ENR 4400 Exam #2, ENR 4400 Practice Exam 2, ENR 4400 Exam 2 OSU, ENR 4400
WHAT SORT OF WORDS ARE USED IN STATUTES TO EXPRESS MENS REA IN A CRIMINAL CASE? (2 POINTS)
"A guilty mind"; "a criminal intent"; "guilt knowledge or willfulness"
WHAT IS THE BURDEN OF PROOF IN A CRIMINAL CASE? (2 POINTS)
"Beyond a reasonable doubt"; often over 99%
If you want them to bring their documents, subpoena is called ____________
"Subpoena duces tecum"
Compensatory Damages
"To make the person whole" Economic- Hospital costs, surgical costs, rehab, loss of job, loss of wages, etc. Non-Economic- Disfigurement, loss of a limb
What is voir dire?
"to say the truth"--> the process of jury selection
Aldredge Piggery Case
(1st ever reported air pollution case, 1611) - Aldredge did not "come to the nuisance" - Habadate Dominas: "we should be able to inhabit our house"
What is real property?
(associated with land) and personal property (everything else that is moveable item)
Later Piggery Cases:
- "Good animal husbandry" - When people first moved, the piggery was small and well run - Later the piggery expanded, and the owners were throwing unprocessed carcases and city trash on the ground
WHAT IS A CAUSE OF ACTION? (2 POINTS)
- A set of facts that allow you to sue - Cornerstone of a complaint - The pleading that initiates a lawsuit
Live Deposition:
- Can ask follow-up questions, look them in the eye - Best to do it in their office, in case they need to reference various files
What is a complaint?
- Cornerstone of the lawsuit - First pleading file
Procedural tools a court will use to ensure live case or controversy:
- Is the case moot? Can the court offer relief? - Does the case have standing? (Do you have a "stake in the outcome") - Rightness: When you can sue (Must be close enough to an active dispute)
Two-Prong Test for Standing:
- Is there an eminent injury? - Am I within the zone of interest in which this law is supposed to affect?
WHAT IS THE "RULE OF LAW" DOCTRINE? (2 POINTS)
- Legal principle - Law should govern a nation (NOT arbitrary or unwritten decisions by individual gov't officials) - Every citizen is subject to the law (Presidents, lawmakers themselves, no one is above the law)
Statute of limitations are:
- Procedural item courts initially look at to see if they have a live case or controversy - States and congress will pass laws that limits the time in which a plaintiff can bring a lawsuit concerning an alleged injury
Interpreting "the word" of a statute, law, etc.:
- Refer to section to which word was taken, use dictionary to determine meaning of word (strict constructionist) - In Pari Materia - Looking at more than the words of the given section
MANY ENVIRONMENTAL LAWS SPECIFICALLY AUTHORIZE CITIZEN SUITS. PURSUANT TO THESE LAWS, WHAT 3 ACTIONS CAN A CITIZEN REQUEST? (3 POINTS)
- Stop pollution (allege violation of statute) - Force Action required by the law (promulgate lead standards) - Prevent (enjoin/injunction) action (prevent imminent handling of toxic waste)
Case of First Impression:
- The courts have not seen this type of case before; the law is not well settled - The court will let you know they will be making law
Spur v. Webb (Piggery Case)
- Webb with his condominium complexes came to the nuisance, came to a well-operated feedlot, but because of the number of people effected, the court declared "public nuisance" - Court ordered that Spur (as a nuisance) had to move, but Webb was to pay for the move- indemnification
what's restatement of torts and how does it assist judges
- compilation of tort/common law, black letter law from college law profs - designed to inform judges of the state of the common law
three elements constituting a cause of action for negligence
- duty - breach - damage due to breach
words used in statutes to express mens rea in criminal cases
- felony - misdemeanor
3 elements of a contract
- offer/promise - acceptance - consideration
types of taxes that can be levied
- sales - income - inheritance
3 actions citizens can request
- stop pollution - force action required by the law - prevent action
What are types of public law?
-Constitutional -Tax -administrative -criminal -procedural -environmental
What occurs during the trial?
1) Plaintiff presents first 2) Cross examination of witnesses 3) Rebuttal 4) Opportunity for defendant to ask for directed verdict 5) Defendant presents
What are the 3 requests can citizens make of the government with regard to environmental laws?
1) Prevent an action (injunction) 2) stop pollution (allege violation of statute) 3) force an action required by law (promulgate certain standards)
What are the steps to identifying a superfund site?
1) Report a release to the EPA 2) Rate (US EPA uses a hazardous rating index to determine the sites place on the national priority list) 3) Remediate/ Removal
What three conditions must coalesce for a contract to be considered in place.
