Midterm Review
Gibbons v. Ogden (1824)
"Steamboat Case." Supreme Court based on the "commerce clause." Ruled that only the federal level of government (not the states) could regulate interstate trade. -if it substantially affected commerce involving more than one state
Article II Section 1
"The executive power shall be vested in a President of the United States of America."
Jurisdiction:
"authority to speak the law" -a court needs jurisdiction over.. -the subject matter of the dispute (subject matter jurisdiction) AND -The parties (people/corporations) (personal jurisdiction) OR -Property involved in the case (in rem jurisdiction)
Gonzales v. Raich
(2005) The regulation (ban on homegrown medical marajuana) is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat (Wickard) or marijuana, has a substantial effect on supply and demand in the national market for that commodity.
Mediation:
(neutral 3rd party) mediator attempts to get parties to reach voluntary settlement -mediator need not be a lawyer -one person or a panel mediation may be ordered by a judge for instance small claims cases are referred to a mediator -mediator does not issue a decision -mediator is a form of assisted negotiation Mediation: procedure whereby a 3rd party assists disputants in achieving a voluntary settlement Benefits: tends to reduce antagonism between the disputants and allow them to continue their business relationship
Employee Speech:
- "Private companies are not covered by the 1st Amendment when it comes to recognizing the "speech rights" of its employees. More specifically, private companies commonly require their employees to follow a dress code at work, and they have disciplined and discharged employees for being critical of the employer on a blog or social media."
Bill of Rights
- was adopted in 1791 -consists of the first 10 amendments of the constitution
A court may overturn the decision of an arbitrator if the arbitrator acts in_________ or __________ his _________
-A court may overturn the decision of an arbitrator if the arbitrator acts in bad faith or exceeds his power
___________ generally takes less time & is less expensive than a civil lawsuit
-Arbitration generally takes less time & is less expensive than a civil lawsuit
Article I
-Congress -establishes congress constitutional authority
1st amendment: Free Speech / Establishment clause & Free Exercise Clause:
-Corporations have rights under the U.S. constitution, similar in many ways to the rights we have as individuals -corporations have the right to engage in speech concerning political issues ("political speech") -gov't regulation of political speech must be "content or viewpoint neutral" ; however gov't can impose reasonable "time, place and manner" restrictions on speech -Commercial speech (advertisements) is not given as much protection as political speech. Gov't can prohibit false or misleading commercial speech
Article I Section 5
-Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. -Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Separation of powers
-Executive branch carries out the laws -Legislative makes the laws (representative government) -judicial system interprets the laws Purpose of separation of powers: Checks and Balances
Article II (2)
-Executive powers, the President -office of the president -qualifications to be elected -electoral system -emoluments clause
Amendments Affecting Business
-First (Freedom of speech/religion) -Fifth (Due Process, Takings clause) -Fourteenth (Due Process, Equal Protection)
Article IV Section 1:
-Full faith and credit shall be given in each state to the public Acts, Records, and judicial Proceeding of every other state
Article IV (4)
-Full faith and credit, Privileges, and Immunities
Brandenburg v Ohio
-KKK leader made a speech and was later convicted under ohios syndicalism laws -two pronged test to see if he had right to free speech 1. speech can be prohibited if it is "directed at inciting or producing imminent lawless action" 2. it is "likely to incite or produce such action"
Procedural due process:
-Law is applied and used to deny someone's "life, liberty, of property" -notice of the charges/impending loss -right to respond/ contest the matter -unbiased decision maker to decide the matter Ex: if you are charged with a crime, you get notice of charges, a trial process, and a state judge to decide the matter
Equal Protection: tests to determine whether laws violate equal protection are..
-Rational basis -Intermediate Scrutiny -Strict Scrutiny
A court may over turn the arbitrators decision if the arbitrator is shown to be prejudiced or biased in favor of one of the parties in the arbitration case
-True, if the arbitrator is found to have acted in Bad Faith
Article III
-US Supreme Court
Case law aka Common Law:
-a courts decision in a criminal trial or a non-criminal lawsuit -"judge made law" -
How do you get into Federal court for civil matters?
