This Study Guide for the Midterm was made by a student in Fall 2015, who graciously offered to share it with anyone interested. I have not checked it for accuracy. It covers chapters 1 through 6 only. Let me know if you have questions or corrections for it! ‐ Mr. Lilly Chapter 1 Terms: Precedent: The obligation to decide current cases based on previous rulings Common Law: Judge‐made law, Originated in England from lawyers such as Henry de Bracton Statute: A Law passed by a legislative body, Most new laws are statues as well as criminal law Court of Chancery: No jury, accomplish “Good Conscience with an Equitable Result” Equity: Court’s power to fashion a remedy such as an injunction Federalism: To have two levels of government with specific powers Statutory law: Second source of law concerning Statutes Stare Decisis: means “let the decision stand” Injunction: Authoritative warning or order Executive Order: The president has this power to execute orders Criminal Law: Prohibits or requires certain behavior Civil Law: Regulates rights and duties between parties Substantive Law: Defines the rights of the parties Procedural Law: Establishes the processes for settling disputes Jurisprudence: The philosophy of law Sovereign: The recognized political power who citizens obey The three schools of jurisprudence or philosophies of law Legal Positivism: Law is what the sovereign says it is Natural Law: “An unjust law is no law at all”, Moral Law Legal Realism: Combination of written rules and biases of human beings or sum of everything Plaintiff: The person who is suing Defendant: The person being sued Facts: Provides background to the lawsuit Court’s Decision (Court Holding): The court’s ruling Reverses: Appellate courts reverse the trial court’s decision Remaded: Send the case to trial court again for a new trial Affirmed: Agree with the trial court’s decision Reasoning: Why the court reached its decision Appellate courts: Create all Common Law Rules, Includes the state courts of appeal or intermediate courts of appeal and state Supreme Court as well as the US Courts of Appeal, and Generally accepts findings of the trial court unless no evidence is shown to support it. Three or more judges hear an appeals case. Divided into 13 circuits and 11 are numbered and two are not DO/ARE NOT: Permitted to hear witness testimonies, only have one judge, have juries, only hear criminal cases, restricted to federal courts *Every society of historical record has a system of laws *Iroquis Native Americans helped in the creation of US government through Federalism *Law is not found in one single book * Federal Constitution= US Constitution and it 1. Establishes US Gov’t with three branches 2. Retention of state power not given to the national government 3. Guarantees many basic rights to the American People * US congress consists of the House of Representatives and the Senate * States regulate and legislate most Family, Criminal and Property law * Most administrative agencies are created by congress of state legislature * The president makes all treaties with foreign nations but has to be ratified by a 2/3 vote from the US Senate * Only a district attorney or prosecutor employed by the district attorney may bring a criminal case to court *Kuehn v. Pub Zone: Plaintiff= Kuehn, Defendant= Pub Zone, Plaintiff lost trial court, appealed, reversed, jury verdict reinstated Chapter 3 Terms: Litigator: Lawyer who handles court cases Litigation: The Process of filing claims in court and ultimately going to trial Alternative Dispute Resolution (ADR): Any formal or informal processes used to settle without going to trial. Negotiation: Personal or with lawyers, majority of disputes are resolved this way Mediation: Fastest growing method of ADR, Consists of a Mediator and try for a win‐win situation 75% of cases reach voluntary settlement Mediator: Does not need a law degree, tries to move parties into agreement, Neutral Third Party Arbitration: Neutral Third Party involved, faster and cheaper than litigation award is imposed Win‐Lose situation Arbitrator: Has a power to impose an award, deliberates Mandatory Arbitration Form: Document prohibiting you from filing suit against the company Hill v. Gateway Plaintiff has to travel to arbitrate a dispute with a manufacturer Trial Courts: All cases start in trial court, Determines facts of a particular dispute and apply the law given by earlier appellate court decisions Jurisdiction: A court’s power to hear a case Trial Courts of Limited Jurisdiction: May only hear certain types of cases involving small claims, probate court or court of dead people Trial Courts of General Jurisdiction: Have a broad range of cases, the most important court is the general civil division Diversity Case: Happens when (1) Plaintiff and defendant are citizens of different states AND (2) Amount in dispute exceeds $75,000. United States District Court: Primary trial court in the federal system divided into 94 districs and has 50 independent systems of courts US Supreme Court: Highest court in the country, 7 justices on the court, 7 in California Writ of certiorari: A Petition asking the Supreme Court to hear a case, 8000 requests every year but fewer than 100 accepted Pleadings: The documents that begin a lawsuit, consisting of a complaint, the answer and sometimes, a reply. Complaint: A short, plain statement of the facts alleged and the legal claims made. Answer: Answer to the complaint, has 20 days to file Default Judgment: A decision where plaintiff wins w/o a trial because