denied, he sued under equal protection rights because the quality of the african american law school created for him was bad compared to the existing white school -MclAURIN V. oKLAHOMA STATE REGENTS: difference between educational facilities

Hudson the 14th amendment incorporation

- barron v. baltimore: a wharf owner sued baltimore after his property was damaged by the city, arguing the city violated his right to just compensation under the 5th amendment under the Takings Clause, that government officials cannot damage or take someones property without justly compensating the owners of the property but it was ruled by the supreme court that the 5th amendment restrained the federal government not applicable to the states -13th amendment: outlawed slavery, 14th: provided due process and equal protection, 15th: right to vote - eventually the bill of rights was incorporated to apply to the states - Mapp v. Ohio: determined that the exclusionary rule applied in state criminal court prosecutions because of the 14th amendments due process clause

people v. Belge (1975)

- belge was an attorney representing robert garrow, a serial killer, he had seen the location and bodies of another garrow victim and told no one - charges were filed that he had violated a New York state public health law requiring individuals to report the discovery and location of any dead bodies and belge argued he could not divulge this info under attorney-client privilege - can an attorney who receives info in confidence from a client deemed relevant for an on-ging criminal investigation be required by the court to divulge that info when faced with potential criminal charges - no, under United States v. Funk: confidential communication between an attorney and his client are privileged from disclosure as a rule of necessity in the administration of justice - united states v. richard nixon: constitutional need for production of relevant evidence in a criminal proceeding is specific and neutral to the fair adjudication of a particular criminal prosecution may be frustrates

constitution and federal powers

- born from arguments about how much power the federal govt should have in comparison to the states and if there should be limitations was the bill of rights and the powers of the federal government established in article 1 such as the right to regulate interstate commerce, operate post offices, declare war, and coin money and those powers not enumerated to the federal government were reserved to the states - Articel 1, section 8, clause 18: the power for the federal government 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 US or in any department or officer thereof

National Federation of Independent Business v. Sebelius (2012)

- congress passed the patient affordable health care act 2010 entailing that non exempt individuals failing to maintain a minimum health insurance must pay a tax penalty -whether the ACA exceeded congress' authrity under its powers to lay and collect taxes, to regulate commerce, and to make all laws which shall be necessary and proper - no, yes, yes - congress may tax and spend under article 1 clause 1

Doe I v. Nestle (2014)

- deals with child slavery in Ivory Coast to harvest cocoa, former slaves are suing Nestle for aiding and abetting the child slavery conditions through the Alien tort statute, a US law that allows foreign defendants to sue corporations who are deemed to be within the courts jurisdictional reach - can foreign plaintiffs sue in a US court through the Alien Tort statute a foreign defendant corporation for aiding and abetting child slavery - can the alien tort statute be used when the violations are based on international law? yes

common law post Norman invasion

- english and french customs began to mix - the transition in the courts from local based customs to national "common" law based was slow, occurring gradually overtime from 1066 to 1200 A.D - Curia Regis: established by King Hnery 1 around 1100 A.D members of the curia were required to travel around to visit and supervise the local courts - established a royal court made up of members from the curia, becoming the court of king's Bench. Judges on the royal court would apply the same laws based on slowly evolving legal rules - the tradition of write was continued, often used to confer jurisdiction and to direct the court to resolve disputes, often specifying the exact procedures to be followed. These writs would also be recorded in registers, establishing the first law libraries - in 1215 King John was forced to sign the magna carta which granted citizens their rights and the power of self governance

phenomenological theory

- focuses on the experience of judges as it presents itself to their conscious minds, what does it feel like at the moment the judge makes a decision in a case

sociological theory

- for higher appellate courts, there may be several judges that have to work together to decide a cade and the composition of the panel - based on the various judges diverse backgrounds, political views and personalities - may affect their decisions - most judges dont like to dissent bc it frays the decision and lessens the strength of the opinion and the likelihood that their decision will be followed and respected by lower courts - some judges may moderate their views overtime in order to get along (or fear of angering another judge)

Gideon v. Wainwright (1963)

