LEGL Test 1 PDF

Test 1 Monday, January 6, 2025 10:44 AM 1/8 What is a Law? IRAC - technique of breaking down questions Issue: is granny's "statement" a law? Rule: set down by the state (think government), backed up by enforcement by the state Analysis: taking facts and applying the rule to the fac...

Test 1 Monday, January 6, 2025 10:44 AM 1/8 What is a Law? IRAC - technique of breaking down questions Issue: is granny's "statement" a law? Rule: set down by the state (think government), backed up by enforcement by the state Analysis: taking facts and applying the rule to the facts, while it may be a rule in granny's glass of water when she asks, she is not the government, cannot use the resources of the her rule Conclusion: granny's statement to her grandson is not a law Laws? Who needs them? - Maybe we do need laws after all Keep us out of trouble Certainty and predictability (knowing the rules) More than just avoiding sanctions- use the law to our advantage Sometimes law is specifically designed in a way that we can use to our advantage (intelle incentives) More than just IP, Tax laws, etc. - develop new businesses around specific laws Something for the sales and marketing team - use compliance as a selling point Professional services Influencing laws in your favor Lobbyists working for businesses Rule of Law Laws are generally applied - requires solid, stable institutions ○ "No one is above the law" Rule of Law to business is essential - need to know how to play the game (certainty and p Helps reduce at least one form of transaction costs (money spent to enter into and enfor 1/13 Property defined - you have the same "property" as Elon Musk Property is not the stuff, it is the right Property is not the same as resources, it is the right  house that you get her a e government to enforce ectual property, tax predictability) rce contracts)  Helps reduce at least one form of transaction costs (money spent to enter into and enfor 1/13 Property defined - you have the same "property" as Elon Musk Property is not the stuff, it is the right Property is not the same as resources, it is the right Right to property is the basis for a private market and basis for modern business Classifications of Law Common Law (system level) ○ Judge-made ○ Precedent (stare decisis) - let the prior decision stand ○ Case law Civil Law (system level) ○ Relies heavier on legislation (judges do not interpret) Criminal Law and Civil Law (different meaning) What sanctions apply in each? ○ Criminal - imprisonment, fines, removal from office ○ Civil - compensatory, consequential, punitive damages, equitable remedies Hierarchy of Laws 1. US Constitution an Amendments 2. Federal Statutes - laws made by congress 3. Federal Regulations - made by federal agencies 4. State Constitutions 5. State Statutes 6. State Regulations 7. Local Ordinances 8. Case Law Reasons for Agencies Specificity - fill in where the legislative branch cant provide enough detail Expertise - subject matter experts on specific issues Protection - assist public when business practices are causing injury Regulation - replace competition with regulation in certain areas Services - administration of government programs and services Criticisms of Administrative Process Hard to hire the best, hard to fire the worst, and political ties A lot of red tape, favors industry with policies Adds to cost - directly through funding of agencies, who pays for the regulations in the en Administrative agencies rce contracts) nd? Tax dollars Criticisms of Administrative Process Hard to hire the best, hard to fire the worst, and political ties A lot of red tape, favors industry with policies Adds to cost - directly through funding of agencies, who pays for the regulations in the en Administrative agencies Boards, bureaus, commissions, and organizations that make up the governmental bureau Corporations (and other business entities) Owned by shareholders - can mean a lot of different things depending on type of organiz Corporations organized in certain way ○ Board of directors oversee business, hire officers who then hire rest of employees ○ Officers and managers are in charge of day-to-day business operations What issues could this set-up create? Principle - agent problem (are they doing what is in the best interest of shareholders) Solved by corporate governance Specific Sense of Corporate Governance Laws, policies, and procedures that protect the property interest that owners have in the Try to prevent people inside the company from abusing their positions for their own adva of the owners of the company Shareholder primacy - everything a business does should promote the values and help th General Sense of Corporate Governance Expand corporate governance to include responsibility of company to customers, vendor ○ Gained a lot of traction but now controversial ○ Diversity, environmental sustainability, community involvement nd? Tax dollars ucracy zation e business antage to the detriment he shareholders rs, society  Shareholder primacy - everything a business does should promote the values and help th General Sense of Corporate Governance Expand corporate governance to include responsibility of company to customers, vendor ○ Gained a lot of traction but now controversial ○ Diversity, environmental sustainability, community involvement ○ Stakeholder theory - expanding role of the business past shareholder 1/15 Origins of the Constitution Remember the Articles of Confederation? ○ Strong sovereignty of the states ○ Weak federal government ○ One of the main concerns was economic