Midterm Study Guide.doc

Law and Society Prof. Wollenberg Revised Midterm Study Guide Cases and theories to focus on when studying for the midterm: Natural law: St. Thomas Aquinas and Martin Luther King Jr. St. Thomas Aquinas Law is a rule and measure of acts, where man is induced to act or restrained from acting Law must be in accord with reason God instilled natural law in man?s mind Martin Luther King An unjust law is a code that a majority inflicts on a minority that is not binding on itself An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because they not have the . . . right to vote Positivism: John Austin and H.L.A. Hart John Austin Law is a command A wish or desire conceived by a rational being that another rational being shall do or forbear An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish An expression or intimation of the wish by words or other signs Positive laws are established directly or immediately by three types of authors: monarchs or sovereign bodies, men in state of subjection, subjects in pursuance of legal rights Positive moral rules Bulk of society in habit of following commands from certain superiors Society not in habit of following commands of human superior H.L.A. Hart Law as is and law as it ought to be are one entity not two as Austin believes Separation of law and morals in incorrect Belong together as one Legal realism: Oliver Wendell Holmes, Jerome Frank and Karl Llewellyn. Oliver Wendell Holmes People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared The training of lawyers is the training in logic Jerome Frank When challenged by ourselves or others to justify our positions or our conduct, we manufacture ex pos-facto a host of ?principles? which we induce ourselves to believe are conclusions reasoned out by logical processes from actual facts in the actual world Older lawyers learn the ropes and can be creative in their cases, while recent graduate find a huge gap between what they learned in law school and what they witness in the courts and offices Karl Llewellyn How legal precedents do and do not limit case outcomes Legal precedents can limit a case?s outcomes through having had a law passed allowing judge to base current ruling on previous case?s ruling Legal precedents do not limit outcomes because when a current case has precedents from another, the judge can find that the previous ruling was in fact wrong or unconstitutional Llewellyn?s distinction between strict and loose views of precedents The civil litigation process, and how civil and criminal cases differ. Civil actions involve claims arising from private disputes and conflicts over tort liability as well as divorce and child custody, the scope of juvenile rights, the regulation of business corporations Decision to commence civil litigation begins with injury that is perceived to be a legitimate grievance Process Civil disputes begin with the payment of a fee and filing a complaint which identify relevant parties, the factual and legal allegations of the conflict and the sought after outcome in terms of legal remedies Once case is filed, clerk of court issues summons to defendant to appear in court and directs defendant to respond in admitting or denying plaintiff?s claims; defendant may then file counterclaim if necessary to which plaintiff must reply Either party may submit a motion to dismiss the case Possible because the allegations fail to state a claim in which relief can be granted Summary judgment ? no genuine issue as to any material fact and that the moving party is entitled to a judgment as matter of law If decided upon, court resolves legal claims without further proceedings Burdens and costs of litigating civil claims is closely tied to the time and effort it takes for lawyers to gather key facts and evidence 5 Types of Discovery Requests for admissions The party may receiving the request may answer it by the way in which a defendant responds to the allegations in the complaint, by ignoring it (which ?admits? the issue), by admitting it, or by claiming insufficient knowledge Interrogatories Requests for production Depositions Expensive technique that solicits the sworn testimony of a party or third-party witness Motions for physical or mental examination Civil Case Outcomes Civil cases are conducted in same way as criminal trials. Civil litigants have right to jury if amount in question is more than $20. Differences from criminal cases Burden of Proof at trials preponderance standard: the judge or jury weighs the facts and evidence in terms of whether the allegations are probably more true than not Criminal cases: proof beyond a reasonable doubt Clear, convincing evidence for heavier cases such as termination of parental rights Relief available in civil cases Compensatory damages: attempt to put injured parties back into the positions they were in before the harm occurred Punitive damages: monetary deterrent against future violations of law Nominal damages: positive outcome in cases involving no