-a federal statue or a federal treaty -courts of limited jurisdiction (patents, Veteran's cases, bankruptcy, tax court) -when the plaintiff and defendant are from two different states AND -the amount in dispute is greater than $75,000
Federalist:
-a relatively weak federal gov't and relatively strong state gov't -powers not specifically given to the federal gov't are reserved for the states -each state can rule on behavior within its boarders but Federal gov't has ultimate authority over behavior that reaches jurisdiction -states can generally be more strict in their criminal laws, but not more lenient.
Long arm statue:
-are state laws used by state courts to obtain jurisdiction over out-of-state defendants "doing business in state", breach a contract with a state resident, have an accident in the state, etc -Cole v, Mileti (negotiated contract)
Masterpiece Cakeshop v. Colorado Civil Rights Commission
-cake owner refused to design a cake for gay couple getting married -in court the judge said since he oped a business to the public, he should be open to everyone
Rational Basis test for equal protection (minimal scrutiny)
-challenge to law, likely to fail -minimal scrutiny -laws regulating economic or social matters -classification is valid if it relates to any legitimate government interest Ex: tax brackets
Dennis v. US
-communist leaders were arrest for knowingly conspiring to teach and advocate the destruction the overthrow of the US government -such advocacy created a "clear and present danger" that threatened the government
The Substantial Effect Rule
-congress can regulate any activity that has a substantial economic effect on interstate commerce -impact of commerce clause
Citizen United v. Federal Election Commission
-congress passed the McCain-Feingold Law which prohibited corporations and labor unions from funding "electioneering communications" to support political candidates -supreme court decided that "if the 1st amendment has any force, it prohibits congress from fining or jailing citizens, or associations or citizens, for simply engaging in political speech." -since the 1st amendment does not distinguish between "wealthy individuals and corporations" it decided that congress could not prohibit the "speech" of corporations in their support of specific political candidates
Civil Law:
-deals with private or public wrongs or rights between people, as opposed to criminal law ex: contracts, real estate, divorce, probate case -most business law issues are civil law issues -person filing lawsuit if called plaintiff and the person against whom a lawsuit is filed is a defendant
Wickard v. Filburn (1942)
-federal law involving wheat production,, challenged by farmer The Court maintained that Congress' power extends even to intrastate commerce if interstate commerce could be affected by it. Also stated that individual non-activity in the marketplace is actionable if that activity could have a substantial effect on interstate commerce.
Intermediate Scrutiny
-gender, legitimacy -govt goal needs to be important to withstand challenge -important reason for law -need more than just rational basis : law must be substantially related to important government objective Ex: women owned business incentives
federal appellate courts are organized by their..
-geographic region
Political speech
-given most protection -business owner commenting on political speech is protected -citizens united held that corporations have free speech rights
Free Exercise Clause
-gov't can't stop you from following your religion -reserves the right of American citizens to accept any religious belief and engage in religious rituals -the supreme court has been inconsistent with dealing with this problem
Texas v. Johnson
-gregory burned a US flag as a means of Ronald reagan protest, johnson was tried and convicted under texas law outlawing flag desecration, he was sentenced to one year in jail, and $2,000 in fines -went to supreme court were they found that the burning of the flag was protected by the 1st amendment -"if there is a bedrock principle underlying the 1st amendment, it is that the govt may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable
Tinker v. Des Moines (1969)
-group of kids wore black arm bands to school for a truce for Vietnam the war, were asked to take bands off, refused and then were suspended from school -the school violated the students free speech by suspending them for wearing their black bands
The hobby lobby case
-held that a for-profit corporation could have its own religious beliefs
Katzenbach v. McClung (1964)
-hotel and restaurant desegregation -federal civil rights legislation noted burden to interstate commerce when travelers couldn't get a meal or a room
Dormant Commerce Clause
-idea that congress has exclusive right to regulate interstate commerce so- -states do not have the authority to regulate interstate commerce -known as the "negative" aspect of commerce clause -ex: some states don't allow wine to be shipped in to protect local wineries
Whats the difference between Civil law and Criminal law?