issues, states could impose protectionist m states Came together for a series of compromises ○ Between branches of government ○ Between state/federal authorities ○ State versus state ○ Between the people and the government Separation of Powers Horizontal: branches of government ○ Legislative - make ○ Executive - enforce ○ Judiciary - fair process, interpret, and even invalidate laws § Marbury v Madison, 5 U.S. 137 (1803) the Supreme court gave "judicial revie Vertical: Federal - state/local ○ Federalism ○ 10th Amendment § "The powers not delegated to the United States by the Constitution, nor proh are reserved to the State respectively, or to the people." Supremacy Clause Constitution is supreme over all laws Federal law is supreme over state law Preemption Preemption Type 1: Express ○ Medical devices: 21 U.S. Code & 360K - state and local requirements respecting dev Type 2: Implied - so pervasive and comprehensive that little room exists for states to man impossible to comply with both federal and state (conflict) ○ Controlled Substance Act: 21 U.S. Code & 903 - Application of State law he shareholders rs, society measures hurting other ew" hibited by it to the States, vices neuver (field) or Preemption Type 1: Express ○ Medical devices: 21 U.S. Code & 360K - state and local requirements respecting dev Type 2: Implied - so pervasive and comprehensive that little room exists for states to man impossible to comply with both federal and state (conflict) ○ Controlled Substance Act: 21 U.S. Code & 903 - Application of State law Contract Clause "No state shall pass any Law impairing the Obligation of contracts." States cannot enact laws that impact rights and duties under existing contracts (private (d public contracts (bonds, pension plans)) Does not apply to federal government State laws passed during emergency situations can be approved ○ Minnesota - mortgages in Great Depression (Home Building & Loan Association v B 1/17 Commerce Clause Foreign commerce: treaties, tariffs, embargos ○ Office Foreign Assets Control and other Import/Export issues § Tips and tricks: hire third party companies to keep from doing business with e working with terrorist groups, sending prohibited material and/or technology Regulation and impact on Interstate Commerce (more obvious/direct relationship) ○ Gibbon v Ogden - states cannot interfere commerce ○ Expansion from engaged in interstate commerce to affecting interstate commerce interstate commerce) - hard to imagine what they cant regulate (Wickard v Filburn) Katzenbacj v Mcclung (US 1964) Facts: the US passed the civil rights act of 1964, prohibiting racial discrimination in restau barbecue in Birmingham prohibited African American patrons from eating inside the rest evidence that any patrons living outside of Alabama had ever eaten at the restaurant. Oll Issue: does the very limited amount of food which Ollies purchased through interstate co restraint subject to CRA regulation Rule: substantial economic effect on interstate commerce Different Kind of Case West lynn Creamery, Inc v Healy ○ Massachusetts passes a tax on imported milk ○ With the proceeds, they will pay the Massachusetts' dairy farmers who are hurt by milk prices In other words, ○ The Dormant Commerce Clause restricts the States from passing certain laws even contradictory federal law - stop discriminating against other states Bill of Rights vices neuver (field) or discharging debt) and Blaisdell, 290 U.S. 398) embargoed countries, y overseas (basically if it aides ) urants and hotels. Ollie's taurant. There was no lies was sued ommerce makes the the cheaper out-of-state though there is no  milk prices In other words, ○ The Dormant Commerce Clause restricts the States from passing certain laws even contradictory federal law - stop discriminating against other states Bill of Rights First ten amendments to the Constitution are the Bill of Rights 12 voted on and 10 passed, total amendments now 27 Prohibition on government power - defining citizens' personal rights (freedoms) Not absolute Limitations based on competing public policy Exists to remove certain issues from political process and ballot box Vary from time to time (especially during emergencies) Part of the 5th Amendment Has a lot in it Grand jury Double jeopardy Right against self discrimination Due process Eminent domain (government taking your property) 1/22 Eminent Domain Test (when the government can take land) 1. A taking a. Usually clear like knocking on a persons door and telling them they are taking it b. Does not include taking away the use of a land (cannot keep chickens) 2. Public use a. Does not mean that the public will use b. Berman v Parker, beautification of land and Kelo v New London, economic redevelo companies 3. Just compensation a. Generally market price (negotiated price or let a court help settle the issue) b. Don’t care about sentimental value Part of the 1st Amendment Freedom of speech Protects the voice of the minority Exceptions: ○ Fighting words, incitement, defamation, obscenity, violates intellectual property law restrictions Commercial free speech ○ Not originally thought to be included in 1st Amendment ○ Came to light in the 1970s though there is no opment with private w, time place manner  Exceptions: ○ Fighting words, incitement, defamation, obscenity, violates intellectual property law restrictions Commercial free speech ○ Not originally thought to be included in 1st Amendment ○ Came to light in the 1970s ○ Often to do with advertising, Bigelow v Virginia abortion advertising ○ Central Hudson - created standards: lawful activity, governmental interest substant governmental interest, not more extensive than necessary ○ Easier to restrict commercial speech than individual speech Compelled Commercial Speech ○ Zauderer v Office of Disciplinary Counsel of Supreme Court of Ohio - disclose certai disclosure requirements are reasonably related to the State's interest in preventing consumers." 