Intro to Law Test 1

What are the functions of law?

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What are the sources of law in the American legal system (constitutions, statutes, case law)

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What is the difference between a crime and a civil offense? What is a tort?

A civil suit involves a dispute between private individuals involving either a breach of an agreement or a breach of a duty imposed by law. A criminal action is brought by the government against an individual who has allegedly committed a crime. cCrimes are classified as treason, felonies and misdemeanors. In a civil suit, the court attempts to remedy the dispute between individuals by determining their legal rights, awarding money damages to the injured party or directing one party to perform or refrain from performing a specific act. Tort law establishes standards of conduct that all citizens must meet. A plaintiff sues in tort to recover money damages for injuries to his or her person, reputation, property or business caused by a breach of a legal duty. A tort is any wrongful act, not involving a break of an agreement, for which a civil action may be maintained. This act can be intentional or unintentional.

Trial v. appellate courts

A trial court hears and decides controversies by determining facts and applying appropriate rules. They introduce evidence and present arguments. Appellate courts review the decisions of trial courts. Usually, an appeal can only be taken from a lower court's judgment. Appellate review may be permitted to resolve a controlling question of law before the case itself is actually decided. 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. An appellate court bases its decision solely on the theories argued and evidence presented in the lower court. It does not retry the facts of the case. It only uses the record of the proceedings in the lower court.

Chicago v. Morales (1999

Chicago anti-gang ordinance overturned as violation of substantive due process.

What elements are required for a valid contract? What are the types of contracts into which people can enter?

Contractual terms are not imposed by law. A contract is the legally enforceable agreement itself. There are three parts to every contract: offer, acceptance and consideration. An offer is a communication of a promise, with a statement of what is expected. Acceptance is the evidence of assent to the terms of the offer. Consideration is the inducement each party has to enter into an agreement. Only legally enforceable obligations are called contracts. Contracts may be oral, written, express, implied in face, or implied in law. In Suggs v Norris, the trial court permitted the jury to find an implied in law agreement from the facts of the case, even though there was no proof of an oral agreement or written document evidencing a contract

Land v. Yamaha Motor Corporation (2001):

Court using Erie Doctrine ruled that Indiana law applies to settlement of dispute.

Washington el al v. Harold Glucksberg et al (1997

Does the 14th Amendment due process clause give a physician a substantive due process right to assist in the suicide of a mentally competent, terminally ill patient? Court ruled that recognizing such a right is contrary to long-established law and custom.

Cheap Escape v. Haddox (2008)

Does the Franklin County court (Ohio) have subject matter jurisdiction in this case?

What is due process? What is the distinction procedural due process and substantive due process? The role of the Fifth Amendment and the Fourteenth Amendment of the U.S. Constitution in protecting due process.

Due process is a notion that government has to treat people fairly when attempting to deprive them of life, liberty or property. The determination of fairness is determined on a case by case basis. The fifth amendment is used to place limits on the federal government. It was intended to control congress. The 14th amendment made state governments to have to provide due process of law and equal protection to all people. These operate only as restraints on government. Substantive law refers to the law that creates, defines and regulates rights. It defines the legal relationship between the individual and the state and among individuals themselves and is the primary responsibility of the legislative branch. Substantive due process is used to refer to the debate over what should be included within the sope of the due process clause of the 14th amendment. Procedural law prescribes the method used to enforce legal rights. It provides the machinery by which individuals can enforce their rights or obtain redress for the invasion of such rights. Procedure due process plays a major role in criminal cases, placing limits on investigations and such.

Conflict of laws. Which state's law should apply when more than one state is involved in legal action?

Every person within the territorial limits of a government is bound by its laws. When the facts of a case under consideration have occurred in more than one state or country, and a court must make a choice between the different states or nations, a conflict case is presented. A court must then decide whether to apply its own substantive law of the state where the events occurred of possibly the law of some other state. Always remember: a state court always follows its own procedural law, even when it decides to apply the substantive law of some other state.

