MMC4200 Quiz 1

Stare Decisis (precedent)

"Let the decision stand"...courts generally follow the decisions of lower courts in similar cases that set a precedent

Federal Question Jurisdiction

- The question or issue arises from a federal statute or federal treaty or the federal constitution. - You are suing under a federal statute. - Or, if you are suing because you are claiming your 1st Amendment rights were violated.

Trump's court order on Bolton's book and Mary Trump book

- Trump tried to get an injunction to tell the book publishers that they cannot publish it. · Irreparable injury will happen if this book is published · The court said John Bolton had a confidentiality agreement where he agreed to not say some information · Issuing an injunction would be fruitless— it would do no good because the book was already out there and out of Bolton's hands. - Mary Trump book · Trump's brother tried to get an injunction on this book too, but it wasn't successful.

plurality opinion

-A court opinion that results when a majority of justices agree on a decision in a case but do not agree on the legal basis for the decision. In this instance, the legal position held by most of the justices on the winning side is called a plurality opinion. -An opinion in which 5 justices cannot agree on a single majority opinion—there is no opinion of the court—but that is joined by more justices than any other opinion is known as a plurality opinion.

split of authority

-A disagreement among lower courts on the same legal issue. - If one federal appellate court concludes that Law A is not constitutional, but a different federal appellate court finds that Law A is constitutional, then that would be a split of authority, and the high court might take the case so as to provide uniformity across the nation on Law A.

Jim Acosta

-An example of the Press Clause -Acosta was kicked out of the press room. -Him and CNN sued Trump for violating the press clause -The judge ruled in favor of Acosta and CNN, but didn't make this ruling under the press clause. They ruled as a due process argument. -Acosta's press rights were revoked for no reason; he had no notice or warning whatsoever.

Judicial Review

-Courts have the power to review and declare unconstitutional acts of legislative bodies. -However, a state court can declare an act of its legislature to be invalid because the act conflicts with a provision of the state constitution. -Theoretically, any court can exercise this power. -If a state creates a law restricting kids access to violent video games, and this is challenged by the creators of the games or the kids parents, that would be challenged on 1st Amendment grounds.

Petition Clause recent example

-Donald Trump blocking people on Twitter who expressed a disagreement with him. -They sued him for violating their first amendment rights—"it is our right to petition you as our president. We are complaining to you about your policies." - The people ruled in favor of those blocked by Trump—it said Trump had to unblock those people and allow them to criticize him. -The court said he talks about government policies and officials on his account; therefore, it isn't a private account because he treats it like a government account.

First Amendment Absolutism

-Holds that the words "no law" should be taken literally to mean "no law." -When we interpret the meaning of the first amendment we do so literally. -In turn, the government cannot make any laws restricting speech or the press. -In other words, the 1st Amendment would provide absolute protection for speech and press. - A majority of the U.S. Supreme Court, however, has never adopted such an absolutist view of the 1st Amendment. - This would give you absolute protection.· Some justices have adopted this interpretation, but at no time have a majority of 5/9 justices ever adopted an absolutist interpretation.

Freedom of speech or the press

-It doesn't say free expression -speech sometimes involves conduct that can be a form of protected speech. -meaning of the press: press protections that protect the government from doing certain things against journalists. -Who is a member of the press? That is very hard to define because in the U.S. you do not have to be licensed.

Distinguish Precedent

-Judge says, this case is very different than your own case, so the precedent is different. o It has different facts or involved a different issue. -We set it aside and we do not follow/apply it -Distinct facts that are different than the case in front of the court now -By distinguishing, we are saying it is a very different situation

Common Law

-Judge-made law that is inductive (meaning it evolves over time from many cases with similar facts.) -cases evolve over time and have similar fact patterns. -developed in England during the 200 years after the Norman Conquest in the 11th Century, is one of the greatest legacies of the British people to colonial America.

Hypothetical Statute University of Florida

-Richard Spencer comes to UF -"No speakers with offensive viewpoints are allowed to rent space for talks or performances at the Phillips Center." -What is problematic about the word offensive?—it is vague. -The problem with vague statutes is that they give huge discretions to whoever is in charge of enforcing them. -Without a precise definition about "offensive," a court or judge has discretion, and could use that discretion against you.