1/24 Freedom of Press Only organized private business given explicit constitutional protection Prior restraint - pre-censorship, the government says the press cannot release a statemen ○ Generally must publish work before censorship permitted (may change your mind o ○ Defamation: falsehood that is injurious to the good name or reputation of another § Libel - printed defamation § Slander - spoken defamation Freedom of Religion "Congress shall make no law respecting an establishment of religion, or prohibiting the fr Two "clauses" ○ Establishment ○ Free exercise Fourteenth Amendment No state shall make or enforce any law which shall: ○ Abridge the privileges or immunities of citizens of the united states ○ Deprive any person of life, liberty or property, without due process of law ○ Deny to any person within its jurisdiction the equal protection of the laws Due Process Prevents governmental bodies from acting in a manner that is arbitrary, capacious, or un action" Procedural due process involves cases (for example) regarding whether: ○ Proper notice was given ○ Proper hearing was conducted Substantive due process (implied fundamental rights) involve cases (for example) regardin ○ Right to work ○ Right to marry  w, time place manner tial, directly advance in information "as long as g deception of nt or content) ree exercise thereof" nreasonable - "state ng:  Procedural due process involves cases (for example) regarding whether: ○ Proper notice was given ○ Proper hearing was conducted Substantive due process (implied fundamental rights) involve cases (for example) regardin ○ Right to work ○ Right to marry Incorporation doctrine ○ Due process clause has been used to incorporate most of the Bill of Rights and mak states ○ Gideon v Wainwright - appointment of counsel applied to Florida § Break-in at a pool hall, Gideon arrested for petty larceny, cant afford an attor § Supreme court says 6th Amendment applies to the states Equal Protection Clause guarantees that people will not be treated differently under law without adequate Any law creating different classifications is subject to one of three tests 1/27 The Court System and Litigation Most disputes don’t go into litigation Who are the players in the system? Lawyers ○ Public servant § Ensure the fair administration of justice § Proceedings are conducted in a dignified and orderly manner ○ Advocate § Engage in adversarial process with other lawyers § Present evidence, points of law, arguments, etc. § Help to inform both the judge and jury in making decisions ○ Counselor § Attorney-client privilege - lawyer cannot reveal confidential information and testify against client Magistrates, judges, justices ○ Triers of law always, sometimes triers of fact, written opinions only at appellate lev ○ Essentially operate and control the courtroom and really entire litigation process ○ Generally consider them "triers of law" exception "triers of fact" when there is no j ○ Trial level - "Judges" (some are called "Magistrates" depending on level of court usu ○ Appellate level - often "Justices" but can also be called "Judges" § Hear appeals from lower courts alleging problems with the application of the § Generally provide reasons for their decision in writing ("opinions") Jurors ○ "tiers of fact" ○ Traditionally 12 jurors but sometimes less ○ Most states require unanimous decisions (trend is moving away from this) ng: ke provisions applicable to rney and gets convicted e justification cannot be compelled to vel jury (bench trials) ually) e law  § § Generally provide reasons for their decision in writing ("opinions") Jurors ○ "tiers of fact" ○ Traditionally 12 jurors but sometimes less ○ Most states require unanimous decisions (trend is moving away from this) § Recently the Supreme Court said must have unanimous verdicts in major crim Dual Court System Federal and State Federalism Similar structure with Trial Courts - Appellate Courts - Supreme Court (highest appellate c Jurisdiction - a court's power to enter a judgement against property or person Subject matter jurisdiction - can the court settle disputes of this type? ○ AND Personal jurisdiction - does the court have the right to force a person to attend a trial and to render a decision? minal cases courts) d have power over them Subject Matter Jurisdiction 1. General v Limited State Matter Jurisdiction a. Examples of Limited State Courts: juvenile, probate, traffic b. If not limited then general 2. Federal v State a. Exclusive State Jurisdiction - state crimes and family matters (divorce and adoption b. Exclusive Federal Jurisdiction - federal crimes, bankruptcy, patents and copyrights, cases between states c. Concurrent Jurisdiction - just about everything else More Requirements Personal Jurisdiction: Presence: being served in state Domicile/Place of Business: residence in state Consent: voluntarily showing up (express) or committed tort in state (implied) Minimum Contacts: enough interaction to have "purposefully availed" themselves of the Long-arm statutes: provision for the service of process beyond the boundaries of the state in ci (NOT) Extradition: voluntary turning in of alleged criminal following