harm, and juries award a nominal sum Final Step: Enforce judgment against defendant if there are no intervening post-trial motions that upset the verdict or if there is no appeal Adversarial v. inquisitorial legal systems Features Inquisitorial (Civil Law) Adversarial (Common Law) Facts investigation Collaborative effort with prosecutor and judge discovering facts together Litigants opposing each other separately discover facts without judge?s help Pre-Trial Process Less extensive More extensive Trial Process More disjointed, more costly Singular event (after pre-trial), less costly Judge?s Role Active, engaged; more bureaucratic Passive, neutral; less bureaucratic Jury Rarely used Used often (especially in USA) Bail Rarely used Used Often (especially in USA) Legal Education Undergraduate Graduate Attorney?s Role More collaborative, less influential Less collaborative, more influential Plea Bargaining Unusual Typical Code law and common law systems ? how they differ, how they are the same Code law Emphasize written civil codes constructed by legislatures Found in Europe, Asia, South America, and parts of Africa Modern civil codes are generally a systematic collection of general legal principles and laws enacted by legislative bodies Civil law systems are inquisitorial in operation and differ from adversarial systems which are similar to the USA Except for criminal cases, basically no trial process and judgs play fact-finding role and determines facts and evidence before issuing ruling Common Law based on rule of judges US, Canada, Australia, Ireland, and England Based on writing of William Blackstone power of courts and judges to make law and social policy through judicial review Common law systems are adversarial and lawyers have considerable power to shape and make the law through a competitive struggle to win a case Legal education in common law countries is generalist in scope and gained through a graduate degree after earning an undergraduate degree; practical experience through practice emphasized Judges tend to be selected for service on the basis of their professional accomplishments instead of formal academic acheivement The four types of law ? statutory, constitutional, administrative, and common (US) law ? what are they and who or what makes them Legislative Law Also known as ?statutory law? consists of the enactments of an elected legislative body Ordinance ? another form of written, legislative law, usually referring to the laws passed be a local government body or county board of supervisors Statutes and ordinances are enforced once passed, unless it is repealed by the governmental body that passed it or ruled unconstitutional by state or federal court Judicial Law Adjudication ? the process by which courts apply statutes, ordinances, or constitutional provisions to the facts of a particular case Courts must often interpret the laws based in the situation it is being used for Courts may develop new legal doctrines that become part of the law Lawyers sometimes call judge-made laws ?case law? or ?common law? to distinguish it from legislative resources A central element is ?stare decisis? ? the process of following the points of law established by other courts in earlier cases When courts apply stare decisis to cases, the process is called ?precedent? ? the authority of a prior ruling in a similar case Constitutional Law Thought of as a hybrid between legislative and judicial law Similar to legislative law in that it exists in the form of a written document, it is similar to judicial law in that most studies of ?constitutional law? refers to judicial law where the constitutional law has been interpreted and applied Constitutional law links adjudication and legislation; courts have the power to invalidate legislative enactments that violate provisions of a state or federal Constitution ? known as ?judicial review Administrative Law Comprises all of the regulations, standards, and decisions that derive from the many administrative agencies created by Congress and the executive branch These agencies were created to regulate certain areas of social life Such agencies have the authority to issue regulations that have the force of law Substantive Law Civil Law Law regarding private disputes between parties over property, business transactions, accidents and injuries, etc. private party ? can be individual person, a small company, or a huge multinational corporation entity not governmental Criminal Law Law concerning wrongs against the state Procedural Law Regulates the process of resolving a civil law suit or criminal case Procedure in civil cases Cases begin with pleadings ? the documents filed in court by the plaintiff and defendant. Discovery ? evidence gathered by both sides Pretrial ? conducted by judge assigned to the case to determine whether the arties are ready to go to trial After a jury is selected, a trial is conducted, at the conclusion of which the jury reaches a verdict for the plaintiff or for the defendant Procedure