1) Somebody must make an offer 2) The other party must accept the offer 3) Some exchange of consideration must be made
Live cases of controversies
1. Cases that are real 2. cannot be moot, has to be a ripe case (current problem), has to be standing (parties invested)
Three examples of early recorded law in western history
1. Code of Hammurabi 2. Justinian Code 3. Anglo-Saxon Law
WHAT ARE THE THREE ELEMENTS CONSTITUTING A CAUSE OF ACTION FOR NEGLIGENCE? (3 POINTS)
1. Duty 2. Breach of Duty 3. Injury caused by breach of duty - Causal arm: sometimes called "but for"
4 differences between morality (natural law) and positive law
1. Level of Importance 2. How it can be changed 3. whether inaction is an excuse 4. How they are enforced
LIST THE 3 ELEMENTS OF A CONTRACT. (6 POINTS)
1. Offer 2. Acceptance 3. Consideration
Four commonalities between natural law and bare minimum positive law
1. Prohibition against violence 2. Minimal property rights (finite number of resources available to us) 3. Sanctions against non-compliance 4. Provisions for compromise
Three constitutional concepts
1. Separation of powers 2. Cooperative federalism 3. Individual rights 4. Equal protection
Two rules that came from Marybury v. Madison (1803)
1. Supreme court can determine if something congress or president did was unconstitutional 2. Congress giving the Supreme Court more jurisdiction that constitution: unconstitutional
WHAT CONSTITUTIONAL AMENDMENT SANCTIONS THE INCOME TAX? (2 POINTS)
16th amendment
How long does a defendant have to answer a summons? What must be included in the answer?
30 days, admit or deny. Can file counter suit/claim. Failing to answer results in a judgement by default.
First Amendment
5 freedoms: speech, press, religion, assembly, petition
How many justices on the state supreme court
7
How many federal justices on the supreme court
9
What is a brownfield? Give an example.
A brownfield is a property that was typically a previously commercial/industrial site for which the expansion/redevelopment/reuse of is complicated by the presence of a hazardous substance/pollutant/contaminant. An example is Lennox Town Center. There remains a question of how clean is clean.
"Alphabet soup of agencies" FDR
A bunch of new agencies trying to address problems that came up during Great Depression
Where decisions and policies come into action in a community
A characteristic of law
WHAT IS A TORT? (2 POINTS)
A civil wrong (generally) for which a legal remedy exists; an act that is "twisted" from normally accepted behavior
What is a tort?
A civil wrong for which there is a legal remedy.
What are unconscionable clauses in contract law? Give an example.
A clause in a contract that can be challenged because the person had no choice but to accept it. An example would be the Hooters case in which there was a mandatory arbitration clause in which the arbitrators would be three other Hooters managers. This clause was found unconscionable. It only invalidates the clause, not the whole contract.
WHAT IS AN "UNCONSCIONABLE CLAUSE?" (2 POINTS)
A clause that is not right or reasonable, often embedded deep in a contract, where the signee would is not likely to notice/comprehend the clause This is illegal, and courts will make this part of the contract void
What is the burden of proof?
A concept in law that requires that one introduce evidence to prove facts at issue in a particular lawsuit to avoid a ruling against him or her.
What is the restatement of torts?
A guiding document written by legal professionals and scholars that can be used as persuasive authority in court. It is considered to be the black letter of common law.
What is Law?
A law is something in which you have to do something or refrain from doing something
What is an ex post facto law?
A law made after the fact. It is illegal/unconstitutional to charge someone for something that was previously legal but has now been made illegal.
What is love canal?
A man named Love wanted to create a canal in NY. His project failed and he sold the land to Hooker Chemical. Legally, Hooker chemical used the unfinished canal as a waste dumping site. Despite warnings, the city bought the land from Hooker and built two schools on it. Soon after, seepage from the chemicals could be seen on basement walls, barrels began to poke through the ground, and cancer clusters formed. The site was then listed under superfund/ the npl and remediated and redeveloped. Despite assurances that the area was clean, the same problems from before began to occur. Now the site is considered officially clean once again.
WHAT IS "VOIR DIRE" AND WHAT PURPOSE DOES IT SERVE? (4 POINTS)
A preliminary examination of a witness or a juror by a judge or counsel. It helps the jury, whose role is to decide the facts
Expertise (with AA)
AA are specialized and have more concentrated knowledge than congress
PROPERTY LAW CONCERNS MORE THAN OWNERSHIP OF THINGS. WHAT NON-TANGIBLE THINGS ARE ALSO CONSIDERED PROPERTY? (3 POINTS)
Aesthetic Value, Commercial Value (mcdonalds' golden arches, nike swoosh), Intellectual value (song lyrics, books, patents)
What is the discovery period?
After the defendant responds, there is a time period before the court date during which evidence can be gathered.
Rules (with AA)
Agency statement of general or particular applicability and future effect designed to implement, interpret, or proscribe law
Tenth amendment
All powers not delegated to the US by the constitution or prohibited to the states are expressly reserved to the people
En Tort
Allege a cause of action
What are the three functions of property?
An instrument of society Internalizing externalities Benefit of private property
Judicial review under APA
Any person aggrieved or adversely affected by final action of an agency may get judicial may get judicial review
Who are potentially responsible parties (PRPs)?
Anybody involved with the property at any point in time (previous/current owners, transporters)
Court systems: Hierarchy step 2
Appellate
Legislative influence on AA's
Appropriations Enabling act Substantive statute
On what basis does the federal government claim the right to tax?
Article 1 of the constitution gives congress the power to levy taxes. The 16th amendment deals specifically with income tax as well.
Where is impeachment found in the constitution?
Article 4 section 2
Do bad laws exist?
Bad laws will always exist, must continually strive to ensure they are changed to serve the interest of the community, not the powerful
Canons of Construction
Basic rules applied by a court to aid in its interpretation of a written document, such as a statute or contract. - "The law is not at odds with common sense" - "The law will not accept an absurd result" - "General to specific" (The general has to be like the specifics) - "inclusio unius est exclusio" (Excludes one from saying that the statute meant something even though it didn't specifically say it, just because the two are similar) These do not have to be proven in court
NAME ONE CLASS OF PERSONS WHO CANNOT ENTER INTO A CONTRACT. WHY? (4 POINTS)
Because a contracts involves a "meeting of the minds", the following cannot enter into a contract: - Children / Young (not mature) - Those said to lack capacity to make a contract (mentally unstable)
What is the burden of proof in a criminal case?