arrest from one state to an governors n) cases against the US, resources of that state ivil cases nother by the presiding  Domicile/Place of Business: residence in state Consent: voluntarily showing up (express) or committed tort in state (implied) Minimum Contacts: enough interaction to have "purposefully availed" themselves of the Long-arm statutes: provision for the service of process beyond the boundaries of the state in ci (NOT) Extradition: voluntary turning in of alleged criminal following arrest from one state to an governors Standing: Plaintiff establishing that he or she is entitled to have the court decide the dispute To establish standing, plaintiff must allege: ○ Litigation involves an actual case or controversy ○ Personal stake in the resolution of the case or controversy Civil Case Pre-Trial Procedure Plaintiff files complaint Complaints and summons served on defendant Defendant files motion or answer with possible counterclaim and defenses (if late, there rules in favor of plaintiff) Court rules on motions (could be dismissed due to statute of limitations for waiting too lo Attorneys conduct discovery procedures Parties may file motions for summary Discovery Trading of information during pre-trial So cases are based on merit and not surprises Narrows the issues disputed by the parties Encourages the settlement of the lawsuit and possibly avoiding actual trial Discovery Methods Interrogatories: series of written questions presented to the opposing parties Request for production of documents: either party asking the other to produce specific d Depositions: lawyer orally asks questions of the possible witness Request for an admission Trial Procedure Voir dire - parties and their attorneys select jury Attorneys present opening statements Plaintiff presents Jury Selection Prior to calling of the case, court clerk will have summoned prospective jurors Voir dire: speaking the truth ○ Selected jurors are called into jury box to conduct the examination For Cause challenge: cause or reason needs to be given to excuse a prospective juror (rela attorneys in the case, bias)  resources of that state ivil cases nother by the presiding is default judgement and ong) documents ated to a party including Jury Selection Prior to calling of the case, court clerk will have summoned prospective jurors Voir dire: speaking the truth ○ Selected jurors are called into jury box to conduct the examination For Cause challenge: cause or reason needs to be given to excuse a prospective juror (rela attorneys in the case, bias) Peremptory challenge: no cause or reason needs to be given to excuse a prospective juro number of these ○ Supreme Court outlawed racial discrimination in peremptory challenges (Batson ch ○ Gender discrimination Is banned in the jury selection process ○ Courts are divided on the issue of banning discrimination based on religion in perem Court instructs jury on the law Burden and standard of proof and deciding the case ○ Plaintiff/prosecution almost always carries the burden (innocent until proven guilty Criminal cases ○ Defendant is guilty beyond a reasonable doubt Civil cases - 2 standards ○ Preponderance of evidence 51% (more likely than not) or ○ Clear and convincing proof (in limited cases) Principle job of the jury is to determine what the facts are and to apply the law to these f judge ○ Verdict: decision by the jury announced in the courtroom wh en jury's deliberation ○ Judgement: judge deciding whether to accept the verdict or not § Not common but can have a "judgement notwithstanding the verdict" or "jud law" in federal civil cases Jury deliberates and makes decision (verdict Judge enters verdict Parties receiving adverse judgement files notice of appeal Parties file briefs in reviewing court Oral argument made in revising court Appeal Right to 1 appeal if procedures are followed, may get more if higher court agrees to hear supreme court ○ 9 justices - appointed for life by president with Senate's approval ○ Discretionary review - writs of certiorari (permission slit to have case heart by appe convincing 4 supreme court judges to hear it) and the rule of 4 ○ Refusal to hear a case means the lower court's ruling is upheld (though without SCO ○ About 100 cases/year (about 1% of petitions to hear cases) ○ Focused on split decisions from the circuit courts, hot topic cases (abortion, healthc legal issues Post-Trial Enforcement of Judgments  ated to a party including or, receive a limited hallenge) mptory challenges y) facts as instructed by the ns are over dgement as a matter of case - could wind up at ellate court, get it by OTUS precedent) care) sometimes esoteric  ○ Refusal to hear a case means the lower court's ruling is upheld (though without SCO ○ About 100 cases/year (about 1% of petitions to hear cases) ○ Focused on split decisions from the circuit courts, hot topic cases (abortion, healthc legal issues Post-Trial Enforcement of Judgments Execution: when a court official seizes some property of the debtor, sells is at public auct proceeds to the creditor's claim Garnishment: involves having a portion of the debtor's wages paid to the court, which in Res Judicata - the thing has been decided End of the road for the case Time for appeal has expired and a cause of action finally determined by a competent cou the parties anywhere Successive suits involving the same factual setting between the same parties cannot be m concluded Civil idea OTUS precedent) care) sometimes esoteric tion, and applies the turn pays the creditor urt cannot be litigated by made as dispute has been