Overbreadth Doctrine

-The law in question is overly broad -which provides that a regulation of speech can sweep too broadly and prohibit protected as well as non-protected speech. A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression. - A law is "overbroad" if it does not aim only at problems within the allowable area of legitimate governmental control but also sweeps within its ambit or scope other activities that constitute an exercise of protected expression.

Criminal vs. Civil Law Parties

-The party that begins the lawsuit is called the plaintiff in a civil case. The plaintiff is a victim that has presumably suffered some sort of legal wrong that the law recognizes. The plaintiff brings suit against the defendant—the alleged wrongdoer or perpetrator. -in a criminal trial, the party that initiates litigation is the prosecution, representing the people of a state or, in federal cases, representing the people of the United States. In a criminal trial the alleged wrongdoer is also called the defendant.

sitting en banc

-Typically, a panel of three judges will hear a case. -the term used when the full panel of judges on the appellate court hears a case. -This is when you petition the circuit, meaning the entire bench of 11-14 justices hears your case

Example of state provisions giving more than the U.S. Constitution does

-When you challenge a statute for violating the constitution, many states have provisions that are similar to freedom of speech, but may give you more than the U.S. constitution does. It may give you more rights. · Ex: the court had never adopted an absolutist interpretation of the constitution. o Obscenity o In Oregon, the S.C. there said their constitution protects obscenity. o But the U.S. supreme court says that the 1st Amendment does not protect obscenity.

Modify Precedent

-to change rather than follow or reject precedent -bring it up to data and tweak it to deal with a new situation

When was the First Amendment ratified?

1791

Per Curiam Opinion

A brief, unsigned opinion issued by the Supreme Court to explain its ruling. o a justice doesn't put their name on it. o Normally, a justice who writes the majority opinion would put his/her name. o Tend to be in highly political cases. § 2000 Bush v. Gore o It will have 5 justices in it still. o Normally brief—2-3 paragraphs long. o Rare but not uncommon

Types of judicial decrees: Permanent Injunction

A court order requiring that some action be taken, or that some party refrain from taking action. It differs from forms of temporary relief, such as a temporary restraining order or preliminary injunction.

writ of certiorari

A formal writ used to bring a case before the Supreme Court. - It is a discretionary order issued by the court when it feels that an important legal question has been raised. - Litigants using both the federal court system and the various state court systems can seek a writ of certiorari. - The most important requirement that must be met before the court will even consider issuing a writ is that a petitioner first exhaust all other legal remedies.

Void for Vagueness Doctrine

A statute or regulation is unconstitutional if it is so vague that a person of reasonable and ordinary intelligence would not know, from looking at its terms, what speech is allowed and what speech is prohibited. - Put differently, people of ordinary intelligence should not have to guess at a statute's meaning.

bench trial

A trial in which the judge alone hears the case... he sits behind the bench. - When you waive the right to a jury trial, the judge becomes both the fact finder and the lawgiver, a situation known as a bench trial.

Administrative Law

Administrative law says that federal administrative agencies have expertise over certain areas. - these agencies create rules and regulations to give life to why they are allowed to give life to this area.

incorporation doctrine

An interpretation of the Constitution that holds that the due process clause of the Fourteenth Amendment requires that state and local governments also guarantee those rights. - This makes the 1st Amendment applicable to actions taken by state and local government entities and officials-- not simply U.S. Congress. (THIS IS WHY CONGRESS DOESN'T JUST MEAN CONGRESS ANYMORE!)

Diversity Jurisdiction

Applies when (1) the plaintiff and defendant are citizens of different states and (2) the amount in dispute exceeds $75,000 Ex: if you want to sue someone in Georgia and you are from Florida, then that is OK. But if you also added into your case a Florida defendant, that would destroy diversity jurisdiction.

Rule of Four

At least four of the nine justices of the Supreme Court must vote to consider a case before it can be heard -if you convince four of them, your petition is granted

Where will you find statutory law?

Books, specifically code books.

Who is the swing justice?