Beyond a reasonable doubt (95% or more)
Positive law ____ be changed by the government
CAN
Negligence = ______________
Carelessness
The ____ stands, the ____ stands
Case/ Matter
Supreme Court has original jurisdiction over
Cases affecting public ministers, ambassadors Cases between two states
The federal court system (Judicial authority)
Cases that deal with the constitutionality of law Cases involving the laws and treaties of the US Cases involving Ambassadors and public ministers Disputes between two or more states Admiralty law Bankruptcy Habeas corpus issues
Public laws are between who?
Citizens and a government entity
Powers of Congress
Collect and lay taxes Pay debts Provide for common defense Declare war Raise and support army, navy, militias Make all laws which shall be necessary and proper for carrying into execution the foregoing powers
What is executive power (what kind of power does the president have?)
Commander in Chief Grant Pardons Enter treaties (with advice/consent) Appoint judges Take care that laws are faithfully executed
How congress gets the authority to regulate many things is in what clause
Commerce clause
Applies where the constitution, a statute, administrative rule does not override
Common Law
THE FILING OF WHAT PLEADING INITIATES A LAWSUIT? (2 POINTS)
Complaint
Things that came from AEP v. Connecticut (2011)
Congress has passed US clean air act, authorized EPA to regulate Court limited actions that private states or citizens could do under common law to address greenhouse gases Set a precedent
Express preemption
Congress has said we intend this law to preempt any other state or local laws
How an agency interprets a statute
Congress says x, EPA experts set more specific
Whitman v. American trucking association (2001)
Congress used delegation doctrine to delegate power to EPA, as stated in enabling legislation of Clean Air Act, to create regulations
Why is law made?
Constitution, Public opinion, Natural disaster response, Perceived need by an agency
GIVE AN EXAMPLE OF A SPECIFIC PUBLIC LAW (2 POINTS)
Constitutional Law: - Executive, legislative, and judicial articles describe/protect individuals from the power of the gov't both federal and state
Restrictions on legislation
Constitutional constraints Non-delegation Prospective Not to be directed to the interest of a single individual or group
Why does contract law prohibit (or find null and void) a contract that attempts to bind a young child or an incompetent person?
Contracts are considered a "meeting of the minds". Younger and incompetent people are incapable of thinking/understanding at the same level as the person making the offer. Therefore, contracts can take advantage of children/incompetent people because they lack the capacity to understand its implications.
WHAT IS THE DIFFERENCE BETWEEN A COPYRIGHT AND A TRADEMARK? GIVE AN EXAMPLE OF A TRADEMARK. (2 POINTS)
Copyright: Protects creativity (song lyrics, book, patents) Trademark: protects commercial value (swoosh, face and name, golden arches)
Trial level for Ohio
County courts of common pleas Court of claims- Mayors' courts- Municipal courts-
Common Law
Court made Opinion (decisions and reasoning) Flexible Stare decisions (case law is born) Applies where the constitution, a statute, administrative rule does not override
Jurisdiction
Court's authority to decide particular case
A law is a prediction of something the ____ will do- Oliver Wendell Holmes
Courts
To what sort of disputes does the constitution limit the judiciary?
Courts can only hear live cases and controversies brought to the court. The plaintiff in the these cases must have endured a harm/injury traceable to the defendant's actions and there must be some available form of relief that can be granted by the court.
benefits of precedent
Create new areas of law Develop existing areas of law Interpret legislation Degree of certainty arising from consistency of decision making by doctrine of precedent Adaptation by judicial interpretation to changed circumstances
WHAT DOES A PATENT PROTECT? (2 POINTS)
Creative Ideas
Why does a prosecutor, as opposed to an attorney in private practice, try criminal cases?
Criminal cases are a crime against society rather than an individual.
What are punitive damages?
Damages awarded for the purpose of punishment
14th amendment
Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws
Policy debate: AGAINST delegation in AAs (formalist view)
Democracy Agencies aren't that efficient Classic theory of law Goes against legislative process outline in constitution
34. THE LAW PROVIDES FOR DISCOVERY TO BE CONDUCTED EITHER IN THE FORM OF WRITTEN INTERROGATORIES OR LIVE DEPOSITIONS. WHICH WOULD YOU PREFER, AND WHY? (2 POINTS)
Depositions: -Most common method of discovery -Effective (in person, etc) -Subpoena (comment to appear at a certain time and place) -Duces Tecum (bring documents) -Sworn and recorded -Admissible in court - has his/her story changed? impeach credibility Interrogatories: -Similar to deposition except that questions are written -Limit: not in person, so opportunity to ask follow up questions not available
Same material facts (precedent)
Did the previous case have the same set of material facts?
the preamble distinctively _____ from Declaration of Independence
Different
Timeliness
Does case comply with statute of limitations
AEP v. Connecticut (2011)
EPA found endangerment finding, that greenhouse gases were harmful to human health and environment
What are the two categories of compensatory damages? Give examples of each.
Economic (payment for objectively verifiable monetary losses such as past/future medical expenses, loss of property, loss of future earnings, etc.) and non-economic (compensation for subjective losses such as pain, suffering, distress, etc.).