- gideon alleged to have broken into a pool hall and stole money, was arrrested and prosecuted based on an eye witness . He requested and was denied an attorney because florida did not require attorney's for defendants charged with a non-capital offense. He filed a habeus corpus petition and was heard by the supreme court under the clause that his 6th amendment right to counsel in criminal prosecutions were violated - was gideons 6th amendment right t counsel when charged with a criminal defense violated and is it a fundamental right under the 14th amendment due process clause - Extends to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay. Gideons 6th amendment was violated and it is a fundamental right protected under the 14th amendment - Betts v. Brady: was reversed but has held that counsel should only be appointed under special circumstances like illiteracy, youth and a hostile public - Powell v. Alabama: established a precedent that defendants lack skill and knowledge to adequately maneuver their own defense in a court setting

jursidction

- have to determine specifically which state or federal court will hear the case, the power of the court to determine the merits of a dispute and to grant relief (important bc different courts apply different laws)

Helicopteros Nacionales de Colombia, S.A. v. Hall (1984)

- helicopter crashed in peru killing 4 americans from texas, it is a Columbian corporation. the corporation made a contract in texas with bell training academy for training etc, helicol has never been authorized to conduct business in texas and never sold products in texas -are there enough contacts between helicol and the state of texas in order for the court to be able to claim general jurisdication - no, there was not enough sufficient activities that helicol conducted in the state to be deemed general jurisdiction - perkins v. benguet consolidated mining co: transferred his company for the phillipines to ohio where he had bank account and an office business, there was considerd to be general jurisdiction over the defandant because the corporation had continuous and systematic presence in ohio - rosenburg brothers v. curtis brown co: purchases and related trips standing alne, are not a sufficient basis for a state's assertion of jurisdiction

united states. v Lopez (1995)

- high school senior alfonzo carried a concealed weapon to shool annd was charged federally under the gun free school zone act of 1990 -is the 1990 gun free school zones act forbidding individuals from knowingly carrying a gun in a school zone, unconstitutinal because it exceeds the power of congress t legislate under the commerce clause? - yes unconsitutional because in carter v. carter coal company held that congress had exceeded its authority under the commerce clause - gibbons v. ogden: congress' authority under the commerce clause as complete in itself and to be exercised to its utmost extent without any limitations except those prescribed in the constitution

stare decisis

- it is a traditional art of judicial decision; a traditional technique of deciding with reference to the judicial decision in the past; a traditional technique of developing the grounds of decision of particular cases on the basis of reported judicial experience - sometimes past decisions are wrong, so not following the doctrine can be preferred although with caution

economic theory

- judges are rational, self-interested actors seeking to maximize their payoff and/or efficiency on individual cases based on whatever incentives or disincentives are driving their decisions (motivated by a preference for leisure, by income)

pragmatic theory

- judges base their decisions on the potential consequences of the case, decisions are based on whatever outcome they believe will achieve the best result - may completely ignore the law and precedent regarding the issues before them and go with what feels rights

carnival cruise lines v. shute (1991)

- mrs.shute got hurt on the ship, and sued carnival in a federal court in washington but carnival filed a motion for summary judgment, a petition for the court to end the case sooner based on the failure of the plaintiffs tomake their case bc carnival thought the court lacked jurisdiction in washington . The Shutes agreed to a contract regarding a forum selection clause which required all lawsuits against carnival to be filed in florida. Shutes appealed bc they were not given the opportunity to negotiate the contract - is a forum selection clause that was not freely negotiated still enforceable - yes, it is considered a non negotiable contract, it is not the subject of bargaining, it is purely routine and identical to all other passengers - The U.S. Supreme Court upheld a federal court's ruling that dismissed a personal injury claim by a resident of the state of Washington who was injured while being a passenger on a Carnival Cruise. The Court concluded that the passenger ticket was a contract between the passenger and Carnival Cruise Lines and that the ticket contained a forum selection clause whereby parties agreed to litigate any disputes in Miami, FL (where Carnival's HQ is located).

hanna v. plumer (1965)

