BLAW 341 (Nittany Notes)

Intentional Torts Against a Person

assault and battery

5th Amendment

government cannot deprive someone of their "life, liberty, or property" without due process of law

Requirements to Make a New Amendment

- 2/3 approval of the House and Senate - ratified by 3/4 of the state legislatures (of 10,000 amendment proposals, only 33 have passed the first requirement and only 28 passed completely)

Negotiation

- cheapest and easiest form of ADR - good for small disputes that don't involve a lot of money - must be assisted by 3rd party - understand opponent and his/her point of view - usually isn't binding

Arbitration

- least cheap form of ADR - more formal and extensive procedure - may be binding - huge efficiency advantages for business - individuals may have less flexibility than litigation

Mediation

- this form of ADR takes more time and money - 3rd party takes more active role - 3rd party can receive confidential information - may reduce posturing (caucusing) - generally not binding

Reasons to Choose Alternate Dispute Resolution over Litigation

- useful to downplay lawyers - litigation is costly (both sides are "losers") - juries are unpredictable - subsequent litigation still possible - time (litigation is more time consuming) - secrecy in settlement (everything is public in litigation)

Bills of Rights

limits the power of government so that they do not infringe on people's rights, no legislation can conflict with this since it is in the Constitution

Requirements for Personal Jurisdiction for Out of State

long arm statute and "minimum contacts"

Federal Question Cases

may be based on issues arising out of the U.S. Constitution or out of federal statutes (ex: cases involving immigration, sexual harassment, discrimination in the workplace)

Justiciable Controversy (Ripe for Review)

must be an actual case that is ready for review now, not an incident that happened years ago and you decided you wanted to sue now

Zippo Sliding Scale Test

must distinguish between clear jurisdiction, middle ground (possible jurisdiction), and passive site (no jurisdiction)

Light Alternate Dispute Resolution

negotiation, mediation, or arbitration

7th Amendment

not all amendments have been selectively incorporated to the states (ex: this amendment's right to a jury trial in civil case arising under the common law for claims over $20)

Battery

offensive, unjustified touching of one another without consent (ex: punching someone, shooting off gun) **getting shoved is offensive touching but not battery**

Requirement of Overturning an Amendment

only way is by adding a new amendment to the Constitution

Exception to Discovery

only way you wouldn't have to answer is if they asked you to divulge information you talked about with a lawyer, doctor, or priest

Appeals Court

panel of judges that review record of the case that is being appealed (no new trial), only deals with questions of law, not questions of fact

Law in Trial Court

paying monetary damages

Assault

placing another in immediate apprehension of fear, doesn't necessarily involve touching (ex: posing with clenched fists, pointing a gun at someone)

3 Governing Sources of State Courts

trial court (district court), appeals court, and supreme court

Appeal

5th step in litigation process

Class Action

6th and final step in litigation process, can opt-out

Tort

a civil wrong that's not a breach of contract

Statutory Laws

laws created by legislatures, Federal Legislative Enactments and State and Local Legislative Enactments

Stare Decisis

"let the decision stand", obligation of courts to honor past precedents

The Litigation Process

1. complaint 2. answer 3. discovery 4. trial 5. appeal 6. class action

3 Elements to Surviving Commercial Speech

1. government must show there is a "substantial government interest" 2. its regulation directly advance the interest 3. its manner of regulation is not more extensive than necessary to serve the interest

Requirements for Judicial Review (Getting into Court)

1. jurisdiction (both personal and subject matter) 2. standing of the parties 3. justiciable (ripe for review)

Exceptions to the 1st Amendment

1. lewd and obscene language (sexual in nature) 2. profanity 3. libel and slander 4. insulting, fighting, and dangerous words (ex: yelling fire in a crowded movie theater)

Complaint

1st step in litigation process, starts the lawsuit, jurisdiction over the parties and subject matter

Answer

2nd step in litigation process, certain defense required

Discovery

3rd step in litigation process, getting info about other side, can ask anything and you must answer, may ask you to provide documents, takes a very long time (extremely liberal)

Trial

4th step in litigation process, could take 3-5 years to be solved, only 5% of civil cases get this far

3 Branches of Government

legislative, executive, judicial

16th Amendment

created to undo a Supreme Court case, ratified in 1913 to overrule 1895 decision that said income tax was unconstitutional

Substantive Law

creates rights and duties and defines legal relationships

Procedural Law

creates rules or processes by which those rights and duties are enforced

The Civil Rights Act (CRA) of 1964

de-segregated public accommodations outlawing states' Jim Crow Laws (Heart of Atlanta Motel vs. U.S.)

Clear Jurisdiction

defendant does business on the Internet (ex: enters into contracts with residents of another state or country)

Affectation Theory

Congress can regulate anything that affects interstate commerce, even if it didn't involve movement across state lines (NLRB vs. Jones and Laughlin (J&L) Steel Company)

Personal Jurisdiction over a Corporation/Determining Minimum Contacts

International Shoe vs. Washington (1945) The International Shoe company didn't have an office in Washington state, but traveling salesmen would go there solicit shoe orders, and ship the shoes to that state. This was enough contacts to establish minimum contacts in Washington. ****you can be sued in the states that you do business in****

Common Law

law created by the courts

Trial Court

deals with civil (law and equity) and criminal matters, parties file lawsuits/complaints seeking to protect their property rights or redress a wrongdoing

Primary Sources of U.S. Law

U.S. Constitution and State Constitutions

26th Amendment

created to undo a Supreme Court case, lowered the voting age from 21 to 18 (created during Vietnam War when guys were wondering why they were being drafted but couldn't vote for the people that were sending them to war)

14th Amendment

created to undo a Supreme Court case, passed in reaction to the Dred Scott case, which refused to give citizenship to African Americans