Diversity of citizenship rules

Exists if a suit is between citizens of different states or between a citizen of a state and an alien and if the amount in controversy exceeds 75000.

Venue, forum non conveniens

Forum non conveniens: the place where the court does case is inconvenient---can transfer to another court.

Catherine Gebbia v. Wal-Mart Stores, Inc.

Given that the parties were citizens of different states, there was no issue as to whether the total diversity of citizenship requirement had been met. Gebbia, however, had not specified a specific amount of damages when she filed her complaint in state court. Thus, for purposes of removal, Wal-Mart had to allege that the damages exceeded $75,000 exclusive of interest and costs. The plaintiff, 18 days prior to the trial, filed a motion requesting that the case be remanded to the state courts because the amount of damages she would be seeking was less than the jurisdictional amount. After a bench trial, the court awarded judgment to the defendant and the plaintiff appealed to the U.S. Court of Appeals for the Fifth Circuit. The appeals court affirmed the district court, which had denied the plaintiff's remand motion.

Full faith and credit clause of U.S. Constitution.

Important to know that each state in US is a distinct sovereignty. The full faith and credit clause states that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state". Thus, the constitution requires the states to cooperate with each other and binds them together into one nation. It helps to preserve the legal differences that exist from state to state. There are some exceptions. The requirement does not apply if the judgment issuing court lacked jurisdiction over the subject matter or person of if the judgment was fraudulently obtained. It "puts its teeth" into the doctrine. Once a valid judgment has been rendered in one jurisdiction, the claims cannot be relitigated by the same parties in a different jurisdiction. A state can refuse to grant full faith and credit to another states judgment under limited circumstances. for example, when the issuing court has failed to follow the mandates of the us constitution. Case to note: Finstuen v Crutcher

Kopp v. Kopp (2002):

Is the $75,000 threshold reached necessary to make this a diversity of citizenship case?

Plaintiff's choice of forum

Plaintiffs may want to choose state or federal forum because one is more attractive, more convenient, more influenced by reputation, socioeconomic factors, or if rules are more liberal. Case to note: Kopp v Kopp

Katko v. Briney (1971

Spring gun case. Did Briney use excessive force in protecting an abandoned dwelling and its contents from trespass and theft?

Standing to sue

Standing must be real not hypothetical only the aggrieved parties can sue the issue must be live rather than moot must raise legal claim rather than any other claim.

Explain the terms "precedent" and "stare decisis."

Stare decisis (STAND BY DECISIONS) is a judicial policy that guides courts to coming to a specific decision. It normally requires lower level courts to follow legal precedents that have been established by higher courts. following precedent helps to promote uniformity. A decision by USSC is binding on state courts. It helps to not have every single possible law listed out.

Jurisdiction (subject matter jurisdiction, personal jurisdiction, in rem jurisdiction)

Subject matter jurisdiction: based on certain legal questions or controversy. In personum jurisdiction: in the person in jurisdiction in rem jurisdiction: jurisdiction dealing with property in jurisdiction Courts cannot given itself jurisdiction, parties cannot confer jurisdiction.

Distinction between the holding and dicta (dictum) in a case.

The holding of a case is the rule of law that applies to the case. It is used to solve a legal controversy. Comments that are not necessary to support the decision are called dictum, these are extraneous judicial expressions. They have no value as precedent because they do not fit the facts of the case. The distinction happens because it is necessary to establish that only the issues before the court have been argued and considered. Dictum is not binding but persuasive.

Gilmore v. Bank of New York.

