Card Set Information
Blaw Test 1
What is law
Basic Rules to keep order in society but capable of being inforeced by the government
Where does law come from (Sources of contempoary law)?
3) Common law
Judge-made law, that is, the body of all decisions made by appellate courts over the years.
The rules establishing how the legal system itself is to operate in a particular kind of case.
Rules that establish the rights of parties. For example, the prohibition against slander is substantive law, as opposed to procedural law.
4 Characteristics of Good law
1) Stable- Know what to fallow
2) Flexible- Possible change
3) Certian- Written in clear terms
4) Reasonable- Make sense
Criminal vs Civil- Who?
: Government Prosecutes (no plaintiff)
: Plaintiff or anyone ( you initiate it)
Criminal vs Civil-Purpose?
: to protect society
: redress wrongs, to solve problems
Criminal vs Civil- Defendent consequence
: Guilty- Jail or fine
: Liable-Pays money
Criminal vs Civil- Burden of Proof?
: Prove beyond a reasonable doubt
: Prove by preponderance of evidence (>50%)
"Let the decision stand"
Once a court has decided a particular issue it will generally apply the same rule in future cases.
An earlier case that decided the issue.
May be binding or persuasive
president that yo don't techiniacally ahve to fallow
How courts avoid Precedents?
1) Ignore the precedent case
2) Distinguish on the facts
3) Distinguish on the law
4) Reverse ( if it was just bad law)
Alternative dispute resolution
Any method of resolving a legal conflict other than litigation, such as: negotiation, arbitration, mediation, mini-trials, and summary jury trials.
1) State High (Supreme)
: Highest court in state
2) Court of Appeals
: look at what happened (no jury)
3) Trial Courts
: Start here and determine facts. (general and limited jurisdiction)
Hears a broad range of cases
Only hears certain types of cases
1) US Supreme Court
: Highest court in country. Takes appeals from State Supreme court. Need a
Writ of certiorari
2) US Circuit court of Appeals: Each circuit has appleas court- 11 circuits
3) US District courts and Limited jusrisdiction Federal courts
: most federal and criminal start here
Writ of certiorari
Petition asking supreme to hear the case.
Passed to 9 judges and 4 must agreet to hear it.
Then are approved for a writ of Certioriari
1) Legal system- MN is diff jurisdictan than WI meaning own rules
2) Power to decided a case- Court must have jurisdiction over case
What 2 things are neede dto validly decide a case?
Subject matter Jurisdiction and Personal jurisdiction
Subject Matter Jurisdiction
1) Federal suject matter jurisdiction
2) State Subject matter jurisdiction
Federal subject matter Jurisdiction
concurrent (more common)- choice in state or federal
-Federal question jurisdiction
Claim based on the US constitution, federal statue or federal treaty
Requires a claim for more than $75000 and diverstiy of citizenship.
No one plaintiff can come from the same stae as any defendent
State Subject matter Jurisdiction
Process serving: a person giveing the person the thing to be served
: accomplish via complaint
: obtained by either:
1) service of process within forum state
2) long arm jurisdiction
Long arm juriscdiction
May serve defendant outside forum but he must have minimum contacts with the forum state
Miniminum contacts are:
1)Realeste in forum
2) Does business in forum
3) Caused injury in forum
Stages of Civil Lawsuit
1) Pleading stage
2) Discovery/ Pretrail stage
3) Trial Stage
1) Pleading stage
3) Defandeant's challenge
5) Motion for summary judgment
Documents filed to begin a lawsuit
: What happend and prayer which states what you want if you win
: paper ordering defendent to answer to complaint within 20 days
3) Service of process
: If yes then jurisdiction
If Defendent fails to answer in time or show up
The power of a trial court to terminate a lawsuit before a trial has begun, on the grounds that no essential facts are in dispute.
Look for a way to get rid of it on procedural grounds
2) Stature of limitations
: Timelimit that plaintiff must file in
3) Motion to dismiss for failure to state a claim
4 Things a compliant needs to be leaglly sufficient
1) Plaintiff had legal right
2) Defendant had leagal duty
3) Defendant breached duty
4) Breach caused damages
Question of Fact
Eveidence is how they decide (trial)
Qustion of Law
Based on law and decided by judge
Motion for summary Judgment
If there are no questions of fact or law then no trial needed
2) Discover/ Prtrial stage
2) Pretrial hearing
Tools of Discovery
List of questions written up to help you.
For parties not witness
NEVER used for evidence
Sworn statment taken from witness under oath
Will be used in trial
Keeps story straight and can help refresh memory
Check if some business records has history of things happening before
Between parties, lawyers and judge
Try to persuade settlement
3) Trial Stage
Select Jury (Voir Dire)
Defendants motion for directed verdict
Directed verdic motions
Motion for judgment
Chellenges for cause
: attory give legit reason why should not be jurer
: # of times where can just say they want the jurer off, no reason.
A ruiling that the plaintiff has entirely failed to prove some aspect of their case.