Commercial Speech

advertisements (given less protection than political speech)

Alternate Dispute Resolution (ADR)

alternative to U.S. Courts, isn't as aggressive as litigation

Personal Jurisdiction Within a State

between a two people within a state's boundaries (ex: a car accident with someone from Erie and someone from State College)

Executive Branch

branch of government that is broken down to the President and Vice President

Judicial Branch

branch of government that is broken down to the Supreme Court

Legislative Branch

branch of the government that is broken down to Congress

Jurisdiction

businesses engage in transactions in many states, creating complicated procedural issues

Equity in Trial Court

commands by court to do something

Civil Law Remedy Examples

compensatory damage for a loss (legal remedies) or command by court like rescinding a contract (equitable remedies)

Private Law

concerns disputes between private citizens (ex: property, contracts, torts)

Minimum Contacts

constraints placed on the plaintiff so they don't abuse the power of bringing someone into their state to sue them (you must have a reason to sue them) (ex: if the defendant did business in the state where you live, you can bring them to the state to sue them)

11th Amendment

created to undo a Supreme Court case, bans lawsuits by citizens on one state against another

U.S. Court of Appeals

decisions of Trial Court are reviewed for errors of law and fact

Intentional Torts

don't always require malice or specific intent to harm another (ex: a kid pulls out a chair from under his grandmother and she dies from the injury, he intentionally pulled out the chair but not knowing what would happen) exception: defamation when victim is public figure

Tort Law

establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another (often requires injury)

Affectation Theory in the Aggregate

even though one person's activities might not directly affect interstate commerce, if everyone did what he was doing, there would be a large effect on demand (Wichard vs. Filburn)

Long Arm Statute

every state has the legal authority to bring a person from another state into your state to sue them

Privilege

ex: a parent has the right to spank/discipline their child...within reason

Consent for Assault and Battery

ex: playing contact sports like football or hockey, cannot sue every time you get tackled (exception: when a hockey player was blinded because another player hit him so hard with his stick)

Federal Courts

extends to matter involving questions of federal law, the US as a party, controversies among the states, and certain suits between citizens of different states (judicial power is limited by Congress)

Judicial Review

final say over what the Constitution means is by the Supreme Court (Marbury vs. Madison)

U.S. District Court (Trial Court)

has general jurisdiction and there's more than one per state

U.S. Supreme Court

has the final say over matters involving U.S. Constitution

Supreme Court

highest court

Exclusionary Rule

if a cop gets evidence during a period where there isn't a warrant or court-ordered permission, then that evidence can't be used in court, incorporated right of unreasonable search and seizure (Mapp vs. Ohio)

Case of First Impression

in the absence of statutes and rules, judges under the common law can create new law

Criminal Law

includes offenses against the state, involve a representative of government attempting to prove the wrong committed against society and seeking to punish the wrongdoer, protect society, rehab the criminal

Public Law

informs government in some form, includes matters that involve the regulation of society as opposed to individuals interacting (both civil and criminal actions)

3 Categories of Tort

intentional (not covered by insurance), negligence (covered by insurance), strict liability (all 3 can involve injury against persons and property)

Middle Ground (Possible Jurisdiction)

interactive websites where a user can exchange info with the host computer, depends on level or direct interactivity (page hits)

Tate Law

irreconcilable conflict with federal law (ex: states can raise minimum wage laws but if they lower them, that would be unconstitutional)

Discretionary Appeal

judges decide if they are going to take the case or not, it isn't required

Common Defenses to Assault and Battery

privilege, consent, self defense and defense of others

Proper Parties

real parties in interest, the correct parties are engaged in litigation (ex: if you witnessed a car accident and then couldn't sleep for a few weeks, you cannot sue the person who caused the accident)

Civil Law

redresses claims and seeks remedies (money damages) not punishment

Diversity of Citizenship

requires that all plaintiffs be citizens of different states than all defendants

Protections in Criminal Law

right to a speedy trial, right to remain silent, right to a lawyer, and right to have your Miranda Rights read to you

1st Amendment

right to free speech and expression

Administrative Law

rules created by agencies

Interstate vs. Intrastate Doctrine

said that Congress could regulate transport across state lines but not transport within one state (from Gibbons vs. Ogden)

Interstate Commerce

something YOU do that affects people in other states

Black Codes

southern state laws before the Civil War against African Americans (ex: denied them property rights, to own guns, criminalized a breach of a servant's duties)

Exclusively Federal Subject Matter

the federal government can make laws that state governments aren't allowed to combat (ex: only the federal court can declare someone bankrupt)

Federalism

the legal relationship between the states and the federal government

Writ of Certiori

the petition a lawyer rights to get their case a 2nd look after they already went through Appeals Court (only 1-2% of requests get granted)

Police Powers

the power to regulate a state's health, safety, welfare and morals (ex: speed limits, drinking age, prostitution laws)

De Novo

the right to start all over again as if the arbitration never happened

Miller vs. U.S.

this case defined obscenity by: - whether the average person applying a contemporary community standards would find that work prurient - whether the work depicts or describes sexual conduct in an offensive way - whether the work lacks serious literary, artistic, political, or scientific value (hard to prosecute because it is hard to define)

Citizen's United vs. Federal Election Commission

this case ruled that corporations can spend freely to support or oppose candidates for President and Congress (considered a form of free speech and expression)

Passive Site (No Jurisdiction)

web host simply post information with no interactivity

Standing to Sue

what you need so you can sue someone (proper parties and justiciable controversy/ripe for review)

Caucusing

when the mediator talks to each part separately and brings them together to solve the problem in a peaceful way

Personal Jurisdiction on the Internet

zippo sliding scale, depends on purposeful availment or directed activity