defendant failed to answer in time Counter‐Claim: A second lawsuit by the defendant against the plaintiff Reply: An answer to a counter‐claim. Class Action: One plaintiff represents the entire group of plaintiffs including those who are unaware of the lawsuit or unaware they were harmed Motion: A formal request to the court to take some step or issue an order Motion to Dismiss: A request to terminate the case without permitting it to go further Discovery: A pre‐trial opportunity for both parties to learn the strengths and weaknesses of an opponent’s case Interrogatories: Written questions that the opposing party must answer in writing, under oath. Deposition: A chance for one parties’ lawyer to question the other party or a potential witness under oath Deponent: The person being questioned. Motion for a protective order: A request that the court will limit discovery. Motion to compel Answers to interrogatories: A formal request to supply more complete answers. In Camera Inspection: The judge views the requested documents alone and decides whether the other side is entitled to view them Summary Judgment: A ruling by the court that no trial is necessary because of some essential facts is not in dispute. Plaintiff= 1 essential fact not in dispute, Defendant= no essential facts in dispute. An Essential fact being a fact that the plaintiff must prove to win a lawsuit Voir Dire: The process of selecting a jury Challenges for cause: A claim that the juror has demonstrated probable bias, no limitations Peremptory Challenges: A limited right to excuse a juror for any reason Preponderance of the evidence: The plaintiff’s burden of proof in a civil lawsuit. Beyond a reasonable doubt: The government’s burden of proof in a criminal prosecution Direct Examination: When a lawyer asks questions of his/her own witness. Cross‐Examine: When a lawyer asks questions of the opposing witness. Directed Verdict: A ruling that the plaintiff has entirely failed to meet his burden of proof, reasonable minds could not disagree on it. Judgement non obstante Verdicto (JNOV): A judgement not withstanding a jury’s verdict or to ask the judge to overturn the jury’s verdict. Precedent: Earlier decisions by the state appellate courts on similar issues Modify: To affirm the outcome but with changes. Reverse and Remand: To nullify the lower decision and return the case for reconsideration or retrial Harmless Error: A Mistake by the trial judge that was too minor to affect the outcome *Smiles v. Coastal Insurance: Could have been filed in diversity court but filed in State because Plaintiff wants possible home state bias from the judge * Civil procedure sequence: Complaint, Answer, Reply (If there is one), Discovery, Trial and Judgment *Over 90% of lawsuits are settled or dropped before trial begins. * Burden of proof is mostly on the plaintiff and must prove a different number of required elements to win a case. * Expert witnesses are the only witnesses able to answer a question of opinion or speculation Chapter 4 Terms Common Law: Judge‐made law Stare Decisis: “Let the decision stand” Precedent: An earlier case that decided the issue Bystander: You have no obligation to assist someone in peril unless you created the danger Bill: A proposed statute, submitted to Congress or a state legislature Veto: The power of the president to reject legislation passed by Congress Statutory Interpretation: To interpret or to explain precisely what the language means and how it applies to a given case Plain Meaning Rule: When a statute’s words have ordinary, everyday significance, the court will apply it. Congressional Override: Overrides a Veto to repass a bill by a two‐thirds margin Administrative Law: Known as the fourth branch of government Enabling Legislation: Congress creates a federal agency that the congress believes need regulation Legislative Rules: The most important agency rules requiring businesses or private citizens to act in a certain way. Interpretive Rules: Does not change the law, it is an agency’s interpretation of what a law already requires. Informal Rulemaking: ‘Notice and comment” way of rulemaking with a public comment period Formal Rulemaking: Holds a hearing and experts may testify against it where it must prepare a formal, written response to everything that occurred at the hearing. Subpoena: An order to appear at a particular place and time Subpoena duces tecum: Order for a person to produce certain documents or things Search and Seizure: Comprehensively regulated industries are subject to periodic unannounced inspections Adjudicate: To hold a formal hearing a about an issue and then decide it before an ALJ Administrative law Judge: An agency employee who acts as an impartial decision‐maker De novo Decision: The powers of appellate courts or board to ignore a lower judge’s ruling and make its own decision Chapter 4 Cases Union Pacific Railway Co. v. Cappier: Train struck a man severing arm and leg Railroad employees saw but did nothing. Railroad had no duty to help the injured man Carey v. Davis: Carey fainted from sunstroke was left in the sun by Davis leaving Carey with permanent injury: Davis was liable. Started the ‘if’ facts of the bystander argument Osterlind v. Hill: Osterlind rented canoe with hill and it flipped over, Hill got out safely and Osterlind drowned, Hill was not liable Tarasoff v. Reagent of UC: Poddar killed Tarasoff after talking to psychologist. Court made an exeption because of “special relationship” with patient and had a breach of duty to Tarasoff Soldano