-in criminal law the gov't prosecute criminals, with civil lawsuits private parties are involved Penalties: in civil lawsuits money, and in criminal lawsuits monetary fines, jail time and possible capitol punishment (death penalty)
Common Law:
-is made by state court judges when deciding civil lawsuits -can also be made in criminal cases, and in federal cases, but this occurs less often
5th amendment
-limits the federal governments authority to deprive a person of "life, liberty of property, without due process of law" -the same limitation is found in the 14th amendment as to the authority of state and local government Procedural Due Process: the process by which law is applied and used to deny someone "life, liberty, or property Substantive Due Process: the fairness of the law used to deny someone "life, liberty, or property"
Amending the Constitution
-may be amended by a 2/3 vote of the US house and senate followed by a ratification vote of 3/4 of the states -may also be amended by 2/3 of the states calling for a constitutional conventional followed by a ratification vote by 3/4 of the states -constitution was last amended in 1992, there was 27 amendments
Burwell v Hobby Lobby
-owners of a for profit hobby lobby would not provide health coverage of contraception to employees based on the owners religious objections -since abortion goes against their religious beliefs, they don't have to provide that health care benefit to their employees -protected under the Religious Freedom Act of 1993
Mediation is appropriate when:
-parties want to continue and preserve relationship -going to court would adversely impact morale and productivity -confidentiality is important -there is a need for creative solutions and realistic assessments -the parties want to reach mutually satisfactory solutions -there are no concerns about future litigation and repetitive claims -there are no novel legal claims or a desire to make case law -the cost of litigation is likely to exceed the value of the dispute -neither parties case is a clear winner -the decision maker for one or both parties will not participate -a party cannot effectively represent his or her best interests -a person who is important to this case is not present -there is a threat of criminal action -discovery is needed -one of the parties will not negotiate in good faith and only wants to use mediation as a stalling technique -a case involve governmental and/or political issues
precedent
-past case decisions
Establishment Clause
-prohibits the government from making any law "respecting an establishment of religion" -forbid the govt from establishing a official religion but also prohibits the goats actions that unduly favor one religion over another. -it also prohibits govt from preferring religion over non-religion or non-religion over religion
Strict Scrutiny
-race, national origin, citizenship status -best chance of challenger of law to win -government must have compelling interest -no narrower alternatives -need compelling state interest -presumed unconstitutional -law must be narrowly tailored to meet goal -Ex: school segregation, govt contracts to minority owned businesses
Employment Division v. Smith (1990)
-respondents smith and black were fired for doing peyote as part of their religious rituals, free exercise clause does not excuse one to do illegal acts
Executive orders:
-rules made by the top person in the executive branch of gov't- president , governor, or mayor -have the "power" of the law, meaning that they must be followed like a law example: governor telling people to leave with a hurricane coming
Law
-rules that identify "right and "wrong" behavior, based on societal or community values -recognizes rights, duties, and responsibilities that we have as a society
Appellate Courts:
-state/federal courts can affirm, modify, reverse or reverse and remand the decision of the lower court -appellate courts look for legal errors made by the judge in the lower court case -base their decision on the "paper record" created by the lower court and the arguments of the parties - their written beliefs and sometimes oral arguments
Article IV (4) Section 2:
-the citizens of each state shall be entitled to all privileges and Immunities of citizens in the several states -a person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on Demand of the executive Authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
Article I, Section 8
-the congress has the power to lay and collect taxes to regulate commerce with foreign nations, and among the several states, and with the Indian tribes -to establish .. uniform laws on the subject of bankruptcies throughout the united states -to establish post offices (mail power) -to promote the progress of science and useful arts, by securing the limited times to authors and inventors the exclusive right to their respective wrings and discovering (patent and copyrights) -to continue tribunals inferior to supreme courts (fed court districts & appeal courts)
History of the Constitution
-the constitution was adopted in 1787 and was ratified by nine of the original 13 states in 1789 -the constitution consists of a preamble and seven articles -Article I establishes congress constitutional authority, while Article II and III do the same for executive and judicial branches of government -Article IV includes privileges and Immunities Clause -Article V discusses the amendment process, Article IV includes the Supremacy Clause and Article VII indicated that the original constitution could be ratified by the vote of nine of the original thirteen states
Freedom of Speech / Freedom of the Press ( I ) first amendment
-the right to freedom of speech allows individuals to express themselves without government interference or regulation -the supreme court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech -the govt may prohibit speech that may cause a breech of peace or cause violence ex: fighting words
State court systems:
-trial courts and appellate courts -below district (or trial) court there may be courts of limited jurisdiction such as: -justices of the peace -small-claims courts -magistrate courts
Freedom of Religion: ( I ) First Amendment
-two clauses in the first amendment guarantee freedom of religion The Establishment Clause: prohibits the govt from passing legislation to establish an official religion or preferring one religion over another -it enforces the "separation of church and state", however some governmental activity related to religion has been declared unconstitutional by the supreme court example: providing bus transportation for parochial students and the enforcement of "blue laws" is not prohibited -The Free Exercise Clause: prohibits the government, in most instances, from interfering with a persons practice of their own religion
How does federal gov't get jurisdiction over crimes?