Kelo vs. City of New London (2005)
Eminent domain case: Local governments may force the sale of private property and make way for private economic development when officials decide it would benefit the public.
Ninth amendment
Enumeration of some rights doesn't mean other, not listed rights, should be denied
Burden of Proof:
Evidence that my statement of the case is correct
WHAT IS THE "BURDEN OF PROOF?" (2 POINTS)
Evidence that my statement of the case is correct
What happened in Times Beach, Missouri?
Example of a superfund site. The area was developed to be a tourist destination. However, the project was left unfinished and the area became residential. There was not enough money to pave the roads so a private contractor was hired to spray the roads down with oil to keep the dust at bay. The oil he used was waste from a plant that produced agent orange and caused a host of health and environmental problems in the area. The site then became recognized under CERCLA.
How president influence AA
Executive orders Appoint/removal of officers
Punitive Damages
Exemplary- Punishment for being a "bad actor"
Lake Michigan and the Public trust doctrine
Expanded to land, tidal waters and non-navigable waters
Policy debate: FOR delegation in AAs (functionalist view)
Expertise Time AAs are insulated from politics and re-election campaigns Congress still has a check on agency action
Executive branch agencies
Federal agencies which are part of the executive branch of the government, under the control of the President
Generally broad and general, Directs "experts" to carry out goals
Federal level
Louisiana law is based off of
French/Spanish law, not Anglo-Saxon (only state to not have Anglo-Saxon)
Status of the deciding court (precedent)
From a court you aren't required to follow
19th amendment-
Gave women the right to vote
Discovery is intended to:
Get more facts for the case at hand
Constitutional taking
Government acquisition of private property by ousting owner, destroying the property or impairing its utility Requires payment of compensation when landowner deprived of all practical use of her property
Environmental laws were the first to do what?
Grant citizen suit provisions
Cline v. American Aggregates (1984) 1800's precedent
Groundwater considered like soil (apart of property), you can do whatever you want with it
Outsider arguments about natural law
Historical figures, what it means for natural law to be applied to all people
____passes articles of impeachment, ____ tries, and the ____ presides
House /senate/Chief Justice
IF A DEFENDANT NAMED IN A COMPLAINT DOES NOT FILE HIS /HER ANSWER WITHIN THE PRESCRIBED 30 DAY TIME PERIOD, WHAT WILL THE JUDGE DO? (2 POINTS)
If not filed in time, the judge will give a "default judgement" and plaintiff wins
Perceived need by an agency
If they think they cannot make a change on their own, through their own rule making process, may need to go back to the statue that set it up in the first place to get changes made
WHAT IS TORT REFORM? (2 POINTS)
Implies that Tort Cases are frivolously brought, and that the Tort system is "out of whack"
LIST TWO TYPES OF TAXES THAT MIGHT BE LEVIED. (4 POINTS)
Income or sales
Administrative agencies Two categories
Independent branch Executive branch
In property law, what does an intellectual property right protect?
Intellectual property rights protect creations of the mind.
_______ last 5-10 years have gotten really sophisticated with putting together a legislative package and bringing it to state legislators
Interest groups
IRAC
Issue, Rule, Analysis Conclusion
In contract law, what does "failure of condition" mean?
It is a breach of contract in terms of the failure of a either a condition precedent or condition subsequent. For example, if a contract said "but if he drinks before he turns 18, he will not receive the money" in the case of a condition precedent and the person drank, he breached the contract. In the case of a condition subsequent, a contract may state "he must finish the construction before December 18th, 2016". If the person fails to due so, they have also breached the contract by failure of condition.
How does law come about?
It possesses expertise that renders it better able to establish how individuals should act It possesses a steadier, more unbiased law Deciding for oneself causes anxiety and is costly, following authoritative rules reduces both It often is in a better position to achieve (political authority can enforce consequences)
What does a patent protect?
It protects the process by which something is made (how a specific type of computer is manufactured, a new mop design, etc.)
What three presidents have been impeached
Johnson, Clinton, Trump
who created common law?
Kings, instead of the church
Support building
Know which committee it is going to go to, and how chair of committee is going to feel about it
Who said "I was born a slave but Nature gave me the soul of a free man"
L'oeuvreture
Precedent
Legal decision serving as an authoritative rule in future similar cases
Was Brown v. Board of education (1954) limited?
Limited to education, but first domino to fall with desegregating public spaces
In relation to a criminal charge, what is mens rea.
Mens rea means a guilty mind. In a criminal case, you must prove that the defendant had a guilty mind (knowingly/intentionally caused harm)
What is the bundle of rights
Model to describe property rights associated with land ownership
What is the burden of proof in a civil case?
More likely than not (greater than 51%)
The state court system
Most criminal cases Probate (involving wills and estates) Most contract cases, tort cases (personal injuries), family law (marriages, divorces, adoptions), etc. State courts are the final arbiters of state laws and constitutions Their interpretation of federal law or US constitution may be appealed the Supreme Court, which can choose to hear or not hear such cases
"My case is on all fours" with another case:
My case and the precedential case are identical
Both L'oeuvreture and Olympe de Gouges-Declaration systems of thought and power comes from which type of law?
