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| Schools of Jurisprudential Thought |
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Natural Law view
Positivist view
Historical view
Legal Realism view |
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| inherent in human nature- Higher Power |
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| what’s on the books right now |
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| not concrete, considers everything |
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| Traditional legal rules applied to online transactions |
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| the power of a court to hear a dispute and to “speak to the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. |
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| power to decide issues relating to property, whether the property is real, personal, tangible, or intangible |
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| courts use long-arm statutes for non-resident parties based on “ minimum contacts” with the start |
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| Subject Matter Jurisdiction |
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| limitation on the types of cases a court can hear, usually determined by federal or state statutes. |
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| Courts of original jurisdiction |
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| is where the case started (Trial) |
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| Federal Court Jurisdiction |
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“Federal Question”
“Diversity” |
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| cases in which the rights or obligations of a party are created or defined by some federal law. |
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| The parties are not from the same state, AND the amount in controversy is greater than $75,000. |
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| more than one court can hear the case. |
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| is sufficient “stake” in the controversy; party must have suffered a LEGAL INJURY. |
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| • Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. |
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| appellate courts will consider |
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| questions of LAW, but not questions of FACT |
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| The two most fundamental ways to have your case heard in a supreme court are: |
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o Appeals of Right
o Writ of certiorari |
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| Alternative Dispute Resolution types |
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| negotiation, mediation, arbitration |
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| • Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case |
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| • Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground |
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| Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally- binding decision; usually an expert or well-respected government official. |
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| Privileges and Immunities Clause |
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Definition
• Prevents state from imposing unreasonable burdens on Citizens
• When citizen engages in basic and essential activities in “foreign state,” the foreign state must have a substantial reason for treating non-resident differently from its own residents. |
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| Full Faith and Credit Clause |
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• Applies only to civil matters.
• Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states |
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| National government three branches |
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| Executive, Legislative and Judicial |
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| (President/ Agencies): Enforce laws |
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| (Federal Courts): Interprets laws. |
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| To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. including internet based |
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States
regulate health, safety, public order, morals and general welfare |
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| State police powers will be struck down |
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| if regulations that substantially interfere with interstate commerce |
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| Supremacy Clause and Federal Preemption |
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o Article VI of the Constitution “Supreme Law of the Land.”
o In case of direct conflict between state and federal law, state law is invalid. |
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| when Congress chooses to act exclusively when national and state governments have concurrent powers. |
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| freedom of religion, speech, or of the press, assemble peaceably and petition the govt |
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1. Time, Place, Manner
2. Content Neutral |
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| Commercial Speech Restrictions must |
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o Implement substantial government interest;
o Directly advance that interest; and
o Go no further than necessary |
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| types of speech not protected by the First Amendment |
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o Slander
o Obscenity (Miller v. California).
o Fighting Words |
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| peacetime housing of soldiers |
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| prohibits unreasonable search and seizures |
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| right to grand jury, due process of law, fair payment and no double jeopardy |
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| trial by jury if over $20 |
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| prohibits excessive bail fines, and cruel and unusual punishment |
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| ppl have rights addtl to constitution |
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| Powers not delegated to the Federal govt are reserved for the state and the people |
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| First Amendment guarantees of religion |
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| Fourth amendment requires warrant |
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| with probable cause except for “evanescent” evidence |
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| Procedural Due Process-Constitution requires |
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| adequate notice and a fair and impartial hearing before a Neutral and detached magistrate(judge) |
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• Laws limiting fundamental rights (speech, privacy, religion) must have a ‘compelling state interest.”
• Narrowly construed |
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• 14th amendment
• Strict Scrutiny Test.
• Intermediate Scrutiny.
• “Rational Basis” Test. |
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| Any “suspect class” Must have a compelling state interest which is narrowly construed. |
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o Applied to laws involving gender or legitimacy.
o To be constitutional laws must be substantially related to important government objectives. |
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o Applied to matters of economic or social welfare.
o Laws will be constitutional if there is a rational basis relating to legitimate government interest. |
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| • Fundamental right not expressly found in the constitution, but derived from First, Fifth, and Fourteenth Amendments. |
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| the study of what constitutes right and wrong behavior |
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| individuals evaluate their actions looking at the consequences if everyone in society acted that same way. |
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| humans have basic rights life liberty the pursuit of happiness, because duty cannot exist without a corresponding right |
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| outcome oriented. Focuses on the consequences not the nature of the action or moral values or religious beliefs. |
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| an assessment of the negative and positive effects of alternative actions |
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| corporate social responsibility |
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| the idea that those who run corporations should act ethically and be accountable to society |
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| employees and others can raise RED FLAGS about suspected illegal activity or unethical accounting. |
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| the min acceptable standard for ethical business behavior. |
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| execs hid the addictiveness |
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