The plaintiffs in the next case filed suit in state court against the defendants after the plaintiffs defaulted on a loan and subsequently lost their home as a result of foreclosure. The defendants, not wishing to litigate in state court, sought to remove the case from the state court to the U.S. District Court for the Southern District of California. The defendant's sole basis for establishing their right to remove this matter to federal court was the plaintiff's claim that the defendants had violated a federal statute, 12 U.S.C. §§ 2607,the Real Estate Settlement Procedures Act (RESPA). The plaintiffs, who had made claims based on violations of state law as well as RESPA, responded by filing a motion in federal court in which it asked the judge to dismiss the RESPA claim and remand the case back to the San Diego Superior Court. The defendants objected, claiming the plaintiffs were manipulating the judicial systems and engaging in "forum shopping."

Explain federal supremacy as a doctrine of our legal system.

US government divides powers between federal and state government. Whenever there is a conflict, state laws must yield to federal acts to the extent of the conflict. This requirement is expressed by the Supremacy Clause in article 6. Under this clause, Congress can enact legislation that may supersede state authority and preempt state regulations. The preemption doctrine is based on the Supremacy Clause. State laws that are contrary to congressional objectives in a specific area are invalid.

Explain vagueness and overbreadth as violations of substantive due process.

Vagueness is when legislations fails to control the police exercise of discretion and fails to provide citizens with fair notice of what the law prohibits. Overbreadth exists where a statute is insufficiently focused. Thus, a disorderly conduct statute would be overly broad if it includes within its scope conduct that is clearly criminal as well as conduct that is protected by the first amendment. Court will declare unconstitutional statutes and ordinances that are overly broad and/or too vague. Law must be written with sufficient precision of they will fail substantive due process requirements

Smith v. Idaho (2009):

Was Mr. Smith denied his procedural due process rights when the State of Idaho classified him as a Violent Sexual Predator without him the opportunity for a hearing at which he could contest the designation.

curia regis

a 12th century royal court established by Henry I which eventually became known as the Court of Kings/ Queens Bench

bench trial

a case is litigated before a judge instead of a jury

declaratory judgment

a determination or decision by a court, which states the rights of the parties to a dispute, but does not order or coerce any performance relative to those rights. the procedural and substantive conditions of the usual action must be presetn. the relief that the court grants is the distinguishing characteristic.

injunction

a flexible, discretionary process of preventive and remedial justice, which is exercised by courts that have equity powers. courts issue injunctions when it appears that the ordinary remedy usually provided by law is not a full, adequate and complete one.

in camera

a hearing held in a judge's office of in a closed courtroom

pretrial conference

a meeting between the judge and the counsel for the parties, preliminary to the trial of a lawsuit

motion for summary judgment

a motion made to dispose of controversies that can be decided without a full trial because either no genuine issues of material fact exist or because facts necessary to prove the opponents case are not provable or are not true

utilitarianism

a philosophical approach that focuses on the social usefulness of legislation rather than on natural law ideas of goodness and justice

answer

a pleading in which a civil defendant responds to the allegations of the complaint and states the defenses on which he/she intends to rely. ORRRR a statement under oath in response to written interrogations

complaint

a pleading that is filed to commence an action

discovery

a pliant method by which the opposing parties to a lawsuit may obtain full and exact factual info concerning the entire area of their controversy.

voir dire

a pretrial oral exam of prospective jurors conducted to determine their qualifications

detainer

a writ requiring that a person be retained in custody

mandamus

a writ that commands a public official to perform a non-discretionary duty

capias

a writ that orders law enforcement to take a person into custody and bring them before the court

writ of subpoena

a writ that requires a person to appear in court to give a testimony

sociological jurisprudence

adherents of this approach believe that law is not just the formal rules, but also the informal rules that actually influence social behavior. the sociological school maintains that law can only be understood when the formal system of rules is considered in conjunction with social realities

historical jurisprudence

adherents of this philosophical approach believe that law is only valid to the extent that the will of the sovereign is compatible with long-standing social practices, customs and values

analytical positivists

adherents of this philosophical approach view law as a self sufficient system of legal rules that the sovereign issues in the form of commands to the governed. judgments about the intrinsic morality of the sovereigns commands are views as extra-legal

en banc

all judges assigned to a court hear the case as a group

chancellor

an equitable court judge or a judge exercising the powers of an equitable court judge

actus reus

an overt wrongful act

misdemeanors

any crime or offense greater than an ordinance violation but not amounting to a felony

felony

any criminal offense for which a defendant is subject to execution or may be imprisoned for more than one year.