Natural Law
Which type of law says "You own body, entitled to work created by that body"
Natural Law
Which type of law says "you are a human in control of your work and when you work you are entitled to that property"
Natural Law
"Alphabet soup of agencies" came around because of the ______ deal
New deal in the 1930s
two differences between the preamble and the declaration of independence
No "all men are created equal" No inalienable right to "life liberty pursuit of happiness"
Fifth Amendment to US constitution
No person shall be deprived of... property without due process of law nor shall private property be taken for public use without just compensation
Third amendment
No quartering of soldiers
MUST ALL CONTRACTS BE IN WRITING TO BE ENFORCEABLE? (2 POINTS)
No, but it is a good idea for contracts to be written. Exceptions (statute of frauds, must be in writing): - Contract to pay someone else's debt - Contract for the sale of an interest in land - Contract not to be performed w in 1 yr of time of making - Contract for sale of goods over $500
is there a lot of guidance in the constitution about what should be impeachable and removable
No, there is very little guidance
Must contracts always be in writing?
No, though there are some exceptions due to the statute of frauds.
What is the rule of law doctrine?
Nobody is above the law
Democracy (with AA)
Not as accountable to political process
APA requirements for rule making
Notice-authority for rule, terms and substance of proposed rule Opportunity to comment-oral or written Promulgation fo the rule, including consist general statement of the basis and purpose If the agency doesn't follow these steps, the rule can be overturned
No agreed upon _____ or ____for administrative agencies
Number/limit
Where to find state and federal rules
O.A.C. (Ohio Administrative Code)/ C.F.R. (Code of Federal Regulations)
State level of Codification of statue
Ohio revised Code
who said ""Woman is born free and remains equal to man in right"
Olympe de Gouges-Declaration
Trial court
One judge or jury
Johnson v. M'Intosh (US Supreme Court 1823)
Piece of property in Illinois, one man had purchased the land from Native American tribe, the other man received it in a grant from the government (President Monroe)
What is tort reform?
Placing caps on damages to dissuade supposedly frivolous lawsuits.
First thing a court will look at on a challenge of a law or statute:
Plain meaning the word
Which type of law states: not doing something is often not an excuse for breaking law
Positive law
WHAT IS THE BURDEN OF PROOF IN A CIVIL CASE? (2 POINTS)
Preponderance of the evidence; "more likely than not"; 51%
Article 4:
Privileges and Immunities- cannot discriminate against people from other states
Fourth amendment
Protects against unreasonable search and seizure
What does a copyright protect?
Protects original works of authorship (literature, photos, artwork, music, etc.)
All you have to do under notice pleading:
Provide a short and simple statement so that the court (and the defendants) knows why you are suing
WHAT PURPOSE DO CONTRACTS SERVE IN SOCIETY? (2 POINTS)
Provide mechanism by which society works In market economy contracts provide means for work to get done, goods to be distributed, and labor and production coordinated
"Restraint against alienation"
Public trust doctrine
overturn precedent
Quality of reasoning Workability Inconsistency with related decision Changed understanding of relevant facts Reliance
Stakeholder engagement
Reaching out to people affected by bill, or would have knowledge on bill to see if they would support it
Complete federal control with complete preemption of state law
Regulating toxics, Mobile emission sources-
1946 administrative procedure act
Reign in, put some guidelines in place for what administrative agencies do
What should be impeachable?
Relationship of the moral gravity and crime committed Severity of the crime in the eyes of criminal law Circumstances under which committed, and if perjury/obstruction of justice then to whether it is in the context of doing the job
What courts do
Resolve disputes between Private parties Party and the government Government parties
What does law do for us?
Resolve disputes, provides remedies Maintain order Framework within which common expectations of daily activities or accidents can be met Government functioning Protect citizens against excessive or unfair government power Protect society against excessive or unfair power Decencies of life (more of a natural law perspective)
Seventh amendment
Right to a trial by jury in civil cases
Standing
Right to be apart of lawsuit, showing that you are an injured party
Second amendment:
Right to bear arms
Fifth amendment
Right to not testify if self incriminating
WHAT IS NOTICE PLEADING? (2 POINTS)
Short and simple statement so that the court (and the opposing party) knows why you are suing
How is law limited?
Social conditioning Popular habits, attitudes, ideals (alc during prohibition) Human frailties in emergencies Risk in administration internal disputes knowledge
Sixth amendment
Speedy trial by one's peers
FROM WHERE DOES CONGRESS DERIVE ITS GENERAL RIGHT TO TAX? (2 POINTS)
Spending Clause - Article 1 of Constitution
Elements of constitutional taking
State intentionally acts Results may be unintended Exercise of lawful authority Results in no economic value left to property in question For public use
Greater detail, To be sure law is implemented as agreed to by interested parties and to avoid overly broad implementing agency discretion,
State level
much more reportable to stake-holders, so they are usually trying to be sure that the law has enough detail to actually be carried out expectedly
State level
Court systems: Hierarchy step 3
Supreme (not always though)
Ohio's state court system
Supreme Court and Appellate courts (12 district courts)
Marybury v. Madison (1803)
Supreme Court case that established the principle of "judicial review"—the idea that the Supreme Court had the final authority to determine constitutionality.
WHAT IS THE "RESTATEMENT OF TORTS" AND HOW DOES IT ASSIST JUDGES? (4 POINTS)
The "restatement of torts" is a book produced by the American Legal Institute, but together by eminent legal scholars and professors. The book produces "Black Letter Law", which is law that is very well settled. It serves as a persuasive authority, but it is not binding in courts.
Marybury v. Madison (1803) analysis
The Judiciary act was unconstitutional, therefore the Supreme Court did not have jurisdiction to hear the case
Marybury v. Madison (1803) rule
The Supreme Court has jurisdiction to determine whether executive or legislative acts are constitutional Congress cannot give the Supreme Court more jurisdiction that the Constitution
What is the second step in a lawsuit?