Chief Justice John Roberts. - if you win his vote, you are more likely to win your case. He sides with the liberals a lot, but other times he sides with conservatives. - Before John Roberts, it was Anthony Kennedy.

African American Justices?

Clarence Thomas

Longest serving justice?

Clarence Thomas

Anatomy of a Civil Case

Complaint, Answer, Discovery Process, Summary Judgment, Trial

Two common ways of getting a case into Federal Court

Diversity Jurisdiction and Federal Question Jurisdiction

When is the S.C. most likely to take your case if they get 1,000's of writs a year?

During a split of authority since they are divided on issues

Bowers v. Hardwick (1986)

Equal protection and due process not extended to same-sex relationships.

What type of law comes into play for protection from abuse orders?

Equity Law

Gitlow v. New York (1925)

Established precedent of federalizing Bill of Rights (applying them to the states); states cannot deny freedom of speech --protected through due process clause of Amendment 14

The route to get your cases heard at the S.C. level:

Exhaust remedies in lower courts, petition the court for a writ of certiorari, rule of four, amici curiae briefs, oral argument, decision

Federal Agencies Examples

Federal Communications Commission (FCC) and the Federal Trade Commission (FTC)

First step in the route to get your case heard in the S.C. level

First, you must exhaust remedies in all lower courts. -Most cases start down below—you have to lose and then work your way up Then you will petition for a Writ of Certiorari -The court today hears fewer than 75 cases, and now it is down to the 60s. - Thousands of petitions are filed every year

Options when faced with precedent

Follow (accept), modify, distinguish, overrule

Petition Clause

Guarantees the right of the people to petition the government for a redress of grievances (the right to make a complaint). - complain to government officials about matters. - Ex: Land in Gainesville is still zoned for rural use... a builder comes along and wants to build an apartment complex. However, you object to it. You have the right to stand up and complain about this.

What does it mean if the U.S. Supreme Court denies your petition for a writ of certiorari?

It does not mean the S.C. has ruled on the merits of your case, it just means they are not going to consider your case. Whatever the ruling of the court below the S.C. is the ruling that stands.

U.S. Federal Constitution facts

It is the supreme law of the land, our highest authority for law. State statutes that violate constitutional principles will be struck down.

Substance

Law is a set of substantive rule that are sanctioned and enforced by state or government authority, for the breach or violation of which, there will be some kind of penalty involved.

Constitutional Law

Laws relating to the interpretation of the Constitution -U.S. (Federal) and State Constitutions -State constitutions can give you more rights than you have under the U.S. Constitution.

Precedent

Look to past decisions on similar issues to guide and make decisions today. -Following precedent is beneficial as it builds predictability and consistency into the law—which in turn fosters judicial legitimacy. Courts may be perceived as more legitimate in the public's eye if they are predictable and consistent in their decision-making process. -While following precedent is desired, it is not always the proper way to proceed. -To protect the integrity of common law, judges developed means of coping with bad law and new situations in which the application of old law would result in injustice.

Types of Opinions the Supreme Court may render

Majority, Dissenting, Concurring, Plurality, Per Curiam

How many justices are there on the Supreme Court?

Nine justices. -They are closely divided, today. -The next President will nominate at least one justice—justice has to be confirmed by the advice and consent of the U.S. Senate

Can state constitutions limit your federal rights?

No. They can give you MORE rights, but they cannot reduce the rights you have from the constitution. This is a purely expansive mechanism... flowing in only one direction.

What the justices of the S.C. do if they have original jurisdiction in a case

Once they take a case here, they appoint a special master who is usually a federal judge to look at the case initially, and they advise how he or she would rule on it. The justices may accept, reject, or modify it.

Assembly Clause

Protects the right of the people to peaceably protest in accordance with the law. - facilitates your right to speak - also protects meetings and organizations.

Clauses within the First Amendment

Religion clause, freedom of speech or press clauses, assembly clause, petition clause

Equity Law

Remedy in this case means judicial decrees (court orders) -Equity law focuses on a different type of remedy than the typical monetary damages. -In this case, a court tells someone to either stop doing something that they are currently or about to be doing -Or it is an order telling someone that they should be doing something, and they fail to do it.

Oldest justice on the Supreme Court?