- plumer was a maccachusetts citizen and hanna, an ohio citizen got into a car accident that was plumers fault. plumer died shortly after so hanna sued under damages to herself and her vehicle caused by the accident. Hanna sued the executor of the defendants estate - the lawyer in charge of his will, filed in federal court based on diversity of citizenship and was served the the defeandants wife. the lawsuit was dismissed under summary judgement to have the case thrown out bc the executor was not properly notified of the law suit , plaintiff appealed - was the federal court presiding over a case based on diversity of citizenship correct for applying the state rule regarding service of process, instead of the federal rule bc the state rule was outcome determinative - no, federal court should have applied federal rule bc the federal rule did not exceed congress's authority under a newly established law, the rules enabling act

forum selection clauses

- refer to contractual terms usually negotiated to by the parties in a contract, a specific provision in a contract stipulating the exact location or court where venue will exist in the event of a breach of the contract or regarding some form of liability in a tort case - motor ship bremen v. zapata off-shore co (1972) the previous inclination of the courts was to deny forum selection clauses out of fear that the foreign courts would be considered less fair, the court reasoned that this precedent was no longer valid so long as the parties freely agreed to the forum selection clause

Wickard v Filburn (1942)

- regulation of wheat prices on the market, Agricultural act of 1938 to limit the amount land farmers could use to grow wheat, Filburn grew more wheat than he was allowed but he claimed he was not selling the excess wheat and it was for his family to eat - The Court maintained that Congress' power extends even to intrastate commerce if interstate commerce could be affected by it. Also stated that individual non-activity in the marketplace is actionable if that activity could have a substantial effect on interstate commerce.

some of the laws enacted to prevent illegal corporate (as well as individual) behavior include

- sherman antitrust of of 1890 - title VII of the civil rights act of 1967 - occupational safety and health act of 1970 - foreign corrupt practices act of 1977 - american with diabilities act of 1990: law that prohibits employers from discriminating against an individual based on his or her disability

organizational theory

- some judges are believed to act as agents of their principals, may be a conflict with the role of the judge as an independent actor and their principals - the govt, public that elects them or the specific politician that nominated them to their position - have diverging interests, the principals will try to minimize that divergence to gain some control over the judge and judges will try to resist

removal

- th process of transferring a case in a state court to a federal court, any civil action brought in a state court that could originally have been filed in a district court is remoavble -the right of a defendant who is sued in state court as long as the original jurisdiction exists in federal court, requires presenting a federal question or claiming diversity of citizenship -start the removal process within 30 days - Avitts v. amoco production co (1995) in cases where there is no diversity of citizenship, inn order for the defendants request for removal to be granted, the plaintiff must have raised a federal question in their initial complaint

cain v. george (1969)

- the Cain's infant son died of carbon monoxide poisoning, claimed it was due to an improperly installed gas heater but a chair has been pushed to close to the heater causing smke and that creates the carbon monoxide - should the testimony of a witness regarding info whic they have knowledge be considered to be hearsay -no, not hearsay bc it was relevant on the issue that carbon monoxide came from the chair and the witnesses testimony who had stayed in the room without complaints helped prove that it was the parents negligence

washington v glucksberg

- the plaintiffs were Washington state doctors suing the state for the 1994 state law prohibiting the assistance of suicide with no medical exceptions arguing it violated patient's right to end their own life the way they deemed fit - Should the right to commit suicide be a fundamental right making the 1994 law in violation of an individuals 14th amendment to due process - This 1997 Supreme Court case held that the right to privacy protected by the 14th Amendment Due Process Clause does NOT include the right to assisted suicide ("euthanasia"), - Cruzon v. Missouri department of health: right to reject unwanted procedures (does not relate to the right to kill oneself but right not to be subjected to battery)

Common law

- throughout most of its history England has had a legal system - prior t 1066 and the Norman invasion england was different - England was separated into shires based on population and these shires were then separated again into hundreds - there was no central legislator or court, the king would utilize the shires for military, administrative, and judicial pruposes. These hundreds were overseen by a reeve and the shires were overseen by a shire reeve - hundreds would hold court once a month to deal with both civil and criminal matters, each shire would also hold court twice a year and it was overseen by the shire reeve and a bishop. The shire court would handle all criminal, civil and religious matters deemed too difficult for the hundred court - both the hundred court and the shire court would base their decisions on local customs, which would differ from shire to shire and there was no appellate process

change of venue

- venue requirements determine where judicial authority should be exercised after establishing personal and subject matter jurisdiction, there is no requirement that venue must reside in one location - forum non conveniens: the decision to transfer a case is usually based on convenience such as for the obtaining and presenting of ou tof state witnesses - america online v. superior court of alameda county (2001) this decision may be based on the grounds that a transfer or a failure to transfer could constitute a violation of public policy - piper aircraft v. reyno (1981) the court must weigh the private and public interests of both parties to determine which court is more convenient and mere inconvenience of law is not enough by itself to stop a transfer from occurring - hoffman v. blaski (1960): the district where the case is being transferred must be one in which the action might have been brought initially by the plaintiff, the court receiving the case must have jurisdiction to hear the case- no jurisdiction, no case

international shoe co v. washington (1945)

