Law Studying Exam 3 PDF

Tobacco Litigation: - 60's government made companies put caution stickers on cigarette packs. - People began suing for harm, but they lost because the argument was made that you took the risk of smoking it. - This issue ended in the 1990's when a huge tobacco company was sued fo...

Tobacco Litigation: - 60's government made companies put caution stickers on cigarette packs. - People began suing for harm, but they lost because the argument was made that you took the risk of smoking it. - This issue ended in the 1990's when a huge tobacco company was sued for billions. - **Master Settlement Agreement of 1998 -- constant lawsuits filed to tobacco companies, so they agreed to more advertisement on the hazards.** Gun Manufacturer liability: - People began suing gun companies because the guns they bought from them were used for acts of violence. - **PLCAA 2005 -- doesn\'t allow lawsuits against gun manufacturers. Whoever pulled the trigger is responsible** Tort Reform: - Trying to rain back how crazy some verdicts are - Capping the amount of punitive or compensatory damages *Chapter 9 Property Law:* - Real property: land (and all structures built on land) - Personal property: things you can hold + intangible things (stocks + bonds) - Intellectual property: - [Copyright] -- art, literature, etc. (books, music, code, etc.) - [Trademark] -- word or phrase -- sort of a symbol (Nike swoosh, etc.) - [Patent] -- technical inventions, mechanical processes -- protecting something you invent - [Mortgages] -- deceiving the bank on information to geta approved is mortgage fraud. - Eminent domain: allows government to take your property against your will (Taking Clause -- 5^th^ Amendment) - Requires compelling reason - "public use" and "just compensation" 2007-2008 Financial Crisis - Housing prices were just rocketing - Shift in philosophy, "right" to own a home so lending standards got lowered. - Subprime mortgages: loans made to financially weak individuals -- interest rates were higher on them, so bank made more money - Predatory lending: bank giving loans with high interest rates that are impossible to pay off. People bought anyway because houses were a good investment - "ARM" loans -- when they say you are in good shape, but in fine print - it can fluctuate - Mortgage-backed securities: the small banks gave out loans then bundled them up (called MBS) and sold them to bigger banks. These big banks made great money for all the people\'s interest on the mortgages and so did the investors. The value of MBS dropped since the value of houses did too. So, big banks went out of business. MBS are still legal just more careful now. - **TARP: \$700B bailout -- the US needed to fix this issue for the big banks, so the taxpayers had to pay for it all.** **Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) - purpose was the restore stability and oversight to the financial system so the same financial crisis wouldn\'t happen again** - Key changes - Regulation of risky derivative investments - Elimination of predatory lending - No more banks investing -- they make enough as is Wills/Trusts/Estates: - Executor: person who makes sure the persons property is divided equally and appropriately - Probate: courts that hear disputes about who gets what - Heir: if someone dies and leaves no will -- it goes to the heir. *Chapter 10 Contracts and Business Law:* - Express contract: written down - Implied contract: not written down but understood between parties \*BOTH EQUALLY VALID - Requirements for contract - Offer and acceptance - Mutal assent -- both parties agree - Consideration -- each party benefits from it (doesn\'t have to be equal) - Legal capacity -- not a minor, mentally disable, etc. - Legality -- contract doesn't stand if it involves illegal behavior - Force majeure: refer to a contract that cannot be enforced due to extenuating circumstances (ex. Hurricane) - Parol evidence rule: when signing a contract everything must be written down so there is no misunderstanding. These terms will be held up so if someone argues they "didn\'t see it", it doesn\'t matter. If you make a deal even after signing, only what\'s written down will be held up. - Uniform Commercial Code (UCC): the "backbone of American commerce". Set of laws that govern all commercial transactions. Not federal law but was adopted by all 50 states. Make a uniform of the language in sales. So, something in one state doesn\'t mean something different in another. Antitrust - Antitrust: actions by corporations that restrict free competition and free market. The idea is that if companies are competing to sell you a product, you are the beneficiary. Doing something to ruin the free market is a violation of antitrust laws. - **Sherman Antitrust Act 1890 -- to make sure companies cannot ruin free market** - Price fixing: when competitors agree to all set the same price for a good. Instead of competing they colluded to set a high price. Required to show that collusion occurred to prosecute. Different than oligopoly -- companies keep an eye on each other and play the space so they all benefit. They didn't collude. - Bid rigging: industries submit bids to do work (ex. House painting). If all companies agree to a certain price instead of bidding, then that violates antitrust laws. - Price gouging: when someone selling a good is taking advantage of the situational circumstances. It can be legal or illegal. It is illegal if it involves a necessity such as food or water during a hurricane. - 2023 FTC Amazon