Ruth Bader-Ginsburg is 86-years-old. However, she is NOT the longest serving justice, just the OLDEST.

Latina Justices?

Sonia Sotomayor

State and Federal Court Systems

State systems track and follow the federal court system

Texas v. Johnson (1989)

Struck down Texas law that banned flag burning, which is a protected form of symbolic speech.

Definitions of Law

Substance, Procedure, Pound, Holmes

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

statutory construction

The judicial interpretation of an act of Congress. -Richard Spencer and harmful speech-- void for vagueness doctrine. -Judges may look to the terms of the statute -They look to the plain meaning of those terms -· A judge then could look to the legislative history behind the statute in question -Courts can look to precedent—how have courts in the past interpreted the meaning of that statute. -even the simplest kinds of statements need some sort of interpretation

original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case. -U.S. Supreme Court has original jurisdiction in very limited situations (lawsuits between states) - The U.S. S.C. exercises original jurisdiction where it can hear cases on the first instance. -Additionally, the U.S. Supreme Court exercises both original and appellate jurisdictions. - The SC has original jurisdiction in disputes between two or more states, with these scenarios typically involving battles over land or water rights. - For the resolution of claims between and among states, not claims by private entities within states.

Trial Courts

This is where most cases start out-- courts of first instance. -If you were to sue the Gainesville Sun for defamation you would start in a trial court. -Trial courts are "Fact-finding courts" -Each party presents its case; there may be a jury, there may not be a jury. -If you lose your case at the trial court then you can appeal it to an intermediate appellate court. -The judge NORMALLY sits alone at the trial level

Court System Structure (3 basic levels in fed. and state system)

Trial courts -> intermediate appellate courts -> highest appellate court (U.S. Supreme Court) - In other words... U.S. District courts -> U.S. Circuit court of appeals -> S.C. of the United States

Lawrence v. Texas (2003)

Using right of privacy, struck down Texas law banning sodomy. -in 17 years, the composition of the court had changed and so did values about LGBTQ+ -society was more accepting overruled Bowers v. Hardwick.

When do you use one of those judicial decrees?

When there is a direct, immediate, and irreparable injury for which money cannot make one whole.

Sources of Law

common law, statutory law, constitutional law, equity law, administrative law/executive orders,

Symbolic Speech Doctrine

courts treat conduct (such as burning a flag) as speech if 2 elements are satisfied: 1) the actor must intend to convey a message with his or her conduct - Does the actor mean to convey a particularized message with their conduct? 2) the audience must be able to reasonably understand the actor's message - Is it substantially likely that the people who witness this conduct will understand the intended purpose?

Amici Curiae Briefs

o "Friend of the court" briefs. o Friends of the court are not parties to the case—they are groups and orgs. That have an interest in the outcome. o They want to see the court rule a certain way. o These briefs will enhance or make another argument that the parties in the case have not. a. In important cases, amici curiae are allowed to present briefs and to participate for 30 minutes in the oral arguments. i. Ex: the American Civil Liberties Union often seeks the friend status in important civil rights cases. ii. Ex: the Reporters Committee for Freedom of the Press may file a friend-of-the-court brief in cases affecting journalists' rights, even though it is not a party in the cases.

Majority opinion

o 5 of the 9 justices; but could also be all of the justices. o Binding precedent on all lower courts—and controls all federal and state courts on that issue o One of the justices voting in the majority is asked to write what is called the court's opinion.

Decision

o After they decide where they stand, someone writes an opinion. o If the Chief Justice is in the majority vote, he gets to write it himself or delegate it to another justice in majority. o If he isn't in majority, then it is most senior or longest serving justice in majority.

Concurring Opinion

o Agrees with the result reached by the majority; but does so for a different reason and wants to express how and why they got to that result. o Or they want to emphasize a point that the majority didn't emphasize enough.

Dissenting Opinion

o Disagrees with the result by the majority o Why do justices even write dissenting opinions? § Because the composition of the court may change over time. § In 20 years from now, a similar issue may come up. When that issue does, the current justices may look how the court ruled prior in a similar case. § It may borrow some of the logic from the dissent. § Some dissents are angry · Scalia is known for that. -These are important—sometimes after the court has made a decision, it becomes clear that the decision was not proper.