- washington state has a corporate tax that requires companies in the state to pay on their profits earned from that business, international shoe co rejected these taxes bc they are not a resident of washington and do not have registered agents within the state - can washington state claim personal jurisdiction over a foreign corporation solely based on the activities of a few of the corporations emplyees without violating the corporations 14th amendment right to due process - yes, they can claim personal jurisdiction t collect tax because of the privilege of employing appellants salesmen within the state and has a sufficient number of contacts. the corporation regularly conducts business in that state and enjoys the benefits and protections of the laws in th estate they are conducting their business -Pennoyer v. Neff, court can claim personal jurisdiction over a defendant if the defendant is presently located within the state

subject matter jurisdiction

- where the court has been vested with a particular subject matter (such as taxes, small claims) in which they can hear disputes. two main ways to have subject matter jurisdiction includes the federal question and diversity of citizenship issue

a principle (type of precept)

- where the set of circumstances are ambiguous and no definite action is able to be automatically determined, the court will follow a three-step process 1. a generalized type of situation of fact is defined and established, particular states of fact are to be referred to this type 2. if the specific facts come within the defined limits, a series of rules or even of standards become applicable 3. if the facts of a given controversy do not cme wholly within the limits od the established type, a basis is afforded for deducing a rule from its logical presuppositions

psychological theory

-a judge's preconceptions and inherent biases may color how they read a statute or interpret a chain of events (whether or not they are aware of it), we all see and understand the world differently and how our perspectives differ may matter a lot in the outcome of individual cases

two main types of jurisdiction for civil matters

1. general jurisdiction: the power of the court to hear any kind of case involving the defendant usually the state where the business is incorporated or maintains its corporate headquarters (this applied to individuals as well being heard by a lower state court such as a court of common please, superior court) - specific jurisdiction: the power of the court to hear only specific cases, based on the specific actions committed by the defendant related to the forum state

legislative process

1. pass through several committees before it can even be put up on the floor for a vote 2. if it passes by a majority in the house and senate it can then go to the president to sign (where they chose to sign or veto it) - if vetoed the bill will go back to congress who can overrule the president by a 2/3 vote

personal jurisdiction over individuals, three main methods to determine if a specific state court has jurisdiction in a civil matter over a non-resident of that state

1. service of process: where the individual has been personally served a summons to appear in court while they were physically located in the state - burnham v. superior court (1990): this is sufficient even when the individual has no other ties to the state 2. consent: the individual agrees to appear in court in that state by showing up to the court without informing the court that is is specifically to argue the merits of jurisdiction, committing a tortious or criminal act in that state (the only way to obtain jurisdiction in a criminal case) and driving a motor vehicle in that state and getting into an accident 3. sufficient minimum contacts: where the individual has been found to have sufficient ties to the forum state - hawkins v. masters farms 2003, a federal court in kansas found there was sufficient ties to a state when the individual was domiciled in the state- where the individual lived and intended to stay In order to determine if a specific federal court has jurisdiction over an individual the court, in addition to the above must also have a federal question or find diversity of citizenship. if the court assumes the case based on diversity, the court must also find that the amount of the controversy exceeds 75,000 dollars Federal courts require personal and subject matter jurisdiction

analytical positivism

Law is a "self-sufficient system of legal-rules" issued by a sovereign government according to "duly established procedures" that are not dependent on extraneous considerations, such as reason, ethics, morals, or even social consequence

law as power

Law is merely the product of those in power regardless of "whether it is socially good or bad." Might makes right.

good samaritan laws

Massachusetts General law Section 40 whoever knows that another person is a victim of aggravated rape, murder, manslaughter or armed robbery and is at the scene of said crime shall to the extent that said person can do so without danger or peril to himself or others, report said crime to an appropriate law enforcement official as soon as possible