Permissible only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it.
Motion for Judgment
: judment not withstanding the veredicto
If no reasonably jury could have reached this clearly erroneous decison, motion may be granted and judge will sustitue verdict
: let decision stand
: turn loser into winner
Reverse and Remand
: return to lower court for new trial
5) Enforcement (if not payin)
Attachment and execution
: court order against their property. Possibly auctioned off
: have employer deduct fcrom paycheck
: goes against something so can't do anything with property until satisfy lien.
It is both predictable and flexible
You have no duty to assisst someone in peril unless you created the danger
We the people have control over this
A proposed stature, submitted to congress or a state legislature
Must be approved by bot house of the resps and senate (two houses of congress)
The power of the judicial system to examine, interpret, and even nullify actions taken by another branch of government.
These agencies that congress creates federal administrative agencies with enabling legislation. The administrativve procedure act contols how agencies do their work.
Congress may regulate any activity that has a substantial effect on interstate commerce
Bill of Rights
Freedom of speech, press, asembly and religion
1st 10 amendments to constitution
We expect our government to let people speak and hear whateer they choose.
Time Place and Manner
Govt may regulate time place and manner.
: take place during day light, apply for permit to use place to protest
Due Process and aTakings clause
No person shall be depreived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compnsations
Proceduaral due process
Ensure that before the government takes liberty of property, the affected person has a fair chance to oppose the action.
Substantive due process
Holds that certain rights, such as privacy, are so fundamental that the government may not eliminate them.
Prohibits a strate from taking private property for public use without just compensation.
The power of the govt to take private property for public use.
Equal protections clause
: government must treat people equally.
No state shall deny to any person within it's jurisdictiont he equal protection of the laws.
Intential aharmful or offensive touching of plaintiff's person without legal justification
Can be direct of indirect
Must not have legal justification so can't have consent
: says or writes that you can touch them
: reasonable person would understand consent given
: Implied through behavior like football
If you intend for any toyp of contact
Person's body and anything attatced dirctly to their body
ex. hat, earings
Intentional act which puts plaintiff in reasonable apprehension of an immediate battery
Plaintiff must be aware that they are going to be battered
Apprehensioon means expectation
Action must be expected to happen imediatly, not later
Intentional confinement of another without legal justification
: taking away plaintiff's free wil to move
Threats are also method
: shopkeepers priveldge law
Shopkeepers priveldge law
Protect merchants stores to protest if they think someone is shoplifting and it they contain reasonable everything.
Intentional Infliction of Emotional Distress
Intentional outrageious conduct of defendant which causes plaintiff severe emotional distress
Intentional also means motif.
They are trying to make Plaintiff miserable or act with recless regard
Suffer to point where can't carry on regular functions
Publication of a false statment which would hurt plaintiff;s reputation, causeing damage.
: orally spoken
Must be false to be defamatory, and hurt someone's reputation.
Invasion of privacy
a) Classic- have right to be left alone, intrusion of plaintiff's affairs
b) appropriation of plaintiff's namre of lieness without permission for defendent;s commmercial purposes. Using name or picture without concent
c) False light- makes you seem to be something your not
d) publictaion of private facts- factst that do not need to be known by public. personal things
Trespass to real property
Intentiaolly and without consent or legal justification entering on to plaintiff's real property.
: Private- to sve someone or self. Public-to prevent harm to public like fire truck
Tresspass to personal property
Interfering with plaintiff's rights of possession of her property
This is stuffl like computer
Interference with plainff's personal property rights to the point where they are useless.
Defenses to Intentional Torts
Defense of others
Defense of property
1) Duty of care/breach of duty
2) Actual Cause
3) Proximate caues
Duty of care
a) reasonable person standard (reasonable duty of care)
b) Possessors of Land- Tresspassser (low) Licensees (medium) invitees (high)
Plaintiff has to show...if not for defendants actions, would plainfiff been injured? YES
Reasonably forseable that defentens neglgent act could injure someone in the shoes of the plaintiff
Show some type of harm happened to them
Defenses to Negligence
Contributory: Plaintiff's neglagent as well and added to the actions (older tradition)
Determin total amount plaintiff's damages thena ssign a level of ault for both parties
Assumption of Risk
Plaintiff was aware of situation of rist that was created so they saw what could happen and could have avoided it
: not about if reasonalbe person but fo this person aware of risk
1) Wild animals
2) Ultrahazrdous/abnormally dangerous activites
3) Products liabiltiy
If animal is originally found in wild
Everydog gets one free bite
Activity involves risk of serious harm to people or property and
Cannot be perfomred sith complete safety regarless of how careful on is and it is not commonly performed in the community
Can't be safe no matter what
One who sells a defective product which is unreasonably dangerous to a consumer of his property is liable if-
a) the seller is in the businees of selling the product and
b) the product reaches teh consumer without substantial change in it's condition
Somthing not supose to be there like mouse
They inteneded it to be that way but how design was is defective and dangerous