Blaw

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Author:
lisrosey
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108290
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Blaw
Updated:
2011-10-17 17:46:35
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Blaw
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Blaw Test 1
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  1. What is law
    Basic Rules to keep order in society but capable of being inforeced by the government
  2. Where does law come from (Sources of contempoary law)?
    • 1) Constitution
    • 2) Statutes
    • 3) Common law
    • 4) Administrative
  3. Common Law
    Judge-made law, that is, the body of all decisions made by appellate courts over the years.
  4. Procedural law
    The rules establishing how the legal system itself is to operate in a particular kind of case.
  5. Substantive Law
    Rules that establish the rights of parties. For example, the prohibition against slander is substantive law, as opposed to procedural law.
  6. 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
  7. Criminal vs Civil- Who?
    • Criminal: Government Prosecutes (no plaintiff)
    • Civil: Plaintiff or anyone ( you initiate it)
  8. Criminal vs Civil-Purpose?
    • Criminal: to protect society
    • Civil: redress wrongs, to solve problems
  9. Criminal vs Civil- Defendent consequence
    • Criminal: Guilty- Jail or fine
    • Civil: Liable-Pays money
  10. Criminal vs Civil- Burden of Proof?
    • Criminal: Prove beyond a reasonable doubt
    • Civil: Prove by preponderance of evidence (>50%)
  11. Stare Decisis
    • "Let the decision stand"
    • Once a court has decided a particular issue it will generally apply the same rule in future cases.
  12. Precedent
    • An earlier case that decided the issue.
    • May be binding or persuasive
  13. Persuasive Authority
    president that yo don't techiniacally ahve to fallow
  14. 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)
  15. Alternative dispute resolution
    Any method of resolving a legal conflict other than litigation, such as: negotiation, arbitration, mediation, mini-trials, and summary jury trials.
  16. State Courts
    • 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)
  17. General Jurisdiction
    Hears a broad range of cases
  18. Limited Jurisdiction
    Only hears certain types of cases
  19. Federal Courts
    • 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
  20. 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
  21. Jurisdiction
    • Two meanings:
    • 1) Legal system- MN is diff jurisdictan than WI meaning own rules
    • 2) Power to decided a case- Court must have jurisdiction over case
  22. What 2 things are neede dto validly decide a case?
    Subject matter Jurisdiction and Personal jurisdiction
  23. Subject Matter Jurisdiction
    • Two parts:
    • 1) Federal suject matter jurisdiction
    • 2) State Subject matter jurisdiction
  24. Federal subject matter Jurisdiction
    • Either:
    • -Exclusive (patent) or
    • -concurrent (more common)- choice in state or federal
    • AND either:
    • -Federal question jurisdiction or
    • -Diversty jurisdiction
  25. Federal Question
    Claim based on the US constitution, federal statue or federal treaty
  26. Diversity jurisdiction
    • Requires a claim for more than $75000 and diverstiy of citizenship.
    • No one plaintiff can come from the same stae as any defendent
  27. State Subject matter Jurisdiction
    Process serving: a person giveing the person the thing to be served
  28. Personal Jurisdiction
    • Plaintiff: accomplish via complaint
    • Defendant: obtained by either:
    • 1) service of process within forum state or
    • 2) long arm jurisdiction
  29. 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
  30. Stages of Civil Lawsuit
    • 1) Pleading stage
    • 2) Discovery/ Pretrail stage
    • 3) Trial Stage
    • 4) Appeals
    • 5) Enforcement
  31. 1) Pleading stage
    • 1) Complaint
    • 2) Default
    • 3) Defandeant's challenge
    • 4) Answer
    • 5) Motion for summary judgment
  32. Complaint
    • Documents filed to begin a lawsuit
    • 1) Complaint: What happend and prayer which states what you want if you win
    • 2) Summons: paper ordering defendent to answer to complaint within 20 days
    • 3) Service of process: If yes then jurisdiction
  33. Default Judgment
    If Defendent fails to answer in time or show up
  34. Summary Judgement
    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.
  35. Defendant's Challenge
    • Look for a way to get rid of it on procedural grounds
    • 1) Jurisdiction
    • 2) Stature of limitations: Timelimit that plaintiff must file in
    • 3) Motion to dismiss for failure to state a claim
  36. 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
  37. Question of Fact
    • What happened?
    • Eveidence is how they decide (trial)
  38. Qustion of Law
    • Definition
    • Based on law and decided by judge
  39. Motion for summary Judgment
    If there are no questions of fact or law then no trial needed
  40. 2) Discover/ Prtrial stage
    • 1) Tools
    • 2) Pretrial hearing
  41. Tools of Discovery
    • Interrogatories
    • Depostions
    • Subpoenas
  42. Interrogatores
    • List of questions written up to help you.
    • For parties not witness
    • NEVER used for evidence
  43. Depositions
    • Sworn statment taken from witness under oath
    • Will be used in trial
    • Keeps story straight and can help refresh memory
  44. Subpeonas
    • Court orders
    • Check if some business records has history of things happening before
  45. Pretrial Hearing
    • Between parties, lawyers and judge
    • Try to persuade settlement
  46. 3) Trial Stage
    • Select Jury (Voir Dire)
    • Preliminary instructions
    • Opening statments
    • Plaintiff's Evidence
    • Defendants motion for directed verdict
    • Defendant's evidence
    • Directed verdic motions
    • Closing arguments
    • Judge's instructions
    • Jury Deliberates
    • Verdict
    • Motion for judgment
  47. Voir Dire
    • Chellenges for cause: attory give legit reason why should not be jurer
    • Peremptory challenges: # of times where can just say they want the jurer off, no reason.