The court issues a summons to the defendant.
WHAT IS MENS REA? (2 POINTS)
The intention or knowledge of wrongdoing that constitutes part of a crime
What happens after the trial?
The judge directs the jury on the law. The judge/jury determine the facts and the jury determines a verdict. There can then be an appeal by the 'losing party' to a higher court.
I file a complaint with the court, the court makes a copy, they send it to the defendant with a summons, defendant has 30 days to file answer. If not filed in time...
The judge will give a default judgement and plaintiff wins
Dicta
The judges "two cents worth" - Not precedent (not binding); "not before the courts today but if it were..."
What is the first step in a lawsuit?
The plaintiff files a complaint.
Public trust doctrine
The principle that certain natural resources are preserved for public use and that the government is required to maintain them for the public's reasonable use
Who had the legal right to the ball when one caught and it and bounced off and another picked it up
The second man, it was determined the first man did not have rights
In tort (civil) law, what are the elements of a cause of action?
These are the set of facts that entitle you to a trial. In tort law, there has to be a legal duty, breach of that duty, and injury as a result of that breach.
What is notice pleading?
This is a manner of filing a complaint that takes the focus off of the details of the complaint and shifts it to discovery. It is more relaxed and allows the plaintiff to file a simple complaint that states why they are suing the defendant.
In property law, what does a trademark right protect? Give an example of a protected trademark.
Trademarks protect names, terms, and symbols that identify the provider of the goods/services. Examples include the Nike swoosh, apple logo, golden arches, etc.
Court systems: Hierarchy step 1
Trial
Cline v. American Aggregates (1984)
Two landowners, one is withdrawing water to extent that it is impacting neighbor's ability to access water
Federal level of Codification of statue
U.S. Code
Mississippi Commission on Natural resources vs. Costle
US EPA issues red book (water quality standards guidance for states), states are allowed to set water quality criteria (under clean water act)
Downsides of precedent
Uncertainty Ossification
Tax Law:
Very broad body of law with many subsets: - State Tax Attorney - Federal Tax Attorney - Real Estate Tax Attorney - Income Tax Attorney - Inheritance & Estate Tax Attorney
Article III
Vests judicial power in the Supreme Court and such other courts as Congress may ordain and establish
What is the breakfast theory?
What the judge had for breakfast will determine what mood they are in
What did Olympe de Gouges-Declaration fight for?
Women's rights during the french revolution
Interrogatory Deposition
Write 25 questions and submit to defendant or plaintiff
What are two forms of discovery/gathering evidence?
Written interrogatories and depositions (oral, provides for follow up, meet in person)
Does Ohio have a cap on damages (tort reform)?
YES (in some ways) - Ohio does not cap economic damages - Ohio does have caps some non-economic damages, but for serious non-economic damages, Ohio has no cap - Does cap punitive to 2x the compensatory damage
Is this class the worst?
YESSSSSS
Can Positive law incorporate natural law and scientific law?
Yes
Can the Commerce clause be interpreted very broadly?
Yes
Is a statue subordinate to constitution?
Yes
Is law always evolving?
Yes
Is positive law created?
Yes
Was Brown v. Board of education (1954) is an example of how laws can build off of each other?
Yes
Brown v. Board of education (1954) conclusion
Yes, in the realm of education, separate but equal laws are unconstitutional
Cline v. American Aggregates (1984) rule
You are allowed to make reasonable beneficial use of your groundwater, as long as it doesn't interfere with your neighbor's groundwater
what's tort
a civil wrong/negligence for which legal relief exists
the filing of what pleading initiates a lawsuit
a complaint
what's the burden of proof
a concept in law of evidence that requires that one introduce evidence to prove facts at issue in a particular lawsuit to avoid a ruling against them
what's an unconscienable clause
a doctrine in contract law that describes terms that are so extremely unjust that they are contrary to good conscience
what's mens rea
a guilty mind, a criminal intent, guilty knowledge or willfulness
Called a constitutional government
a lot of debate on how to write the constitution
what's voir dire and its purpose
a preliminary examination of a witness or a juror by a judge, used to determine ability to be a juror
1960:
administrative law constitutes the largest category of cases decided by the Supreme Court "on the merits"
Agency disclosure information
agencies have to disclose rules they make, things they do, public relation requests
Appropriations
agencies have to get a budget, budget has to get approved, conditions can be put on money
What is the Positive law stance when it comes to air pollution?
air act requires EPA to regulate emission of pollutants that "endanger public health and welfare"
What is CERCLA?
aka Superfund: A law that provides for the federal government (primarily the EPA) to clean up contaminated/polluted sites. A tax on petroleum/chemical industries goes into a trust fund that could be used in cleanup of hazardous sites for which no responsible party could be found.
