Exam 1 Flashcards
Rule of law
- Idea that laws apply to everyone in society in the same way. The law also applies to the lawmakers. People in power are subject to the same rules as regular citizens. And citizens are subject to the same rules and afforded the same rights.
- This is the ideal we work toward in a democratic society. There are obstacles – e.g. special interest groups, not always the case that people are treated equally before the law (and certainly has not been so historically).
- “Rule of law” is a cornerstone of economic health for free trade. If the justice system is not fair and transparent, can’t hold people to their word (contracts), can’t prevent bad or abusive behavior (crim/torts), and can’t protect property interests from confiscation by other people or by government (property).
Formalism
An act is either right or wrong, always and in every situation. Ethical systems based on an absolute morality.
*focuses on individual rights
Consequentialism
An act is right or wrong not based on the act itself, but on the consequences of it for everyone involved
*focuses on the common good
Relationship between law and ethics
Society’s values often drive legislation; legislation can drive society’s values.
- Values drive legislation: Price-gouging after Katrina
- Legislation drives values: When civil rights act was passed in 1964, there were lots of people who were (to say the least) not concerned about sex discrimination in employment. Opponents of the Civil Rights Act inserted the prohibition against sex discrimination in employment as a way of trying to get votes AGAINST the bill. It passed anyway, and over the years, society has come around to the view (mostly) that women should not be discriminated against in employment
Common law system / civil (code) law system
- Common law: Emphasizes the role of judges and prior cases
- – The United Kingdom, the United States, Canada, Jamaica, India, Nigeria, New Zealand, and a few other countries follow common law
- Civil (code) law: Relies more heavily on legislation (codes)
- — World’s nations not colonized by England generally observe civil law legal systems
Public law / private law
Public law: relationship of people (or businesses) to society/government
- Constitutional law: interpretation and application of federal or state constitutions
- Criminal law: specifies various offenses against the proper order of the state
- Administrative law: covers legal principles that apply to government agencies, bureaus, and commissions
- ** A government official represents the society and is responsible for seeking justice to achieve the ends of society in issues
Private law: relationships among people (or businesses)
- Property law: recognition of exclusive right in tangible and intangible resources
- Contract law: rules of how owners transfer resources by exchanging them
- Tort law: rules for compensation when an owner’s legal boundaries are wrongfully crossed by another
Civil case / criminal case
Civil cases: between people (including businesses)
- Breach of contract or tort cases
- If you lose…pay damages to the other party
- – Maybe even “punitive damages” if it is a tort case
- – Occasionally some other kind of relief (order to do/not do something)
Criminal cases: between government and person (or business)
- Government proves person/business committed wrong against society
- If you lose…punishment (jail or fine paid to government)
- you can have both at the same time
Constitution (state and federal)
- Structure of the government
Separation of powers (e.g. Congress enacts; President/executive branch implements; Judicial branch interprets)
— Federalism: Federal government has powers in certain areas; states have powers in others - Limits on the government’s power
- Structure of the government
— US Constitution has articles related to the Executive, Legislative, and Judicial branches of the government)
Establishes federalism – federal government has power in some areas; states in others - Limit the government’s power
— Bill of Rights – limits on the kinds of laws that can be enacted
Treaties
made by the president with foreign governments and approved by 2/3 of the Senate become the “supreme law of the land” per the Constitution
Statute (state and federal)
Laws passed by legislatures
Local ordinances
enactments by counties and municipalities – e.g. zoning. Generally to “promote the safety and general welfare” of the community
Substantive law
The laws about how we interact with each other and the government.
- Substantive rules of law define rights and duties
Procedural law
Laws about how the cases proceed through courts or about how laws are made
- Procedural rules of law provide the machinery for enforcing those rights and duties
Sources of Law
Constitutions Statutes Common law Regulatory law Treaties Local ordinances Executive Orders
Common law (stare decisis)
“Let the decision stand.” Courts are generally bound to follow their own precedents and the precedents of the highest court in their jurisdiction.
Conflicts among sources of law and how those are resolved
- Federal law defeats state law
- Constitution defeats statute or common law
- Statute defeats administrative regulation
- Statute defeats common law…
…but the courts (common law) then interpret the statute and determine whether it violates the Constitution.
Sources of Law
Constitutions Statutes Common law Regulatory law Treaties Local ordinances Executive Orders
common law (def)
Cases decided by courts (i.e. judges and justices) on the basis of precedent
Negotiation
a settlement agreement.
- Can use lawyers, or not.
- Informal process.
Meditation (difference between mediation and arbitration)
non-binding use of a neutral to try to facilitate a settlement agreement
- More likely to involve lawyers, but not always
- Sometimes required as part of court process
- Mediators use different techniques (caucus, mediator proposal, facilitative, evaluative)
- Focus groups or mock juries are another (fairly rare) strategy
Arbitration
binding non-court resolution (aka “rent a judge”).
- Parties pay a neutral third person(s)—the arbitrator(s)—to DECIDE the dispute for them.
Arbitrator
neutral third person(s) to DECIDE the dispute for them.
Federal arbitration act
agreements to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”
Procedures (how arbitration is different from litigation and mediation)
- Arbitration procedure is often less formal than court (though usually more formal than mediation).
- Parties typically present their positions/arguments/evidence in papers they submit to the arbitrator.
- Rules of evidence may or may not apply.
- Arbitrator may have more expertise in the industry.