  48. Directed Virdict
    • 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.
  49. Motion for Judgment
    • JNOV: 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
  50. 4) Appeals
    • Affirm: let decision stand
    • Reverse: turn loser into winner
    • Reverse and Remand: return to lower court for new trial
  51. 5) Enforcement (if not payin)
    • Attachment and execution: court order against their property. Possibly auctioned off
    • Garnishment: have employer deduct fcrom paycheck
    • Lien: goes against something so can't do anything with property until satisfy lien.
  52. Common Law
    • Judge-made law
    • It is both predictable and flexible
    • Stare Decisis
    • Bystander cases
  53. Bystander cases
    You have no duty to assisst someone in peril unless you created the danger
  54. Statutory Law
    • New law
    • We the people have control over this
  55. Bills
    • 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)
  56. Judicial Review
    The power of the judicial system to examine, interpret, and even nullify actions taken by another branch of government.
  57. Administrative law
    These agencies that congress creates federal administrative agencies with enabling legislation. The administrativve procedure act contols how agencies do their work.
  58. Commerce clause
    Congress may regulate any activity that has a substantial effect on interstate commerce
  59. Bill of Rights
    • Freedom of speech, press, asembly and religion
    • 1st 10 amendments to constitution
  60. 1st Amendment
    • Free Speech/expressioins
    • We expect our government to let people speak and hear whateer they choose.
  61. Time Place and Manner
    • Govt may regulate time place and manner.
    • Ex: take place during day light, apply for permit to use place to protest
  62. 5th Amendment
    • 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
  63. Proceduaral due process
    Ensure that before the government takes liberty of property, the affected person has a fair chance to oppose the action.
  64. Substantive due process
    Holds that certain rights, such as privacy, are so fundamental that the government may not eliminate them.
  65. Takings Clause
    Prohibits a strate from taking private property for public use without just compensation.
  66. Eminent Domain
    The power of the govt to take private property for public use.
  67. 14th Amendment
    • 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.
  68. Battery
    • 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
  69. Consent
    • Express: says or writes that you can touch them
    • Implied: reasonable person would understand consent given
    • Context: Implied through behavior like football
  70. Intentional
    • Means voluntarily.
    • If you intend for any toyp of contact
  71. Plaintiff's body
    • Person's body and anything attatced dirctly to their body
    • ex. hat, earings
  72. Assult
    • 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
  73. False Imprisonment
    • Intentional confinement of another without legal justification
    • Confinment: taking away plaintiff's free wil to move
    • Threats are also method
    • Legal Justification: shopkeepers priveldge law
  74. Shopkeepers priveldge law
    Protect merchants stores to protest if they think someone is shoplifting and it they contain reasonable everything.
  75. 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
  76. Defamation
    • Publication of a false statment which would hurt plaintiff;s reputation, causeing damage.
    • Lible: written
    • Slander: orally spoken
    • Must be false to be defamatory, and hurt someone's reputation.
  77. 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
  78. Trespass to real property
    • Intentiaolly and without consent or legal justification entering on to plaintiff's real property.
    • Defenses: Private- to sve someone or self. Public-to prevent harm to public like fire truck
  79. Tresspass to personal property
    • Interfering with plaintiff's rights of possession of her property
    • This is stuffl like computer
  80. Conversions
    Interference with plainff's personal property rights to the point where they are useless.
  81. Defenses to Intentional Torts
    • Consent
    • Privilege
  82. Privilege
    • Self-defense
    • Defense of others
    • Defense of property
  83. Negligence
    • 1) Duty of care/breach of duty
    • 2) Actual Cause
    • 3) Proximate caues
    • 4) Damages
  84. Duty of care
    • a) reasonable person standard (reasonable duty of care)
    • b) Possessors of Land- Tresspassser (low) Licensees (medium) invitees (high)
  85. Actual cause
    Plaintiff has to show...if not for defendants actions, would plainfiff been injured? YES
  86. Proximate cause
    Reasonably forseable that defentens neglgent act could injure someone in the shoes of the plaintiff
  87. Damages
    Show some type of harm happened to them
  88. Defenses to Negligence
    Contributory: Plaintiff's neglagent as well and added to the actions (older tradition)
  89. Comparative
    Determin total amount plaintiff's damages thena ssign a level of ault for both parties
  90. Assumption of Risk
    • Plaintiff was aware of situation of rist that was created so they saw what could happen and could have avoided it
    • Subjective standard: not about if reasonalbe person but fo this person aware of risk
  91. Strict Liability
    • 1) Wild animals
    • 2) Ultrahazrdous/abnormally dangerous activites
    • 3) Products liabiltiy
  92. Wild Animals
    • If animal is originally found in wild
    • Everydog gets one free bite
  93. Ultrahazardous Activities
    • 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
  94. Products Liability
    • 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
  95. Uncontemplated defect
    Somthing not supose to be there like mouse
  96. Design defect
    They inteneded it to be that way but how design was is defective and dangerous

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