what is a directed verdict and is a judge likely to grant one
an order from the presiding judge to the jury to return a particular verdict, but it is a rare occurrence
Appellate jurisdiction
another court has heard it and appealed it to your court
En banc
appeal decision to everyone in the appellate court
Supreme Court has _____ jurisdiction from ____ court cases
appellate /lower
where does congress derive its general right to tax
article I, sec. 8 constitutional provisions
"we the people" rebuked what
articles of confederation
Implied preemption
based on structure or purpose law
Why could the court not say it that was illegitimate in Johnson v. M'Intosh (US Supreme Court 1823)
because if they did it would be saying their government was illegitimate
burden of proof in a criminal case
beyond reasonable doubt
Article I established
bi-caramel legislature (legislative branch)
Municipal courts
bigger than mayors' courts, jurisdiction over zoning issues, small disputes under $15k
Case law is supposed to ____ upon itself, not supposed to_____ over time unless there is a really good reason
build/change
To possess and use To sell To devise To lease To mortgage To subdivide To grant easements are all examples of
bundle together
How is the Ohio revised code organized
by title and chapter
Internalizing externalities
concentration of benefits and costs on owners creates incentives to utilize resources more efficiently
State level control with federal funding-funding might be _______, state given money to accomplish project
conditional
An agency can create a legally binding substantive rule only if _____ has granted it the power to do so
congress
By saying it's acceptable: (Whitman v. American trucking association (2001))
congress needs authority to delegate to experts to set rules
Whitman v. American trucking association (2001) issue
congress under Clean air act charged EPA with establishing air quality standards (criteria pollutants set standards for), EPA keeps limiting the standards, industries do not like this. American Trucking Assoc. appealed ozone standards Whether the Clean air act delegated legislative power to the administer of EPA
Article 6
constitution is the supreme law of the land
punitive
damages exceeding simple compensation
Why was the term Maladministration not used?
decided to not use this term (doing job baldy) because didn't want it to be used as a threat to easily remove an elected president from office
what will the judge do if a defendant doesn't answer a complaint
default judgment granted to the plaintiff
AEP v. Connecticut (2011) issue
did the federal common law of nuisance apply to allow a lawsuit by states against a power company for greenhouse gas emissions?
Brown v. Board of education (1954) Issue
do separate but equal laws in the area of public education deprive black children of the equal protection of the laws guaranteed by the Fourteenth amendment of the United States Constitution?
what was the issue for Johnson v. M'Intosh (US Supreme Court 1823)
does a land conveyance from a Native American tribe trump one from POTUS?
What was the issue for The Queen v Dudley and Stephens (1884)
does a person commit murder if he takes a life to save his own?
Guidance (with AA)
does not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance
What is the problem with Locke's theory
doesn't work for limited finite resources
Independent branch
don't report directly to any cabinet head
Anglo-Saxon Law
drew from Roman law, property and concept of possession is very different (physical), Romans had more conceptual view
Marybury v. Madison (1803) Trying to legitimize the Court system
duty of the judicial department to say what the law is"
State judges are_____
elected (not appointed)
How is positive law enforced?
enforced in obvious ways (jail, fee)
an example of specific public law
environmental law
____ weight, tension keeps things ____
even
What is the natural law stance when it comes to air pollution?
every human has the right to breath clean air
what does a patent protect
exclusive right to use, license, sell an invention
_____ rights to make a decision about ____ (bundle of rights)
exclusive/ land
Article II established the _______ Branch
executive
Exercise "_______" power when investigating and enforcing potential violations of rules or statutes
executive
regulatory capture
failed government, an agency charged to protect the welfare of the public but in bed with industry interests
Mobile Emission Sources
fed gov has control, state is preempted
AEP v. Connecticut (2011) rule
federal common law for nuisance does not apply for greenhouse gas emissions
Supremacy clause
federal government supreme law of the land
What are state specific restraints on legislation
federal preemption
When agencies create rules, gets published in code of________ (fed) or ______ (state)
federal regulations / state administrative code
what's notice of pleading
federal rule of civil procedure with the goal to relax strict/technical rules
Two main parties (1776 ish)
federalists and republicans
The bill of rights
first 10 amendments
Original jurisdiction
first time case is heard
Eight amendment
forbids excessive bail and cruel or unusual punishment
Executive orders
formal order by president that directs agencies
The legislative power of the state shall be vested in a ______ consisting of _______
general assembly/ Senate and House of Representatives
Kelo vs. City of New London conclusion
general benefit to community from economic development is a permissible public purpose under the takings clause of the fifth amendment
must all contracts be in writing to be enforceable
generally, no
Time (with AA)
get stuff done in a more expedited manner while congress has trouble reaching agreement on issues
Classic theory of law (with AA)
goes against separation of powers
What is the role of the government in the tragedy of the commons
government comes in to regulate shared spaces and allow for private ownership
Tragedy of the Commons
green space (shared grazing), each individual property owner has an incentive to bring more cows, if everybody does this you run out of grass
Ossification
hardening; bad law gets ingrained because court will fall back on precedent
Reliance
have industry or citizens been relying on previous understanding of the facts? Or using it to make decisions?
public record
have information stored on a fixed medium and are created or received by a public office, includes what the public office does
Article 5
how to amend the constitution
Cooperative federalism
idea that levels of government (federal, state, local) have different roles but are working together
Mississippi Commission on Natural resources vs. Costle Rule
if EPA has established certain standards in their red book, it was permissible for EPA to reject Mississippi's standards and replace it with their own
What was the rule for Johnson v. M'Intosh (US Supreme Court 1823)
if land has been acquired and held under conquest, and is the property of that conquest, the people who had been conquered are protected as "peaceful occupants" but cannot transfer land
Court of claims
if somebody is going to sue the state
What are intangible property rights?
intellectual property
what's a trademark
intellectual property that's protected for the commercial value (Adidas)
non-tangible things considered property
intellectual property: - trademarks - patents - copyrights
An agency has the inherent power to issue an ______ , policy statement, or a procedural rule to ______ a statute it administers
interpretative rule/ implement
Kelo vs. City of New London issue
is it a public purpose if you're taking land for economic development?
