Law from COMMON courts

(as opposed to legislature/federal gov't) 

"Doctrine of Precedents"

Common law doctrine:

   - binds subordinate court of higher court decisions in similar cases

sources of laws

1) Lawmaking by Legislators 

Statutes: enacted by Congress/State legislatures

Ordinance: written; enacted by city/county

(zoning)

Written Law:  reference to fed/state/local gov'ts statutes and published rules of admin agencies

Codes: statutes grouped by subject matter

(vehicle code)

Sources of Laws

2) Lawmaking by Exec Branch

Sources of Laws

3) Lawmaking by Courts 

trail/ appellate courts

Sources of Law

4) Lawmaking by the People 

initiatives: process for making new statutes voted on by legislature of by the people (not in all states)

Types and Classifications of Law

Federal and State

Civil and Criminal

Private and Public

International and Domestic

Procedural and Substantive

Subject Matter Classification

US constitution

Congress' statutes

treaties/presidential orders

vs

State constitutions

State legislatures' statutes

State appellate decisions

 the body of law that pertains to civil/private rights

the total system of law (Roman empire)

-contrasted to Common Law

Branch of law dealing with crimes/punishments

regulates rights and duties existing between private persons (or corporations)

- ie. Contract Law  

concerned with public rights/obligations

-ie constitutional, administrative, criminal, & int'l law

governing relations b/t & among sovereign nations

- ie criminal law (Bosnian War)

domestic constitutional issues

-ie Nuclear Proliferation; electronic eavsdropping

general principles/rules defining the methods of administrering substantive law

- different between civil & criminal cases

general principles/rules defining legal rights and duties

Subject Matter classification

constitutionalism

fudamental law restricting arbitrary power

ensure "limited gov't"

Judicial Review

Power of US Supreme Court to declare

Unconstitutional act of Congress, President, or Law 

Three branches to check & balance

legislative

executive

judicial 

"after the fact"

makes previously lawful conduct a crime  

RIGHT TO VOTE

initiative process: petitions by voters/legislature may be filed for new statutes or constitutional changes

referendum: state legislature refers proposed or existing laws to electorate for approval/rejection

recall: removing public officials after petition 

inherent power of gov't

laws for safety, morals, or welfare of public

*even if limits individual freedom 

judicial document

any state/federal law that is inconsistent with the US Constitution is null and void 

part of US Constitution

provides Congress power to pass laws to provide trade with foreign countries and among states

*Interstate: crosses state boundaries

*Intrastate: within state boundaries 

first 10 amendments of Constitution

Free speech

religion, press, assemble peacefully, petition gov't 

Bear Arms

Prohibits Unreasonable Searches

**Exclusionary Rule:

   - precludes any evidence improperly obtained by prosecution in criminal court

Due Process (legal proceedings)

Double Jeopardy

Self-Incrimination 

Speedy & Fair Trial

**Compulsory Process

- requires witness to appear in defendant's favor by court order 

Prohibits Excessive Bail

Unusual Punishment 

Determine:

1) Facts

2) Rules of Law

3) Apply the rules to the facts 

FARCE TRIAL

lacks proper procedure/fairness

Outcome predetermined 

Review decisions of prior courts for

Substantive and Procedural correctness 

Power of a court to decide and award relief

Geographic area

Person/subject over whom court makes decision 

proper place trial held

various methods besides Judicial process to resolve

negotiation

mediation

arbitration

"The forum should fit the fuss" 

*states requirements vary

Most:

1) graduate of law school

2) pass bar exam

3) continuous legal education 

written rules of acceptable conduct adopted by members of professional group

go hand in hand with the law 

retainer fee: advance payment held in trust account

hourly rate

flat fee

contigency: percent of earnings

conflicts of interest (lawyers)

client's interests at odds

attorney serves or is tempted to serve the opposition

oral,written,or implied

Method of Expression

Parties Bound

Legal Effect

Extent of Performance

by conduct or body language

(purchase of items from Stadium vendors) 

Method of Expression

contracts

implied in fact (body language)

quasi-contract (obligation - doctor off clock)

formal (legal language/form)

simple (all that aren't formal)

Parties Bound

contracts 

bilateral (promise for a promise)

unilateral (promise for completed act)

valid

void

voidable

unenforceable 

may be enforced or rejected by a party

* a minor may invalidate a contract even if its legal 

Unenforceable contract

Extent of Performance

contracts 

 executed contract

executory contract 

1) Competent parties

2) Mutual agreement

3) Reciprocal consideration

4) Genuine Assent

5) Legality in formation and Execution 

6) Form prescribed by Law 

compensatory damages

-actual $ loss

liquidated damages

- $ previously agreed on in case of breach 

Consumer Protection

contracts

Adhesion contract:

-drafted by dominant party

-"take it or leave it" basis 

Caveat Emptor: let the buyer beware

Caveat Venditor: let the seller beware 

Before-Sales Laws

During-Sales Laws

After-Sales Laws 

Consumer Credit Protection Act

1968 

*During-Sales Laws

Truth in Lending Act

- full disclosure 

*During-Sales Laws

amended Truth in Lending

 controls credit card companies

- must apply for card

- max $50 unauthorized use 

Fair Credit Reporting Act

1970 

*During-Sales Laws

FCRA

consumers to check and correct credit info 

Equal Credit Opportunity Act

1974 

*During-Sales Laws

forbids discrimination under CCPA 

Fair Credit Billing Act

1974 

*After-Sales Laws

users of credit cards may challenge correctness without penalty 

Principal-Agent

Employer-Ordinary Employee

Contracting Employer- Independent Contractor

employment may be terminated at any time without any liability

by either employer or employee 

Civil Rights Act (1964)

unlawful for employers (of 15+) to discriminate

race

color

religion

sex

national origin

Equal Emplyment Opportunity Commission (1972)

granted power to eliminate violations of law

Title VII charges may be filed within 180 days

*must be done BEFORE lawsuit 

negotiation b/t representatives of union & employers

-terms and conditions 

wages

hours

 Collective Bargaining Agreement (CBA) or

Collective Employment Agreement (CEA).

OSHA

Occupational Safety and Health Act (1970,98)

safe/healthy conditions

ERISA

Employee Retirement Income Security Act (1974)

pension plans protected

FMLA

Family and Medical Leave Act (1993)

unpaid leave for serious health problems 

National Labor Relations Act (1935)

"Wagner Act"

**Labor-Management Relations Act (1947)

"Taft-Hartley Act"

- outlawed

'closed shop'

secondary boycotts 

company in which all employees must pay union dues

even if they aren't members 

1932: Anti-Junction Act

Norris-La Guarda Act

1935: National Labor Relations Act

Wagner Act

1947: Labor-Management Relations Act

Taft-Hartley Act

1959: Labor-Management Reporting & Disclosure Act

Landrum-Griffin Act 

1946 Employment Act

-work for all willing and able

**doesn't guarantee...campaign phrase 

  Customary law

& Conventional law

states follow practices generally & consistently,

out of a sense of legal obligation

Counsels: 

  Trustee

   Security

                General Assembly

    Economic

       Int'l Court 

        Secretariat 

June 26, 1945

15 elected members

9 year terms  

15 members

5 permanent *designated by UN Charter

China, France,Russia,UK,USA

10 elected *by Gen.Assembly -  2yr term 

EU

NATO

G77 (1964) 

Intellectual property type

*protect ONE right: specific thing you have patented

types:

1) utility

2) design

3) plant 

Intellectual Property Type

protect works of authorship, such as writings, music, and works of art that have been tangibly expressed

Intellectual Property Type

protect words, names, symbols, sounds, or colors that distinguish goods and services.

Trademarks, unlike patents, can be renewed forever as long as they are being used in business

Intellectual Property Type

is not protected by law. However know-how has significant value for if you do not know how to practice an invention, the invention is of little value

information that companies keep secret to give them an advantage over their competitors

 William Marbury

-had been appointed as Justice of the Peace 

        by President Adams shortly before leaving office

When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury's and several other men's commissions

Supreme Court denied Marbury's petition,

            -holding that the statute upon which he             based his claim was unconstitutional.

Judiciary Act of 1789

Separate but equal

Homer Plessy - train car (1/8 black)

ruled against plessy 

overturned Plessy v. Ferguson 

ruled a violation of the Equal Protection Clause of the Fourteenth Amendment

Brown's daughter Linda, a third grader, had to walk six blocks to her school bus stop to ride to Monroe Elementary, her segregated black school one mile (1.6 km) away, while Sumner Elementary, a white school, was seven blocks from her house.

bars quota systems in college admissions but affirms the constitutionality of affirmative action programs giving equal access to minorities

5-4 that race could be only one of numerous factors used by discriminatory boards, such as those of college admissions

upheld  affirmative action admissions policy of the University of Michigan Law School. 5-4 decision

Barbara Grutter,

white student

a 3.8 GPA

161(LSAT) score

rejected

Process of interpretation (US Supreme Court)

Uses 14th amendment to restrict states' power on individuals' freedom

Protects communication between attorney & client

Applied in all states

*exceptions:

- Defending malpractice cases

- Warning of client's contemplated crime

- Avoiding assistance of crime

1) Disbarment

2) Suspension

3) Probation

4) Reproval  

1) Retainer

2) Contingency 

3) Flat

English: loser pays all

 *unless receiving gov't aid $

American: each party pays own lawyer fees 

*loser pays court costs though 

Alternate Dispute Resolution

Negotiation 

Private process

Parties decide verdict

Cooperative

 No time frame

Low cost

Parties decide procedural rules

No grounds for appeal 

No attorney needed

No jury needed

No permanent record 

Private process

Parties decide verdict

Cooperative

 No time frame

Low cost

Parties decide procedural rules

No grounds for appeal 

No attorney needed

No jury needed

No permanent record

Private process

Arbitrator decides verdict

Adversary

2-18 months

Medium - high cost

A few simple procedural rules

Few grounds for appeal 

Attorney needed

Minimal discovery allowed 

No jury needed

No permanent record

Public process

Judge/Jury decides verdict

Adversary

High cost

Complex procedural rules

 All grounds for appeal 

 Attorney needed

Discovery process 

Right to jury

Permanent record

Americans with Disabilities Act (1990)