-usually through commerce clause -goods that travel in interstate commerce (drugs, guns) -communicating across state lines (wire fraud) -things that affect interstate commerce (crops, hotels, restaurants) -sometimes though constitution provision, mail power or mail fraud, or because of trust relationship (crimes on Indian reservations may be federal)
Hybrid ADR
-where the parties try to negotiate a resolution themselves, but if not, mediator can decide
Bill of Rights : break it down
1. Speech & Religion 2. Guns 3.Soliders loding 4. Search and Seizure 5.Due Process 6. Counsel, Confrontation, Criminal jury trial 7. Civil Jury Trial 8. Cruel and Unusual 9. Peoples Rights 10. States Rights http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm
First Admendment
1st Amendment ( I ) : -freedom of speech, freedom of religion, and freedom of expression from goverenment interference. -prohibits any laws that establish a national religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the right to peacefully assemble, or prohibit citizens from petitioning for a government redress of grievances -has been interpreted by the Court as applying to the entire Federal government even though it is only expressively applicable to Congress -the courts have interpreted the Due Process Clause of the 14th amendment as protecting the rights in the 1st amendment from interference by state governments
A person who follows the shareholders view of corporate social responsibility is to:
A person who follows the shareholders view of corporate social responsibility is to: -maximize profits and follow all applicabale laws
A plaintiff who wants to file a civil lawsuit against a defendant must find a court that has both
A plaintiff who wants to file a civil lawsuit against a defendant must find a court that has both -Personal jurisdiction over the defendant -subject matter jurisdiction over the dispute
A statue passed by a city council is also called an..
A statue passed by a city council is also called an..ordinance
US v. Morrison
A woman attending Virginia Tech was allegedly raped by two men, Crawford and Morrison. Morrison was found guilty but then appealed to the school board and his sentence was lessened. Brzonkala, the woman who was raped, appealed her case under the Violence Against Women Act of 1994. Result: Congress does not have the power to pass such an act under the Commerce Clause or the 14th A. because the statute did not actually affect interstate commerce nor redress harm caused by the state. The court proceedings on the news discouraged people from going to the University which led Congress to be able to use the commerce clause.- Congress does not have this power. Only states do.
Article I Section 7
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. -how a bill becomes a law
Article I Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article V
Amending the Constitution
The Award:
An Arbitrators decision -usually has to be in writing, but not always -no money has to change hands Pros: Binding, cheaper than litigation, efficient, private, can choose a highly qualified person Cons: Still a fee associated (can be more than litigation), can in some cases be appealed, written opinion not always given, arbitrator do not have to follow precedent so results can be unpredictable -discovery not available, so have to question a lot of witnesses -can be misused (to quash the class action rights, to unusual rules of procedure) -typically only overturned if arbitrator acted in bad faith or exceeded his power
Arbitration:
Arbitration is a process where the parties make their case to a neutral 3rd party arbitrator, and the arbitrator makes a decision, called an "award", arbitrator is mutually agreed upon -the arbitrators decision is usually legally binding
Criminal law is an example of_________
Criminal law is an example of public law -criminals did harm to society when committing a crime
5th amendment:
Due processes of law; Double jeopardy: self incrimination; Taking clause - Kelo case
Article II Section 3
Duties of the President -State of the Union
14th amendment :
Equal Protection Clause: does not require that all people be treated the same, instead "similar situated" -if state govt passes laws that treats groups of ppl differently, the law must justify why such unequal treatment is necessary Example: 16 years olds can't drive but 18 years olds can
The Articles of Confederation (1781)
First American constitution that established the United States as a loose confederation of states under a weak national Congress, which was not granted the power to regulate commerce or collect taxes. The Articles were replaced by a more efficient Constitution in 1789. -little power in federal government -no power to tax or regulate commerce between the states
Article V (5)
How to amend the constitution
Article III Section 2
Jurisdiction of courts
Milton Friedman is most closely associated with..