Exercise "_____" power when adjudicating disputes over whether a company has failed to comply with governmental regulations
judicial
Dissent-
justice that doesn't agree with outcome of case gets to write their opinion
States are ____ of democracies, can experiment with things that may or may not work at federal level
laboratories
Bundle of rights: what does it apply to when it comes to real property?
land Water Air- right to the air that you use above property Some places: right to sunlight (Ancient lights) Subsurface rights
for bundle of rights Each "stick" a recognized power to decide about _____
land use
Positive Law
law based on the dictates of a central political authority
First case-coal miners going under house
law that you can't mine under house, that law was ruled a takings
what's the rule of law doctrine
laws should govern a nation, not arbitrary or unwritten decisions by individual government officials
Agencies exercise "_____" power when issuing rules and regulations
legislative
example of knowledge (how law is limited)
limits of scientific knowledge (law can only be as good as what we know of the world and how it functions
would you prefer live or written depositions
live because you can question it further if it reveals something new
compensatory damages
medical bills or loss of work
How is natural law enforced?
moral pressure
Mayors' courts
mostly speeding tickets
Natural Law
naturally put into place, we are people and this is who we are
Most torts come from ___________________
negligence
Articles of confederation problem
no centralized government, couldn't collect taxes
in Johnson v. M'Intosh (US Supreme Court 1823) the Court argued native Americans lived on land but did not ____ it (improve it by building stuff)
occupy
Non-delegation
one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to execute itself
Preemption
one thing wins out over the other
Appellate court
panel of 3 or en banc
States are closer with _____, more in touch with citizens concerns (can help or not help)
people
Benefit of private property
person benefiting from property has to deal with the cost of property (motivating people to take care of it)
What is a more modern example of tragedy of the commons?
pollution (everybody wants to drive)
Man takes ______ of that which he is able to cultivate through the _____ of his own labor with the earth" John Locke
possession/ intermingling
Commerce clause
power of congress to regulate commerce among the states
burden of proof in a civil case
preponderance of the evidence, more likely than not, 51%
Head of independent agency is still appointed by _____, advice and consent of _____
president/senate
What is the takings clause?
private property shall not be taken for public use without just compensation aka fifth admendmet
An instrument of society (private property)
property can be seen as rights between persons in relation to things
what's tort reform
proposed changes in common law civil justice systems that would reduce tort litigation or damages
what's a copyright
protects the expression of ideas rather than ideas themselves
what purpose do contracts serve in society
provide mechanism by which society works, means for getting work done, and coordinates society
Article I: Explicit _____ on state power
restrictions
Statue
results from legislative approval of a bill and signature of President or Governor
Lead up to the constitution
revolution and states were very weary about formal power after this
Sticks that are separated
right government has on property
Bundle together
rights property owner would have, you can break up the bundle and sell specific rights
What is the Scientific law stance when it comes to air pollution?
smog is harmful to human health Therefore, in the clean air act operating permit, Good Company can only emit 7.5 tons of NOx per year
Whitman v. American trucking association (2001) rule
so long as congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power
example of internal dispute
some laws contradict each other
Decision
starts with saying which justice wrote it and decision of court
Enabling act
statute or law that established agency in first place
Substantive statute
statute that agency administers
Deposition sent via __________
subpoena
Kelo vs. City of New London rule
taking must be for a public purpose
Definition(s) of property
that which belongs exclusively to one; an aggregate of rights in a thing which are guaranteed and protected by the government; the right to posses a thing, to use it, ands to exclude everyone else from interfering with it
what constitutional amendment sanctions the income tax
the 16th amendment
what's a cause of action
the fact or combination of facts that gives a person the right to seek judicial relief against another
can't enter into a contract
the incompetent because they lack the capacity and the notion that the contract was not freely entered with information
1952 justice Jackson:
the rise of administrative bodies has probably been the most significant legal trend of the last century
Very limited original jurisdiction, intended to be an appellate court
the supreme court
Police power
to secure and promote the public health and welfare
what are the different rights government has to property
to tax To take for public use To control the use of (environmental regulations) Escheat (if your property reverts to ownership of state)
Justinian Code
took Roman law, recorded and organized it to make it a more comprehensive system of law
What are tangible property rights?
touch see move
Brown v. Board of education (1954)
unanimously held that the racial segregation of children in public schools violated the Equal Protection Clause of the 14th Amendment. Brown claimed that Topeka's racial segregation violated the Constitution's Equal Protection Clause because the city's black and white schools were not equal to each other and never could be. Overruled Plessy v. Ferguson's "separate but equal" doctrine and would eventually led to the desegregation of schools across the South
Marybury v. Madison (1803) issue
was Marburg entitled to his appointment as justice of the peace?
Mississippi Commission on Natural resources vs. Costle issue
was U.S EPA allowed to reject MS' proposed water quality criteria and replace it with their own?
McCulloch vs. Maryland (1819) issue
was it constitutional for congress to create a national bank?
Acquisition by discovery
we discovered this, claimed it, so it's ours
Cline v. American Aggregates (1984) court 1984
we know where groundwater comes from, when you take water you are not just taking water from your property
Chevron v. NRDC (US SC 1984) issue
what's the court's rule in reviewing an agency's interpretation of a statute it administers?
Inconsistency with related decisions
when court made decision, they ignored past decisions or didn't look at them (outlier)