v. Odaniels: Soldano was threatened at gunpoint, Patron went to Circle in Bar and bartender refused the use of the phone to call the police. Bartender had a duty to soldano Parra v. Tarasco: Parra chocked on food in Tarasco restaurant. Tarasco had no obligation to do anything Griggs v. Duke Power Co: Whites shared a disproportionate share of good jobs because of position requirements Power Co. Lost because employment tests must be job related Wards Cove packing Co. V. Antonio Plaintiffs are workers in salmon canneries in Alaska and the company led to racial imbalances regarding job requirement. Court removed “business necessity” requirement of Griggs and replaced it with “Legitimate employment goals” *Most work in congress is done in committees and subcommittees rather than the floor of the house or senate * “Sex” is the one word amendment offered to title VII of the Civil rights act * Senator Tower was concerned about 702 of title VII which led to section 703 (h) being added to the bill * The three steps a court has to proceed in performing statutory interpretation in order is (1) Plain meaning approach (2) Legislative history and intent and (3) Public Policy * Three kinds of power granted to administrative agencies are Rulemaking, Investigation, and Adjudication. *Three limits on power to issue subpoenas are (1) Must be relevant to a lawful agency investigation (2) Must not be unreasonably burdensome (3) Must not demand privileged information * Exhaustion of remedies means that it must exhaust administrative remedies before venturing into court * When a losing party appeals a case from the appellate board the court will (1) Defer to the agency’s findings of fact as long as there is substantial evidence to support such finding and (2) Defer to the agency’s interpretation of the law as long as it is reasonable. * Freedom of Information Act (FOIA) is designed to give citizens and businesses access to federal agency information about (1) How the agency operates, money, info on a subject, statistics and (2) What they have about the one asking the information or ‘self’ *Privacy Act (1974) prohibits federal agencies from giving information to other agencies without written consent. Chapter 5: The Framers of the Constitution: The Founding Fathers
The Articles of Confederation: Articles that gave the central government no power
Federalists: Urged a strong central government eg: Alexander Hamilton
Antifederalists: Feared a powerful central government : Patrick Henry
The Bill of Rights: The first 10 amendments
The power of the Purse: Most important right in Congress, the authority to raise money
The Commerce Clause: Gives the congress the power to regulate commerce with foreign nations and among
states.
International commerce (Exclusive power) : Only the federal government may regulate international commerce
Domestic commerce (Concurrent power): Both state and congress may regulate it
Positive aspect (of the Commerce Clause) :Brings coordination and fairness within trades and commerce
regulates it.
Negative or dormant aspect (of the Commerce Clause) :The power of the states to regulate interstate
commerce is severely restricted.
Interstate commerce: Trade between different states
The substantial effect rule: Congress may regulate any activity that has a substantial effect on interstate
commerce
The aggregation argument : The contribution to the demand is not enough to remove him/her from the scope
of federalregulation
The Supremacy Clause: Makes the constitution and the federal statutes the supreme law of the land
Preempts: Controls the issue.
The power of judicial review : The power of the federal courts to declare a statute or governmental action
unconstitutional and void.
Judicial activism : The court’s willingness to use the power of judicial review.
Judicial restraint : A court’s willingness to limit its role in enforcing the laws passed by congress
Political speech : Most protected form of speech it is protected unless it is intended and likely to create
imminent lawless action
Time place and manner The government’s ability to regulate the time, place and manner of a speech
Obscenity :Never received constitutional protection, has a three-part test called the Miller test. (1) Prurient
interest (2) Offensive sexual conduct (3) Lacks artistic , scientific value.
Commercial : Speech that has a dominant theme to propose a commercial transaction. Receives a lower level
of protection than political speech
Speech procedural Due process: Before the government takes liberty or property, the affected person has a fair
chance to oppose such action.
The Takings clause : Prohibits a statute from taking private property for public use without just compensation
Neutral fact finder: The government provides this to find facts.
(The power of) eminent domain : The power of the government to take property for public use
Substantive due process : Holds that certain rights are so fundamental that the government may not eliminate
them.
Fundamental rights: Rights so basic that any governmental interference would likely by unconstitutional
Economic and social regulation: They will be upheld if they are rationally related to a legitimate goal(Minimal
scrutiny)
Equal Protection Clause : Generally requires the government to treat people equally
Intermediate scrutiny : (Gender) Such laws must substantially relate to important government objectives.
Strict scrutiny: (Race, Ethnicity and Fundamental Rights.) Will only be upheld if it is necessary to promote a
compelling state interest.