Milton Friedman is most closely associated with.. -the shareholders view of corporate social responsibility
Article II Section 2
Powers of president, including commander in chief, appointment of officers in various executive departments with confirmation by Senate, ability to require consul by said officers, grant reprieves and pardons, power to make treaties with advise and consent of Senate,
Article IV Section 2
Privileges and Immunities of each state granted to all citizens of the US -A person who has committed a crime and fled out of state has to be moved to a court that has jurisdiction of the crime
Procedural Law ("How")
Procedural Law ("How"): -how to enforce your rights -process by which law is enforced -establishes penalties or remedies
Public Law v Private Law:
Public Law: relationship between members of society and government (anti trust law and criminal law) (primarily statutory and administrative law) Private Law: relationship between members of society (contract law, property law, landlord tenant and corporation law) (primary common law)
Article VII (7)
Ratification -the constitution creates a federal form of government by identifying specific powers given to the federal government while reserving other reserving other powers to the states by way of the 10th amendment -the 10th amendment states that "powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. -this means that states have broad authority to regulate citizens health, safety and welfare -states also have police power generally, federal gov't does not have police power
Article VII
Ratification of the Constitution
6th amendment:
Right to counsel and trial
Substantive Laws ("What")
Substantive Laws ("What"): -laws that define, regulate and create legal rights and obligations
Article VI
Supremacy Clause The Constitution is the SUPREME law of the land -federal law has power over state law
Article VI (6)
Supremacy clause: under the supremacy clause, conflicts between federal statues and the constitution are resolved in favor of the constitution -State court judges, because of the supremacy clause, must follow the US constitution and federal laws when there is a conflict with state law. -Ex: ray moore not respecting supreme courts decision on same sex marriage
U.S. v. Lopez (1995)
Supreme Court declared Gun Free School Zones Act exceeded Congress's Interstate Commerce Clause power and was therefore unconstitutional. First federal law declared to exceed commerce clause since the 1930s (Devolution Revolution?)
The American court system includes a __________ system and _____ individual court systems in the different states
The American court system includes a Federal system and 50 individual court systems in the different states
Katzenbach v. McClung (1964)
The Court found that discrimination in restaurants posed significant burdens on "the interstate flow of food and upon the movement on products generally." Furthermore, argued Justice Clark, discrimination also posed restrictions on blacks who traveled from state to state. Congress's solution to this problem was appropriate and within its bounds to regulate interstate commerce.
Article I Section 2
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. -representatives direct taxes shall be appointed among the several states which may be included within this union, according to their numbers, which shall be determined by adding to the whole number of free persons, including these bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.