Oral Argument

o Each side is allowed 30 minutes to make their argument. o Sometimes you get interrupted very soon into your argument, then it becomes a Q&A. o Attorneys have to go off script. o Attorneys do Moot courts to get practice (mock trials) o Clarence Thomas is known for not asking questions during oral arguments—but this session he did. § His reason for not asking questions is to just hear what the parties have to say because he already read their briefs. o The court had to hear oral arguments by Zoom this session. o Any justice can usually interrupt whenever.

Criminal vs. Civil Law Terminology

o If in a civil lawsuit, you win your case, the defendant has been held liable. (probably for monetary damages) o In a criminal case, if the prosecution, state, etc. wins a case against individual, then the defendant has been held guilty. o Never if you write a story on a civil lawsuit say that the defendant has been held guilty, it is always liable for civil cases. o In a criminal case, if the defendant wins and prosecution loses—it doesn't mean that the defendant is innocent, it means they have been acquitted.

When you overrule, there are key things involved

o New facts came into play that we weren't aware of when the old decision was handed down o New social mores or values have changes—new ones have replaced old ones o Justices on S.C. may have changed

Briefs of Parties

o Parties file briefs to S.C. why they should rule for their side o They present the issue and express why they should be ruled for.

Procedure

o Procedures for peacefully resolving disputes. o How would you file a complaint in your civil lawsuit to begin your lawsuit? How would you conduct discovery to find out about the other side's case? How would you file a motion? How can you find out to make an objection? o What you need to navigate in your civil lawsuit in order to win it. o In criminal cases, we talk about procedure as well: entitled to an attorney, a fair and impartial jury of peers, entitled to file motions, have evidence excluded, etc.

Criminal vs. Civil Law Remedies/Punishments

o Remedies: damages (we mean money). If you sue Gainesville sun, they would have to pay or compensate you for the injuries you suffer. o In a civil lawsuit, the punishment is not jail time, it is mostly monetary damages. o In criminal justice system, the punishment is most likely incarceration: jail or prison. -In criminal justice there could be monetary fines. o In a criminal case, if the state throws you in jail or prison, you just lost your freedom.

Pound

o Roscoe Pound—law is social engineering. -By laws, we can modify or change peoples' behavior for the better or for the public good. o Laws for DUI: if we reduce blood alcohol content, that may reduce or modify your drinking behavior if you do go out and are driving.

Holmes

o S.C. Member Oliver Wendell Holmes said law is nothing more than a body of systematized prediction -If we know what the law is, and if we understand it, then we can predict what the results or consequences of our behavior will be. o This is why attorneys are often called counselors—most of the time they are not in court. They are counseling clients and offering them legal advice. -Business attorney: asking them for help to form a business. They tell you and give you counseling on what type of corporation to form. -They tell you tax consequences, liability consequences, etc.

Criminal vs. Civil Law- Standard of Proof

o The level of evidence involved to win a case o In a civil lawsuit, if you are suing Gainesville Sun for defamation—proponderance of evidence (51-49%) is all you need to prove your case. o In a criminal case, the state or government has a much higher burden of proof: guilt beyond a reasonable doubt. -Much higher evidentiary burden

Benefits of following precedent

predictability, consistency, and judicial legitimacy

What does the first amendment NOT protect us against?

private actors. It only protects us against things done by government and public entities.

self-censorship

rather than risk punishment over a statute that has a vague term, you decide to not speak at all.

Religion clause

separation of church and state

All criminal law is what?

statutory law -We can look up a crime such as batter, assault, murder, and there will be a criminal statute.

Appellate court

they generally do not get to create a new factual record. § They look for errors of law down below at the trial court level (law reviewing courts). § Trial courts (where case starts) -> intermediate appellate courts -> highest appellate courts § Party that loses at trial court level might appeal the case due to an error of law by the judge. -juries are never used by appellate courts. -appeals are heard by a panel of judges, usually three or more. § Ex. of an error of law: let's say there is a jury. The judge has to give the jury a set of instructions before they decide · Explains a defamation case and what they must prove. But what if the judge screws up the instructions and gives the wrong law to the jury? Then the losing party would clearly appeal and say the judge down below messed up and made an error of law.