Robey v. Hinners (2009):

application of Kentucky's long-arm statute. Did Kentucky have personal jurisdiction over Robey, a Missouri resident, based upon minimum sufficient contact between Kentucky resident and Robey?

Finstuen v. Crutcher (2007):

application of the U.S. Constitution's Full Faith and Credit clause. Must Oklahoma accept as legal an adoption under California law which conflicts with Oklahoma law? Yes.

Gonzales v. Raich (2005)

case involving legalization of medical marijuana in California. Raich/Monson argue that the federal statute outlawing use of marijuana does not apply to those exceptions a state may choose to carve out, such as the medical use of marijuana, when the commerce in question is entirely local. Supreme Court disagreed, ruling that even though local, the commerce in medical marijuana in California has a significant impact on interstate traffic in marijuana and therefore is subject to the restrictions of federal law.

Video Software Dealers Association v. Schwarzenegger (2009):

court applied strict scrutiny test to a state's effort to limit a First Amendment right. State must establish a compelling state interest and adopt least restrictive means in curtailing a First Amendment right.

TJ Hooper (1932

court ruled that Hooper was not seaworthy because it was not equipped with an AM radio to receive weather reports. No prior precedent to guide court.

mens rea

criminal state of mind

judgment

determines the rights of the disputing parties and decides what relief is awarded

Strunk v. Strunk (1969):

kidney transplant case. No prior precedent to guide the court.

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.

demurrer

motion to dismiss

court of equity

originally a court of equity headed by the chancellor that came into being in the 14th century in england and lasted until 1875. today, most states confer on their judges both the powers traditionally exercised by law judges as well as the powers traditionally exercised by chancellor in the equity room

Long-arm statutes

permit the exercise of personal jurisdiction over nonresident defendants who have had sufficient minimum contacts with the forum state. It allows the plaintiff to serve the forum state's summons on the defendant in some other state. When a plaintiff successfully uses this, the defendant is required to return to the forum state and defend the lawsuit.

embezzle

person uses someone elses money for his or her advantage

pro se

person who appears without a lawyer and chooses to represent himself appears pro se

alternative dispute resolution

refers to a variety of techniques adherents claim can in some cases resolve disputes more quickly, at less cost and with less acrimony than would be true if the case were litigated in a court

dicta

statement by a judge concerning a point of law that is not necessary for the decision of the case in which it is stated. usually, dictum is not as persuasive as its opposite

jurisprudence

study of legal philosophy

magna carta

the first magna carta was issued in 1215 by the english monarch king john. it is the original source of the protections imbedded in the Due Process clauses found in the constitution

certiorari

the petition for a writ of cert is the legal vehicle used to obtain review from the USSC.

holding

the rule of law that the court says applies to the facts of the case

writ of summons

the summons warns the defendant that a default judgment can be awarded to the plaintiff unless the defendant responds with a pleading within a specific period of time

Suggs v. Norris (1988):

was there an implied contract between Suggs and Norris? Was this contract illegal (contrary to public policy) because they lived as man and wife though unmarried?

Hubbard Manufacturing v. Greeson (1987):

where the law of two different states might apply, which state's law should take preference? "Lex loci" or significant relationship rule? Accident occurred in Illinois, but most significant relationship between parties was with Indiana. Accordingly, Indiana law applies.

State v. Butler (1969)

which precedent case should apply to this case, Miranda or Walder. Court drew a distinction between the use of a statement made without benefit of Miranda rulings when used to "impeach" the witness v. use of the statement in the prosecution's "case in chief." Walder is the controlling precedent.