in criminal cases Preliminary Hearing ? examines the basis for the charges against the defendant, who can waive this step Offers the accused the opportunity to challenge the prosecution?s case before the court If judge determines that sufficient evidence exists to send the case to trial, the defendant will face an indictment ? formal presentation of the charges against him or her Arraignment ? the defendant must then enter a plea to the charges in the indictment Not guilty ? trial Guilty ? awaits sentence imposed by court Normally part of a plea bargain ? arrangement in which the defendant agrees not to contest charges if prosecutor will agree to lesser sentence Nolo Contendere ? literally ?I do not contest;? functionally equivalent to a guilty plea but does not actually admit culpability; plea of nolo contendere cannot be used in later civil or criminal proceedings as an admission of guilt In both civil and criminal cases, the losing party has the right to an appeal a verdict an appeal asks another court ? the appellate court ? to examine whether an error occurred in the proceeding in which the losing party lost Appellate courts do not retry the facts or hear evidence; simply review the allegation that an error took place at the trial level; frequently set precedent that then becomes part of that law Sets out roles and functions of the various participants involved in a court proceeding Judge ? oversee courtroom procedure and to serve as the determiner of the law; authority on what the law requires in a given case, and he or she must rule on many different requests from the parties to a civil or criminal proceeding Plaintiff ? person who files a complaint in a civil case Defendant ? person in which complaint has been filed against; person charged with offense Attorney ? one who zealously asserts the client?s position under the rules of the adversary system adversary system ? based on a concept of justice that assumes that the truth is most effectively discovered and justice best obtained by trials in which two opponents vie with each other, clashing before an impartial tribunal, each testing the other?s merits as thoroughly as possible Jurors composed of citizens who are to serve as the ?triers of fact? ? the people who sift through evidence, listen to both sides, and determine the facts and after receiving instructions from the judge, apply the law to them in order to reach a verdict If defendant waives her or her right to jury, aka bench trial, the judge does all of the juror?s job and makes the final decision in the case Difference between trial and appellate courts Trial Court Steps US district Court Process US Courts of Appeal US Supreme Court Appellate Courts NJ Superior Court NJ Appellate Division of Superior Court NJ Supreme Court Understand how the precedents developed in the domestic violence cases, though you don?t need to memorize which case involved what size of switch! Strict Precedents: confining to the facts of the case, does not have to look/judge by precedents Loose precedents: working with previous cases without regard to facts Be able to define and explain: Utilitarianism ? Something?s value is based on its usefulness; ?the greatest good for the greatest number of people? Ex post facto laws ?After the fact;? a law that makes legal an action that was done before the law was passed. Such laws violate Article I, Sections 9 and 10 of the United States Constitution Torts ? A civil wrong, other than a breach of contract, for which a court will provide a remedy; as long as a person is personally harmed, it is a tort Comparative negligence Legal offense that reduces the amount of damages that a plaintiff can recover in a negligence based claim based upon the degree to which the plaintiff?s own negligence contributed to the cause Contributory negligence If you had any part in the cause of your injuries, you are unable to recover any damages from the defendant (common law) Strict product liability Liability without proof of fault. In civil law, one who engages in activity that carries an inherent risk of injury or is ultra-hazardous is often liable for all injuries proximately caused by that activity; in criminal law, strict liability offenses are those that do not require proof of mens rea (criminal intent) Cases - be able to identify, give a brief description of the facts, what the Court ruled, and why it?s significant: Butterfield v. Forrester (Contributory Negligence) Defendant left a pole blocking the roadway which plaintiff, riding his horse as fast as possible, did not see it and was injured Court ruled that both parties were at fault since had plaintiff been riding slower and safer, he could have prevented accident Case thrown out Holden v. Wal-Mart (Comparative Negligence) Holden steps in pothole and injures her leg in Wal-Mart parking lot Surgery costs 25K, sues Wal-Mart Recover $3600 Court ruled that Holden could have avoided injury had she paid attention to the road while walking/parking in handicap spot