CASES Texas v Johnson: Johnson burned flag in a protest, First amendment protects flag burning Barnes v. Glen Theater : Nude dancers want to file suit Indiana claimed general police powers and the power to protect social order. Salib v. City of Mesa: Salib posted signs on windows more than 30% covering the store. Did not violate first amendment. Ward v. Monroeville. A traffic offense went all the way to the Supreme Court Kelo v City of New London: 9 owners of 15 properties refused to sell and filed suit. Government used takings clause and the plan was constitutional. Chapter 6 Terms Tort: A violation of authority imposed by the civil law Intentional Torts: Harm caused by deliberate action Negligence: Harm caused by neglect and oversight rather than by deliberate conduct Strict Liability: A type of tort lawsuit which does not require the plaintiff to prove the element of fault Libel: Written Defamation Slander: Oral defamation Element: A fact that a plaintiff must prove to win a lawsuit Defamation: False statements that harm someone’s reputation Defamatory Statement: Words likely to harm another person’s reputation Opinion: Generally a valid defense in a defamation suit because it can be proven true or false Public Figure: eg: Movie star, has less protection from defamation, can only win by proving actual malice Public Official: A government employed person and also receives less protection from defamation, actual malice is required Actual Malice: Defendant knew that the statement was false or acted with reckless disregard of the truth Absolute Privilege: A witness testifying in a court or legislature may never be sued for defamation Qualified Privilege: Exists between two people who have a legitimate need to exchange information False imprisonment: The intentional restraint of another person without reasonable cause and without consent Intentional infliction: of emotional distress: Results from extreme and outrageous conduct that causes serious emotional harm Battery: An intentional touching of another person in a way that is unwanted or offensive Assault: When defendant does an act that makes a plaintiff fear an imminent battery Fraud: Injuring another person by deliberate deception Compensatory Damages: Money intended to restore a plaintiff to the position he was in before the injury. Single Recovery Principle: Requires the court to settle once and for all by awarding lump sum for past and future expenses Punitive damages: Intended to punish the defendant for conduct that is extreme and outrageous Tortious interference with a contract: The defendant improperly induced a third party to breach a contract with a plaintiff Intrusion A tort if a reasonable person would find the invasion of her private life offensive: Commercial Exploitation: Prohibits the use of someone’s likeness or voice for commercial purposes Duty of Due Care: If the defendant could have foreseen injury to a particular person, she has a duty to him. Factual Cause: The defendant’s conduct actually caused injury Dram shop laws: Makes stores, bars, etc. liable for serving drinks to intoxicated customers who later cause harm Negligent Hiring: Companies are liable for hiring and retaining violent employees Negligence per se: When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people and a violation of the statute injures a member of that group, the defendant has committed negligence per se. Foreseeable type of harm: For the defendant to be liable, the type of harm must have been reasonably foreseeable Res Ipsa Loquitur: “The thing speaks for itself” (1) The defendant had exclusive control of the thing that caused the harm (2) The plaintiff had no harm in causing the harm Assumption of the risk: A person who voluntarily enters a situation that has an obvious danger cannot complain if he is injured Strict Liability: Activities so dangerous that the law places an especially high burden on anyone who engages them Ultra hazardous activity: A defendant engaging in an ultrahazardous activity is virtually always liable for any harm that results CASES Mashburn V. Collins: Mashburn sued Collins for defamation. Lost because of Opinion Yeagle v. Collegiate Times: Collegiate Times called Yeagle “Director of Butt Licking”. Yeagle sued, lost. Zeran v. America Online: AOL was immune to defamation due to third party posting Ford Motor Credit Co v. Sheehan: Ford guilty of emotional distress due to a credit officer phoned Sheehan’s mother and falsely identified herself as a hospital employee and needed to find Sheehan because her children had been in a car accident. Midas Muffler Shop v Elison Case: Muffler shop called Elison multiple times and was neither extreme nor outrageous and the court ruled not guilty Jane Doe and Nancy Roe v. Lynn Mills case: Protestors got documents about Doe and Roe’s Abortion and trial court gave summary judgment to defendants claiming they had the right to express their views. Case was appealed and then reversed. Texaco v Pennzoil: One of the largest verdicts in American Law history. Pennzoil wanted to buy Getty oil and was approved but Texaco went in and offered a lower offer. Pennzoil sued for tortious interference and Texaco had to pay $7.75 Billion in damages and $3 Billion in Punitive Hernandez v Arizona Board of Regents: Frat party, Rayner gave alcohol to Hernandez and was drunk and drove left him blind and brain damaged. Trial court granted summary judgment to Rayner but was Reversed and remanded. Saying they have a duty to care for Hernandez Weiner V. Southcoast Childcare Centers Inc: Weiner drove through the fence of Childcare Centers and killed 2 children and injured many. Parents sued Southcoast. Granted Summary judgement for Southcoast claiming they had no duty to plaintiffs. Appellate court reversed and Southcoast appealed to the state’s highest panel