Explaining court system structure process

§ If you lost in the federal district court in Florida, you would go to the 11th circuit court of appeals § U.S. is divided into 94 district courts, and 11 numbered + D.C. circuit intermediate appellate courts. § If you lost at the 11th circuit, then the last place is to go to the U.S. Supreme Court—very rare that they take your case. Last term they only took about 63 written decisions. Lowest since the Civil War era. § 9th circuit court of appeals is the largest geographic circuit—most liberal, and most overruled by the U.S. Supreme Court because it is mostly conservative today. § Florida breaks down into three districts—southern district, middle district, northern district

Swing Justice a.k.a the Median Justice

§ Most important vote you need to win—if you win this justice, you are most likely to win your case. § Used to be Anthony Kennedy—he was a moderate. § Kennedy retired in 2018. Justice Roberts replaced him. Roberts infuriates Trump because sometimes he goes against him · His legacy is that he has to make the court look legitimate (as chief justice) § S.C. is a check on the President, not a lap dog.

Executive Orders

§ When the executive branch adopts orders, maybe because he cannot get them through Congress. § When your ideas are blocked, Presidents adopt executive orders. § Trump has done this because the house has been controlled by democrats. · Whether they are about rolling back EPA regulations or other matters on immigration or border issues, they are presidential orders. · Some are struck down as unconstitutional § When a new president comes in, they can simply get rid of the executive order that the old president has adopted. He can because these aren't federal statutes. § They are less valid in a way

Overrule Precedent

· Declare that precedent unconstitutional and invalid moving forward—bad law and no longer applies. · Most famous example: o Plessy v. Ferguson and Brown v. Board of Education -Separate but equal (1954, this was overruled by S.C. in Brown v. Board of Education. The court overruled Plessy and deemed it invalid.) · When courts overrule precedent, they risk being seen as illegitimate. -i. Courts generally overrule prior opinions as bad law only when there are changes in: 1. Factual knowledge and circumstances 2. Social mores and values; and/or 3. Judges/justices on the court.

Following precedent

· If courts follow precedent, they are going to be predictable and consistent in their judgment. This breeds judicial legitimacy—the courts are perceived as legitimate in the public's eye, because they follow precedent. · If they didn't follow precedent, the system would be unfair, and no one would trust the courts.

Constitutional right to privacy

· In U.S. Constitution, the word privacy isn't mentioned anywhere · It is more implied, it isn't explicit. · But in the Florida constitution, it actually has the word "private" in it.

I-R-A-C Formula for reading court opinions

· Issue o Try to find the legal "issue": the question that the court has to address and resolve. o In our hypothetical statute: the issue would be does the statute in question violate the 1st Amendment rights of speakers? · Rule o Test or doctrine that the court will apply to analyze that issue. o Richard Spencer would most likely challenge that statute o Would a person of ordinary intelligence, looking at UF statute, make agues about the speech? · Analysis o Judge would apply that rule to the facts at issue. o Application of that rule or doctrine to the facts at question: the statute o Might ask: did UF anywhere else in that statute try to define what they meant by "offensive?" § But if UF didn't do that, then that statute would be struck down by violating the vagueness doctrine. · Conclusion o Holding—result that the court would reach in that case.

Types of judicial decrees: Temporary restraining order

· It is short term. · Sometimes we refer to them as TRO's. · Short, quick order—someone goes into court and tells the judge to stop what's happening. · The judge grants a short-term order to stop it now until he can go back more thoroughly.

Plaintiff vs. Defendant definition

· Plaintiff files the lawsuit against the defendant - In a libel suit, the person who has been libeled is the plaintiff and is the one who starts the suit against the defendant. · Person or entities you are suing is the defendant

Who reads the petitions?

· The clerks to the U.S. Supreme Court · Work for the justices and they channel the justice's belief systems. · The justices clerks are very powerful, and they recommend to their justice that they should hear this case for the following reasons that they deem important.

Types of judicial decrees: Preliminary injunctions

· When the judge can go back and look at it more thoroughly and do something different about it.