Mechanical Jurisprudence

argued by roscoe pound which was a willingness of judges to make strict legal decision in cases which might result in unjust outcomes and without regard to the greater social impact

policy

a body of philosophical, political and ethical ideas as to the end of law, and as to what legal precepts should be in view thereof, held consciously or subconsciously

precedent

a body of traditional ideas as to how legal precepts should be interpreted and applied and causes decided and a traditional technique of developing and applying legal precepts whereby these precepts are eked out, extended, restricted and adapted to the exigencies of administration of justice

precepts

a number of legal precepts more or less defined

trial courts

all trial courts are courts of original jurisdiction, meaning that they are the first place a case will be heard (where the case will originate), can be at the state or federal level - Louisville and nashville railroad v. mottley (1908) in order for a civil case not based on diversity to be heard at the federal level, the initial complaint must show prima facia evidence of a federal issue, if the complaint does not present a federal question the case will be heard in a state court (well pleaded complaint rule) - united states v. hudson and godwin (1812) in order for a criminal case to be heard at the federal level congress must have passed a statute specifically making an act a federal criminal offense. all of these crimes will be based on one of the powers authorized in article 1 section 8 of the constitution

specific clauses to demonstrate the limits of the federal governments power (congress)

article 1, section 8, clause 1: to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the US article 1, section 8, clause 3: to regulate commerce with foreign nations and among the several states, and with the Indian tribes article 1, section 8, clause 18: 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

objectives of law

considerations judges may take into account when determining how to base their decisions

three level for the federal and state court systems

district courts (94 federal district courts lowest level) <courts of appeal (13 federal appellate courts intermediate level) < supreme court (1 federal supreme court highest level)

erie doctrine

erie railroad co v. tompkins (1938) federal court applied an ordinary negligence standard against the railroad company which was the standard procedure in federal negligence cases; however the state of pennsylvania required a wanton negligence standard which was a higher bar to prove - the precedent Swift v. Tyson (1842) regarding whether to follow state or federal law was to ignore state law and apply federal law, believing federal judges were more than capable of ruling on issues concerning general common law, was overruled that it was unconstitutional because it violated the equal protection law - black and white taxicab v. brown and yellow taxicab (1928) the doctrine established in Swift rests upon the assumption that there is a transcendental body of law outside any particular state but obligatory within it unless and until changes by statute but law in the sense in which courts speak of it today does not exist without some definite authority behind it

due process of law

fair treatment through the normal judicial system, especially as a citizen's entitlement - 5th and 14th amendment - the reason was that the colonists were afraid of the power of centralized authority so the bill of rights was forces to be adopted along with the original articles of the constitution as a fail-safe mechanism to protect individual rights - after the civil war congress passed the 14th amendment which required the states to also recognize the rights of all citizens and afford them both 1) due process of law and 2)equal protections

legal ethics

hugh caperton v. A.T. Massey Coal Co inc (2009) where a judge refused to recuse himself in a case involving a highly infuential campaign contributor who had donated more than all other contributors combined

incidents like the failure of Enron, Worldcom and the fraud associated with the 2008 financial collapse

indicates that business ethics are possibly declining

judicial decision making

nine theories how judges make legal decisions

law is composed of three things acc to roscoe pound

precepts, precedent, policy

legalist theory

preferred theory of practicing lawyers and judges, judicial decisions are determined by the law conceived of as a body of pre-existing rules found stated in canonical legal materials such as constitutional and statutory texts and previous decisions of the same or a higher court, or derivable from those materials by logical operations - legalists like to believe that outside factors such as ideology, political beliefs, personal experiences and personality issues amongst the judges play no role in deciding legal cases and thus have no place in law

choice of law

regard to which law should be applied in a particular dispute - the decision where a case should be brought can be decided on a voluntary or involuntary basis but the decision is usually based on the convenience for one of the parties, public policy of the state, or on the grounds that a transfer or a failure to transfer would be a violation of one of the parties substantive due process rights, more common in criminal procedure - three main mechanisms: change of venue, forum selection clause and removal

rule of law

where a specified set of circumstances are clearly defined,the court will have a definite action that follows ( if a happens, then the court will do b )

personal jurisdiction

where the court has the power to hear disputes involving particular plaintiffs or defendants (human or corporation)

in rem hurisdiction

where the court has the power to hear disputes involving property (not the individual) located within its geographical boundaries