- Arbitration is very often confidential (depending on the contract).
- The arbitration process itself is often, though not always, cheaper than litigation.
- At the end of the process, the arbitrator issues an award that resolves the case. Sometimes the award includes findings of facts and reasons; sometimes not
Award
fads
Limits on courts power (standing to sue)
- Can only decide a “genuine case or controversy” – cannot issue an “advisory opinion” when there is no live dispute.
- Plaintiff has to have a real stake in the outcome of the case (“standing to sue”)
Limits on courts power (genuine case or controversy)
Can only decide a “genuine case or controversy”
Limits on courts power (advisory opinion)
cannot issue an “advisory opinion” when there is no live dispute
jurisdiction
A court’s power to hear and decide the case.
Court will review arbitration when:
- When the arbitration is required by statute (rather than agreed to by contract)
- When the plaintiff can prove the award was “procured by corruption, fraud, or other undue means” or the arbitrator is guilty of misconduct
- ** AKA: Almost never
Forms of dispute resolution
- Negotiate a settlement agreement.
- Mediate: non-binding use of a neutral to try to facilitate a settlement agreement (if you do decide sign a settlement agreement, that is an enforceable contract)
- Arbitrate: submit the dispute to a neutral third-party outside the judicial system (the arbitrator) for a binding decision (called an “award”) to resolve the dispute.
- Forget it?? (Just walk away from the dispute?)
…not always an option. - Litigate: Go to court to get a decision that is binding (though subject to appeal on legal grounds)
Personal jurisdiction
is it fair to make these parties litigate in this court?
Minimum contact:
- Does the Defendant essentially live there? (“at home” in that state)
- Did the Plaintiff serve the summons for this lawsuit on the Defendant while the Defendant was in this state?
- Did the Defendant do the conduct related to the suit in that state/cause an injury that occurred in that state?
Subject-matter jurisdiction
is the case the kind of case that this court can hear?
- State Courts: BROAD subject-matter jurisdiction (almost every kind of case)
- Federal Courts: LIMITED subject-matter jurisdiction
1. Federal Question OR
2. Diversity of Citizenship + $75,000
minimum contacts
- Defendant is “at home”; or
- Def. is served with a summons while in that state; or
- Defendant’s conduct relevant to the suit occurred in that state:
- – committed the harm (tort) at issue in the suit in that state, or
- – owns the property at issue in the case in that state, or
- – Entered into the contract or business at issue in the case, in that state
Attorney-Client Privilege:
Not required to disclose to the other side your conversations with your attorney.
BUT:
- If you disclose your attorney/client communications to some third party (who is not the lawyer or the client), then the privilege does not apply.
- Facts do not become privileged just because you tell them to your attorney
Complaint
the Plaintiff’s “short and plain” statement of the basic facts and claims that is filed with the court.
Describes:
- Parties
- Basis for jurisdiction
- Claims of Plaintiff against Defendant
- “Prayer for Relief” – what the Plaintiff wants the Court to do
- Jury Demand (maybe)
Motion to dismiss
Even if everything in the complaint is assumed to be true, there is still no grounds for holding the Defendant liable
“So what?”
Answer
- Defendant files in response to Complaint and:
- Responds, paragraph by paragraph, to each allegation in the Plaintiff’s complaint.
- Asserts any Affirmative Defenses
- Asserts any counter-claims (claims against the Plaintiff) or cross claims (claims against other Defendants)
Civil procedure – the basic steps
- Hire a lawyer
- Summons and complaint
- Motion to dismiss (sometimes)
- Answer (and maybe counterclaim ? or cross-claim ? )
- Reply to counterclaim / cross-claim ?
- Disclosures
- Discovery
- Motion for summary judgement (?)
- Trial
- Verdict
- Appeal to Court of Appeals
- Petition for Certiorari to state or federal Supreme Court (discretionary).
What if you don’t answer after service of the summons and complaint?
Default Judgment will be entered against you.
– (you lose)
What if you don’t answer after service of the summons and complaint?
Default Judgment will be entered against you.
– (you lose)
Reply:
If there are counter-claims, cross-claims, or third-party claims, those parties will then need to “reply” to those claims
Disclosures
Most systems require that parties make disclosures without waiting for the other party to make requests
Must tell the other party about:
- People who know facts about the case
- Documents (or kinds of documents) relevant to the case
- Insurance policies that apply
Disclosures
Most systems require that parties make disclosures without waiting for the other party to make requests
Must tell the other party about:
- People who know facts about the case
- Documents (or kinds of documents) relevant to the case
- Insurance policies that apply
Legal Hold
should be entered in most cases before litigation even commences. Instructs everyone in the organization not to destroy evidence
Key cost-saving
work with counsel to gather and organize these documents
Discovery:
Either party can require production of any documents, witnesses, materials, examinations, etc. that could lead to the discovery of admissible evidence
Discovery: 5 main types
- Interrogatories – written questions that the other side has to answer
- Requests for Admission – key facts the other side must either admit or deny
- Requests for Production of Documents
- Requests for inspection of property or for mental or physical exam
- Depositions
Depositions
- Under oath
- Usually not in a courtroom
- Attorneys ask questions
- Used to discover the facts and to set up later examinations.
What should you do if you are the deponent?
- Tell the TRUTH!
- Answer only the question that is asked.
- Remember that EVERY WORD is being written down and maybe videotaped. Polite and pleasant…
- Breathe, think, speak.
- It is not a conversation.
