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What is law?
Enforceable rules governing relationships among individuals and between individuals and their society.
4 characteristics of good law
- 1. Stable- not constantly changing
- -EX-speed changes on the freeway too often.
- 2. Flexible- have to change with the time
- -EX-Brown vs. The Board of Education
- 3. Reasonable- has to be thought right by many
- EX- Prohibition
- 4. Certain- has to be stated in terms that you understand
- -EX- Don’t be a scumbag. (vague)
Four differences between Civil and Criminal
- 1. Who initiates?
- 2. Purpose
- 3. If defendant loses
- 4. Burden of proof
- concerned with wrongs committed against the public as a whole. Defined as prohibited by local, state and federal statues.
- 1. Government initiates it.
- 2. Protect all of society/ purpose
- 3. Incarceration/ defendant loses.
- 4. Beyond a reasonable doubt/ burden of proof.
- spells out the rights and duties that exist between persons and their government, and when persons rights are violated. Private party sues another private party.
- 1. Wronged party/ initiates.
- 2.Provide redress to the party/ purpose
- 3. Pay money/ defendant loses
- 4. Preponderance of evidence (more
- than 50%)
Law developed from custom or judicial decisions in English and US Courts.
Law enacted by legislative bodies (as opposed to constitutional law, admin law or case law)
The right of mortgagor who has breached the mortgage agreement to redeem or purchase the propery prior to foreclosure proceedings.
"Let the decision stand," A prior ruling involving the same type of case will determine the outcome in a current case, unless there are compelling reasons to the contrary.
How do courts avoid pprecedents?
- a) ignore the precedent case
- b) distinguish on the facts
- c) distinguish on the law
- d) reverse (when possible)
- Pyramid—Bottom to Top
- 1. District- starting point of most federal matters.
- 2. Circuit Courts of Appeal- Hear appeals from district courts
- 3. U.S. Supreme Court obtaining a writ of certiorar- Why its important for the country. Need 4/9 of votes to have them hear the case.
- 4. Specialty courts- Small claims court, juvenile and family court.
- Pyramid—Bottom to top
- Courts of limited jurisdiction
- Trial court of general jur.
- Intermediate court of Appeal
- State Supreme Court
- US Supreme Court
- - Write of certain- If you want to go to the supreme
- court you must petition. Tell them why your case is so important. Odds are against you. 4/9 must agree to see it.
Subject Matter Jurisdiction
- For a court to decide a case they have to have the right.
- EX- want to divorce but only divorce court can do this.
Question that pertains to the US Constitution acts or treaties. A federal question provides a basis for federal jurisdiction.
- -requires a claim for more than $75,000 and diversity of citizenship: no one plaintiff can come from the same state as any defendant.
- -court applies the law of the state where the transaction which is the basis for the lawsuit occurred.
bankruptcy- have to go to federal court not state.
(more common)- could go to federal or state.
- -Plaintiff: accomplish via complaint
- -Defendant: obtained by either (1)service of process within the forum state, OR
- may serve defendant outside forum, but he must have “minimum contacts with the forum state.- Service of process- papers to defendant
- - Happened in WI filed in AL
- - cant because the defendant is not there.
- - Happened in WI but defendant moved you must have minimum contacts.
- 1.Owning real estate.
- 2. Doing business in forum state- state they are suing in.
- 3.Causing an injury in forum state.
Writ of Certiorari
A writ from a higher court asking the lower court for the record of a case.
The district in which an action is tried and from which the jury is selected.
Stages of Civil Lawsuit
- Pleading Stage
- Discovery/Pretrial Stage
- Trial Stage
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation.
The process in which the attorneys question prospective jurors to determine whether they are biased or have any connections with the party.
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
Statue of Limitations
- A set time period to respond.
- Motion to dismiss for failure to state a claim
- - To be legally sufficient, complaint must state a cause of action: facts alleged in your complaint
Testimony of a party to a lawsuit or witness taked under oath before a trial.
A series of written quesions for which written answers are prepared and then signed under oath by the party to the lawsuit.
Motion Summary Judgement
Motion requesting the court t enter a judgment without proceeding to trial.
Motion for Direct Verdict
Party's request that the judge enter a judgment in her our his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim.
Motion for judgment n.o.v
Motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.
The provision in Article 1, Section 8 of the US constitution that give congress the power to regulate interstate commerce.
Provisions of the 5th and 14th amendments that guarantee that no person shall be deprived of life, libery, or property without due process of law.
- Intentional harmful or offensive touching of another persons without legal justification.
- Something attached to them.
- Reasonable person must find it true.
- Intentional act which puts plaintiff in reasonable apprehension of an immediate battery.
- Ex- trying to shoot someone and missing.
- Intentional confinement of another without legal justification.
- Dose not have to be physical- "stay in your room or i will kill you"
- Lost freedom of movement.
- They must know they are imprisoned.
Intentional Infliction of Emotional Distress
- Intentional outrageous conduct of defendant which causes plaintiff severe emotional distress.
- Ex- cop shooting child to prove point.
- Very hard to prove.
- Publication of a false statement which would hurt plaintiffs reputation, causing damage.
- Statement must be false.
- Someone must see or hear it.
- If its true no case.
Classic/Intrusion of Plaintiffs affairs.
Jackie O- a man would follow her around everywhere and get too close and personal. Yes it was in public but it went too far.
Appropriation of Plaintiffs Name or likeness
- Defendant has done something to make it seem like the paintiff is doing soething they are not.
- Head on porn body.
Publication of Private Facts
Telling someone in the newspaper about your bad grades.
Trespass to Real Property
- Public necessity- not liable- yes you came onto property but it was to avoid harm of public.
- Private necessity- come on to save themselves. Still must pay for damages.
Trespass to Personal Property
- Interfering with plaintiffs rights of possession of her property.
- Ex- pick up back pack
- Interference with plaintiffs personal property rights to the point where they are useless.
- Ex- throwing back pack and it being sliced into tons of pieces.
- Permission to some extent to touch you.
- Contact sports
Duty of care
- Reasonable person standards
- -Exceptions: kids, physically handicap and professionals.
- But For.... would plaintiff been hurt?
- yes- no AC
- Is it reasonably forseeable that the .... conduct would injur a person in the plaintiffs shoes.
- No- No PC
- Complete defense- neither car stopped at stop sign.
- They both were at wrong and the defendant will win.
- Plaintiff 20% fault.
- Defendant 80% fault
- So 20 of 100,000 would be taken out and the rest to plaintiff.
- Reduces liability but doesnt eliminate it.
Assumption of the Risk
Even though defendant has negligence, if before harm happened the plaintiff knew it would happen then the defendant is not liable.