lawsuit (trial Oct 2026) - people saying amazon is creating a monopoly because they have complete control over the market - 2023 DOJ Google lawsuit (verdict in favor of DOJ) - People saying they want their search engines to pop up not only google. Google lost, found to be engaging in anti-competitive practices. Bankruptcy - Debtor: someone deep in debt - Creditor: someone owed money - The purpose of bankruptcy is to give debtors a fresh start and give creditors a fair way to get paid through bankruptcy trustee. Cases are heard in federal bankruptcy court. - Liquidation: When a business closes its doors because they have too much debt. Their assets are sold (liquidated) and creditors are paid at a percentage that is determined by the court. Secured creditors are paid first (ex. Banks, not customer) - Reorganization/Rehabilitation: When a business remains open because it doesn\'t want to go out of business. Bankruptcy trustee works to cut costs and renegotiate debt to plan. To goal is to reemerge as a credible business with creditors all paid. - Individual Bankruptcy: people with regular income looking to get bac on track. Work with bankruptcy trustee to create a 3--5-year plan to restore debts. This gives the individual protection from lawsuits from the creditors because a plan is currently being formulated to fix the issue. Preferable to Liquidation because valuable assets may be kept. - Non-dischargeable debts: debts you owe even after bankruptcy is filed. - Alimony, child support - Taxes - Judgements -- you get sued and loose (you owe the money) - Restitution - School loans *Chapter 11 Family Law:* - Marriage: **Obergefell v. Hodges (2015) - provides equal rights to same sex couples** - Reproductive Rights: **Roe v. Wade (2015) overturned by Dobbs (2022)** - Impact: Abortion is not outlawed but instead returned to individual states to decide. *Chapter 12 Civil Procedure:* - Adversarial legal system: Parties are fighting against each other to win, not fighting to figure out the truth. Founding fathers believe that the best way to get the truth is through an adversarial system. (US, UK, Canada, Australia, New Zealand) - Inquisitorial legal system: Working to find the truth with a professional judge. There are 2 sides represented by lawyers but in general the judge will ask what he wants. The judge wants the truth, not interested in one side winning. (Continental Europe, Africa, Asia) - Judge assignment/recusal: For example, if a judge is friends with a lawyer representing the case, you may ask for a recusal. Even if the judge says they can be fair -- there is an appearance of bias so they should recuse themselves so there won\'t be any questions about it. - Complaint: Must be personally served. Physically served by someone, not by just "telling" them. - Default judgment: if somebody is served and they ignore it then they risk losing. - Answer: either admit or deny the allegations - Motion to dismiss: you are not admitting or denying, rather you are saying there is no business for this to have been filed int he first place. You need grounds for a motion to dismiss -- that the claims you are being sued on cannot be a basis of a lawsuit (example. Suing for something that happened years ago -- insufficient even if it is true). - You can file a lawsuit for ANYTHING, it\'s the question of whether it would even go to court. Class Action Lawsuit - Class action lawsuit: For when many people have been harmed, and they all want to sue. Creates an easier method to a bunch of individual lawsuits don\'t have to be filed. - Individuals must be \"similarly situated" - same conduct and same harm. - Must be a large number of people - Class representative: person who represents to entire class in court -- doesn\'t mean they have been more harmed or less - Class certification: judge determines if members are "similarly situated". The company can argue against it but if the judge says they are then a notice must be sent out to all members. If you want to be a part of settlement -- you sign (allowed to opt out). Won\'t be much profit because so many people included -- lawyer will make most. - Advantages: You don\'t have to pay cost of anything just sign the document ad you will get your cut - Disadvantages: you won\'t get any money -- if you choose to bring an individual lawsuit you will have to pay for the entire process (might get more money out). Civil Procedure: Discovery - The purpose is to discover all the evidence the opponent has (ex. Documents, witnesses, emails, etc.) - mandatory to hand over - Requests for production: (tedious and time consuming) when lawyer goes to client and pulls all evidence. If you have evidence and don\'t turn it over, you risk losing the case - Interrogatories: where one side poses questions and the other must answer (ex. "have you ever been fired", etc.) - Depositions: where you can meet before a trial occurs -- not in a courthouse but still a legal proceeding (sworn under oath in an informal setting). Used to discover evidence and "lock in" testimony. Only lawyers and witnesses present, no judge. Transcribed and often videotaped. - Motion for summary judgement: if after all the discovery steps take place and the main facts determining legal claim show there isn\'t even a dispute anymore, that side can say there shouldn\'t even be a trial (there is a clear winner -- summary judgement can be granted). Different than motion to dismiss because lawsuit has moved forward through discovery phase. - Settlement rate for civil cases is 90-95% because