Article II Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article I Section 3
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. -the Senate shall have the sole Power to try all Impeachments
Article I Section 6
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Article I Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Article IV Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
The Declaration of independence (1776)
The fundamental document establishing the US as an independent nation, adopted on July 4, 1776. It declared the 13 colonies independent from Britain, offered reasons for the separation laid out the principles for which the Revolution was fought
Article III Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article III Section 1:
The judicial power of the US, shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. Th judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office
Article IV Section 3
The part of the U.S. Constitution (article and section) that gives Congress the power to create new states
4th amendment:
Unreasonable search and seizure: probable cause for a search/arrest warrants -Probable Cause: "substantial likelihood that the person has committed or is about to commit a crime"
Depositions:
Use: oral questioning, under oath, to preserve testimony for trial and get more facts Misuse: harassment, delay, making someone uncomfortable for the other side
arbitration clause
a clause in a contract that requires disputes arising out of the contract to be submitted to arbitration -names of the parties, what is in dispute, money/damages involved
Natural Law:
a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their native intelligence -a universal law applicable to all human beings and that this law is of a higher order than a positive, or conventional, law
Commercial speech
advertising a product or service -is protected, but false or misleading commercial speech can be prohibited or regulated
The Commerce Clause (Article I, Section 8)
an important source of federal lawmaking -"the congress shall have power.. to regulate commerce with foreign nations, and among the several states, and with the Indian tribes -the key to federal legislation in many areas -anything not reserved by Fed govt is delegated to the states
Article I, Section 8, Clause 18
congress has the power "to make all laws which shall be necessary and proper for carrying into execution the forging powers , and all other powers vested by the constitution in the government of the united states
Criminal Law:
deals with wrongs against society for which society demands redress -plaintiff is gov't -criminals are punished with fines and jail time
stare decisis
deciding new cases with reference to former decisions, or precedents
Article III Section 3
defines treason
8th amendment:
excessive bail/fires & cruel & unusual punishment
Chaplinsky v. New Hampshire (1942)
fighting words: words that "inflict injury or tend to incite an immediate breach of the peace" -are not covered by the 1st amendment -chalinsky called a city masked a do damned racketeer and a damned fascist in a public place. these were considered fights words and he was not protected under the 1st amendment and was arrested and convicted under a state law for violating a breach of the peace
Article IV Section 1
full faith and credit clause -states will respect the public records and acts of other states
Discovery process:
is intended to make trial less a blindman's bluff and more a fair contest, with the basic issues and facts disclosed to the fullest practicable extent Purposes of discovery: -preserve evidence -limit element of surprise -narrows issues for trial -impeach witnesses at trial
Does a law ever survive strict scrutiny?
korematzu v. US -
Administrative Law
legislatures delegate interpretation and enforcement of statues to admin agencies -administrative agencies combine functions normally divided among the 3 branches of government into a single government entity -AA's may issue rules, hear cases, and enforce the laws -Administrative Law: administrative regulations and decisions -administrative agencies rules now affect virtually every aspect of a business operation including capitol structure, financing, firing, regulations with employees, labor unions, ect.
ADR
negotiation, mediation, arbitration -any procedure or method for resolving dispute outside of the traditional judicial process -is normally less expensive and less time consuming
Article I Section 9
powers denied to the federal government -No Bill of Attainder or ex post facto Law shall be passed. -No Capitation, or other direct, Tax shall be laid -No Tax or Duty shall be laid on Articles exported from any State. -No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. -No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. -No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Article I Section 10
powers denied to the states -No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. -No state shall...etc
The US Supreme Court:
reviews cases from: -us district courts -us court of appeals -highest courts of the states -9 justices appointed for life by the president
which types of courts have limited jurisdiction?
specialty courts -bankruptcy, small claims, appellate
Substantive due process:
substantive due process: Fairness of the law used to deny someone's "life, liberty, or property" -laws affecting constitutional rights must be fair -if a law abridges a fundamental right (right to privacy, vote, travel, free speech) then it must pass strict scrutiny analysis (strict scrutiny is very hard to pass the gov't, must show a compelling reason to limit the persons rights, and that the law is narrowly tailored to meet that goal)
The Commerce Clause
the congress shall have power to regulate commerce with foreign natrons, and among the states, and with Indian tribes -the key to federal legislation in many areas -Substantial Effect Rule: congress can regulate any activity that has a substantial economical effect on interstate commerce -Any time Congress passes a law, it must identify the part in the Constitution that gives it the authority to make that law. State legislatures, on the other hand, can pass laws based on their broad police power authority to regulate the "public health, safety, morals, and welfare." -US vs Morrison: violence against women, federal statue -US vs Lopez: guns impeding to learning, disruptive to commerce -Gonzales vs. Raich: prohibit interstate possession of weed -Wickard vs. Filburn: supply & demand of weed Dormant Clause: congress has exclusive right to regulate interstate commerce so states cannot -"negative" aspect of clause -wine shipped into states
Establishment clause:
the government cannot dictate an official US religion
Judicial Review
the process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch -Marbury v Madison (1803) - "it is emphatically the province and duty of the judicial department to say what the law is"
District court:
the trial court in the federal system
Negotiation:
typically 1st method, parties make settlement offers, and counter offers -may be face-to-face or through lawyers
How is venue different than Jurisdiction:
venue: "appropriate location" for a trial; criminals frequently have venue changes due to "pretrial publicity" that interferes with the defendants right to an "impartial jury"