-both public & private companies

-must have reasonable accomodations 

Occupational Safety & Health Act (OSHA-1998)

-an amendment to initial act in 1970

Employment Equality Act (1998)

-against age discrimination 

National Labor Relations Act

"Wagner Act"

1935

right of employees to

1) form unions

2) collectively bargain

*with representatives of choice

Labor-Management Relations Act

"Taft-Hartley Act"

1947

amendment to Wagner Act (1935)

1) Outlaws closed shop

2) Outlaws secondary boycotting

3) Lists unfair labor practices of unions 

Labor-Management Reporting & Disclosure

"Landrum-Griffin Act"

1959

"Bill of Rights of Union Members"

*regualtion of internal union affairs

- financials (control/regulations)

- officers must face at election

@ least once every 3 years 

testate - deceased person WITH will

intestate - deceased person WITHOUT will

devise - gift of real property by will

bequest - gift of personal property 

(legacy)

executor - representative named in will

administrator - appointed by court if no valid will left

probate - proving validity of will in court

Lineals - 1st

  - grandparents

- parents

- children

- grandchildren 

Collaterals - 2nd

- aunts/uncles

- siblings

- cousins 

* w/o any heirs, assets transfer to state

Formal Will

(witnessed) 

drafted by lawyer, signed by testator @ end

 & made with witnesses present...

1) Testamentary capacity

2) In writing - typed

3) Signed by testator

4) Witnessed 

*5) Published (sometimes required)

> declaration by maker that document they are about to sign is indeed their will 

"nuncupative will"

testator is in fear of imminent death

usually two witness must hear

uncommon 

elimination of specified gift in will

because it no longer exists 

wrongful persuasion of testator

-deprives testator of freedom while making will 

Statutory prescription for distribution of estate among heirs

deceased didn't leave will

court proceeding where

*wills are proved valid or invalid

*estates of descendents administered/distributed

paid as part of Probate

Net assets AFTER debts/liabilities are distributed 

payable to

personal representative/attorney handling estate

Many states allow distribution of assets w/o Probate

- small property values, car title transfers, etc 

Uniform Probate Code

(UPC) 

adopted in 11 states

- Testator 18 and of sound mind

-  Written and signed

- Two witnesses

-Permits Holographic Wills

flexible document

authorizes person to make decisions for a person once incapacitated

"attorney in fact" 

Trusts created before death

Revocable or Irrevocable 

operative during trustor's life

- cannot be terminated or revoked

-property cannot be returned to settlor

*cannot be changed w/new circumstances 

Income from Trust is taxable 

operative effect during trustor's life

-may be terminated by trustor

-terms can be changed

- 

created by will

effective upon death of testator

-if will invalid, trust invalid

- doesn't avoid estate taxes/probate fees 

designated trustee to decide which beneficiaries recieve periodic payments of income/principal

Designed for segment of public

or of public 

maintanence of a beneficiary

by preventing improvidence with bestowed funds

limiting control of the principal of the trust 

bank depositors whereby they deposit money

as a trustee for another person 

guilty state of mind

holding person responsible for crime 

Two essential elements of every crime

1) harm has occured

2) because of criminal act 

Murder

-First degree: capital murder - death/life

-Second degree: noncapital - <life

Manslaughter

Voluntary: intentional killing - crime of passion

Involuntary: accidental - vehicular recklessness

Rape

Statutory: adult and minor

Extortion

obtaining valuable via force,intimidation,etc. 

Blackmail(money)

Kidnapping

Robbery

Mayhem

depriving victom of use of body part

Criminal Assault

threat of violence on another

Criminal Battery

assault is successful - injury occurs

Hate Crimes

persecution of victim = motivation

*race, religion, etc

Terrorism

Stalking

unwelcome intrusion/harassment

causing fear or concern

Arson

Burglary

Theft

Stolen Property Received

 Identity Theft

legal right of use of force

*reasonable to protect oneself

Criminal Defense - forced participation 

Threat of Actual physical harm

deprives person of freedom of will to decide 

Exclusionary Rule: evidence improperly obtained not permissable in court

Probable Cause: standard for search&seizure 

suspect becomes accused following this

types:

complaint

information

indictment 

1)Complaint

2)Warrant for arrest issued

3) Preliminary heary

4)trial or dismissal 

private wrong

injures victim's person or property

**allowing monetary remedy of damages