it\'s expensive since no public defenders are provided and there is always risk of losing. - Mediation: conducted by lawyers and former judges -- most effective way to get lawsuits settled. Both sides come together a mediator tries to get both sides to meet in the middle (get defendant to pay more than wanted but plaintiff to get less than wanted). Both sides are in different rooms, so the mediator goes back and forth. Mediator must know case very well to be effective (lawyers and former judges) - hired by both parties and price usually split - Settlement conference: Judge acts as a mediator -- can be effective depending on judge. - Informal negotiation: lawyers talk to each other over phone and try to settle -- not very effective Civil Procedure: Trial by Jury (7^th^ amendment) - Jury is rarely used in other countries, only judge decides. We have it because dates to English common law. - Jury nullification: when a jury, after hearing facts and law renders verdict in contravention of the law. (ex. "Yeah, he did it, but we are going to vote not guilty") - History: 1700's American colonies under British control, we began resenting their rules. We were forced to follow their rules/laws even though we had no part in creating them. Jury nullification began here for people who didn\'t pay taxes -- verdict not guilty. When we got independence, this right was kept. Civil Procedure: Jury Selection - Process: Legal duty to report to court when summoned (randomly). Show up then divided into groups then sent to different rooms. Those smaller groups make up venires. - Venire: panel of prospective jurors. - Voir dire ("to see, to say"): selection of jurors -- chosen by lawyers and/or judges - Lawyers have control over selection: - Peremptory strike: No reason needed, just don\'t want them. Not unlimited, it depends - Strike for cause: say to judge the prospective juror cannot be fair (ex. They work for the company being sued). Reason is needed and the judge will decide if it\'s a good reason or not. Unlimited strikes. - **Batson v. Kentucky (1986) - Cannot use peremptory strikes just because of someone\'s race** led to\... **J.E.B v. Alabama (1994) - Cannot use peremptory strikes just because of someone gender** - Litigating Batson Challenge: moving party must establish [prima facie] ("on its face") - showing of unlawful use of peremptory strike. The responding party must provide "race-neutral\" basis for strike. Civil Procedure: Trial - Opening statement: typically, 15-20 minutes. Opportunity for lawyer to give a introduce the case to jurors. Not about evidence; They want to make a good impression. - Plaintiff's case: goes first because they brought the case. Witnesses called and evidence introduced - Directed verdict/judgement: chance for defendant to say that all plaintiffs evidence, although true, isn\'t enough to hold a trial. (Rare that directed verdicts are granted) - Defense case: call witnesses and introduce evidence - Closing arguments: typically, 30-40 minutes. Lawyers make their arguments (not evidence). The jury is instructed that words from lawyers\' mouths are not evidence -- ONLY what is spoken from witnesses. - Jury instructions: the judge instructs the jury on the law and how to evaluate credibility. This is what jurors took an oath to follow (apply facts to law). - Jury deliberations: deciding if liable or not liable. Federal court needs a unanimous decision while state courts depend. Pennsylvania requires 5/6. - Allen charge: when the judge and jury have been deliberating and cannot come to a verdict. The judge will bring jurors out and ask them to reexamine with an open mind and work together. You don\'t have to change your mind just breaking the deadlock. - Hung Jury: when the jury is still stuck. A new trial will happen, and new evidence is allowed to be brought in. Civil Procedure: Rules of Evidence - Admissibility of evidence: can evidence be introduced -- question of law for judge (not jury) - Direct evidence: you see someone point a gun and shoot a person - Circumstantial evidence: (equally valid). You hear gunshots, go around the corner and see someone holding a gun over the body. - Probative: relevant information - Prejudicial: it can cause face finder to be unfair. If evidence is overly prejudicial itll be inadmissible. (ex. Gruesome murder photos -- entering them is more prejudicial than probative, we know what happen we don\'t need to see) - Privilege: communications able to be kept confidential (cannot use as evidence). - Marital (between husband and wife) - Attorney -- client - Clergy - Doctor -- patient - Exceptions for crime-fraud, public safety, waiver. - Hearsay: statement made another time or written down. It is inadmissible because you cannot test it, the person who said/wrote it isn\'t here. - Exceptions for excited utterance (less likely to lie), dying declaration, business records, statement for medical treatment - Polygraph: generally inadmissible because results are driven by psychological stress. Some states allow is both sides agree to admissibility, PA: always inadmissible - Opinion testimony: opinions in testimony are inadmissible unless you are an expert. Lay witness only there for facts not thoughts. - Objections in court: judge can say upheld or overruled. Upheld = agrees. Overruled = continue with it. - Motions in limine: fight over admissibility before trial begins -- gives a judge more time to decide than in the moment *Chapter 13: Criminal Procedure* Criminal Procedure: Searches - Probable cause: required that more likely than not a crime was committed, and the evidence is present there - Must involve government agents + reasonable expectation of privacy for search (4^th^ amendment). Example, if a teacher goes through your bag and finds drugs, its allowed because it wasn\'t a government official. Another, if you are packing drugs in front of a window. - Exceptions for warrantless searches: - You give them consent -- they don't need probable cause or warrant - Police impound of car - Exigent circumstances -- evidence being destroyed, safety of someone - Plain sight Criminal Procedure: Seizure/Arrest - Probable cause: required that more likely than not a crime was committed, and the person being arrested did it - Seizure/arrest: under totality of circumstances person does not feel free to leave (factors: show of authority, handcuffs, forceful language, physical contact) - Stop and Frisk ("Terry Stops"): requires reasonable suspicion that there is criminal activity afloat; when the officer detains you temporarily; **Terry v. Ohio (1968);** - Reasonable suspicion: between mere speculation and probable cause - Exclusionary rule: if evidence is seized from an illegal search or seizure than its inadmissible in court - "Fruit of the Poisonous tree" doctrine: if the original action is illegal then everything flowing from it is as well. - **Custodial Interrogations: Miranda v. Arizona (1968) - states that if an officer arrests you and begins asking questions, they must say you have a right to remain silent and a right to a lawyer. Don\'t need to tell you unless you are in custody AND they begin asking questions** - Privately retained defense attorney: may do it for cause but certainly because they get paid a lot. More variety in their cases - Public defender/court appointed: don\'t do it for the money, do it because they care. Have more knowledge because they are in that courthouse every day. - Role of prosecutor: in a civil case, both sides are trying to win. In criminal cases, they want justice. If a prosectur has any doubts they must withdraw from the case. Their job in sentencing is to ask for what they think is fair not the most or least jail sentence (defense attorney tries for least). - Exculpatory evidence ("brady material"): if there is information that helps prove the person on the other side is innocent, the prosecutor MUST turn it over even if it hurts their case. You can lose your career if you do not. **Brady v. Maryland (1963)** - 6^th^ amendment: right to a speedy AND public trial. - Unanimous verdict: not addressed in constitution or bill of rights; - Federal court: historically protected through common law interpretation of 6^th^ amendment. MUST have unanimous verdict. - **Ramos v. Louisiana (2020) - decided that in state court as well, unanimous verdict must be present** Criminal Defendant: Pivotal Trial Decisions - Plead Guilty? - Acceptance of responsibility: incentives given if plead guilty - **"Alford Plea" (North Carolina v. Alford 1970) - Man charged with 1^st^ degree murder, facing death penalty. He was offered 2^nd^ degree charge if he pleaded guilty. It was in his best interest even though he was innocent. It is up to the states to decide if allowed.** - Cooperate with the government? - Substantial assistance -- 5k letter written by prosecutor to judge asking for lesser sentence because convicted person helped out alot. Judge will decide: - Significance and usefulness of information - Truthfulness and completeness of information - Injury or risk to defendant - Timeliness - Testify? - Right to remain silent under 5^th^ amendment. Ultimately defendants\' choice on all questions -- not lawyers. **US Sentencing Guidelines (1984): create with the goal of alleviating sentencing disparity.** - Offense gravity score: every crime committed is given a score. The worse the crime the higher the score. Judge may deviate with provided reason. - Criminal history: first time offender v. previous convictions can affect your score. - Determinate: sentence with a specific number of years - Indeterminate: sentence with a minimum and maximum range - Victim impact testimony: most states have laws where the victim (or family) can present a testimony to the judge before the sentence is given to show the impact. - Luzerne County PA "Kids for Cash" Judge Mark Ciavarella -- juvenile court judge receiving kickbacks from sending more kids to facilities when it wasn\'t needed. Went to jail. The kid had a minor drug offense -- once he came out he committed suicide, so his mother gave a victim impact testimony on his behalf. *Chapter 14: Criminal Appellate Process* - Constitutional right to counsel on first appeals only. - Appellee: party that won, now defending (next level -- respondent) - Appellant: party appealing (next level -- petitioner) - Appellate court: not a do over trial they look over the trial and determine if any errors were made. They do not hear cases - Trial de novo: when you do get another trial -- only takes place if your OG trial was at a minor court - Double Jeopardy Clause (5^th^ amendment): Only defendant may appeal, the government cannot (even if a bunch of screw ups happen) - Interlocutory appeal: when a party (government allowed) appeals an issue dieing the middle of trial. - Harmless error: Error not big enough to cause a re-trial (ex. Judge corrects it). Appellate courts know mistakes can happen. - Reversible error: error that appellate courts decide could have changed the outcome of the trial if it didn\'t occur - Percentage of successful appeals is \