Karteikarten
How the Law Works Pt. 2
Karten in diesem Stapel (114)
- 1At Bara phrase meaning “before this court,” or currently being
handled in court.
How does this precedent system work? A judge looks at what other
courts have previously decided in similar situations and then decides
how close the resemblance is between the previous case and the
case at bar. If the facts in the old case and the pending case are
similar enough, the court might rely on precedent and apply the same
rules and reasoning that were applied in the prior case. If the cases
aren’t similar enough, the court could decide to use some, but not all,
of the prior precedent. In this instance, the court will modify the
precedential rule and apply the modified rule to the specific case
before it. After this case is published, it, too, becomes precedent that courts will look to when they come across a similar situation. Courts
can also order a case to be “unpublished.” An unpublished case is not
reported in the official reporter for the court and cannot be cited as
precedent. - 2binding and nonbindingPrecedent from higher courts is binding on lower
courts in the same jurisdiction. So, a lower court must follow a higher
court, or its rulings will be overturned by the higher court.
A court can use nonbinding precedent (also called persuasive
authority) to decide cases. Nonbinding precedent comes from courts without direct authority over other courts. - 3stare decisisAnother term used to describe the common-law method.
a Latin term meaning “let the decision stand.” Not all decisions
stand forever, of course. Society changes, and legal rules that once
worked well might not apply as time goes by. Judges in a common-law system, though, are reluctant to change the law without good reason.
It is important to society that similar cases are decided in similar
manners. This consistency lets people know what has happened to
people who performed a certain act and what will most likely happen
to them if they perform a similar act. When courts feel there’s good
reason to change old law, they usually take great pains to explain their
reasoning. - 4PLESSY V. FERGUSONOne famous example of a court explaining why it changed its mind is
Brown v. Board of Education, the Supreme Court decision that
ordered racial integration in public schools. The Supreme Court had
said in 1896, in a case called Plessy v. Ferguson, that a law requiring
separation of the races in train cars didn’t violate the Constitution—
thus endorsing the principle of “separate but equal.” But in Brown, the
Court rejected the “separate but equal” doctrine and overruled
Plessy—explaining that separate facilities for the races were
“inherently unequal.” - 5civil law systemIn a civillaw system, comprehensive and detailed legal codes are the main
source of law. Courts in a civil-law system interpret the codes, but that
interpretation isn’t necessarily given weight by another court in a later
proceeding. One state, Louisiana, uses a civil-law system for its state
law. Federal courts sitting in Louisiana, though, use a common-law
approach. - 6administrative lawFederal and state agencies are often empowered to make rules
(regulations) affecting the area they regulate. Administrative law has the force of law to those who are
subject to the agencies’ regulatory authority. The statute that created
an agency defines the areas over which the agency has authority.
Agencies aren’t permitted to regulate outside the scope of their
authority—the areas over which the legislature has given the agency
permission to regulate.
Administrative law can be inconsistent with case law, but it can also
sometimes change case law by amending the rules or regulations that
a court has interpreted in a prior case, so that the rules can no longer
be interpreted the way the court did in that case. - 7Agency regulations are challenged on 1 of 3 grounds.1. Those unhappy with a regulation can argue that the regulation
exceeds the scope of the authority given to the agency by the
legislature.
2. Opponents can argue that the regulation adopted by the agency
isn’t consistent with the statute.
3. Regulations can be challenged as unconstitutional. - 8Municipal lawis law enacted by a local government. Building codes,
health codes, and local traffic laws are municipal laws, which are also
called ordinances in some places. Municipal laws can’t conflict with
constitutional law, federal and state statutory law, or administrative
law. Like administrative law, though, municipal law can change case
law - 9Name five countries whose law influenced American law.Any five of the following: England, France, Germany, Native
American tribes, Roman Empire/ancient Italy, Scandinavia
(Finland, Norway, and Sweden), Spain - 10Which has more importance in our legal system, a state constitution or municipal law?State constitution
- 11What are the first ten amendments to the U.S. Constitution called?Bill of Rights
- 12If the language of a statute is unclear, what do courts use to interpret the law?Legislative history
- 13Name three items found in a legislative history.Any three of the following: the original bill as introduced,
amendments made to the bill, committee hearings on the bill,
witness statements, committee reports - 14Name the doctrine that prevents states from passing laws that conflict with federal statutes.Preemption
- 15Court opinions are also referred to as _______.case law
- 16Lawyers perform one of three basic tasks on behalf of clients:counseling, litigating, and negotiating. These tasks cover a lot of
ground and often overlap. Preparing a lengthy memo for a client on
several legal points is counseling, as is a five-minute telephone call on
occasion. Litigating can be arguing motions before a judge, writing
briefs to file in court, or questioning witnesses. Negotiating can take
place as part of a multimillion-dollar merger or as part of discussions to
settle an employee grievance. - 17casebook methodLaw schools use what’s known as the casebook method of teaching,
which means that parts of cases illustrating a particular point of law
are gathered together in a book. Law students read the cases to try to
understand the law in a certain area. In class, professors question
students on their understanding of the reading. This query-oriented
method of instruction is known as the Socratic method, named for the
Greek philosopher Socrates. - 18California, Vermont, Virginia, and WashingtonFour states currently allow people
to sit for the bar exam even though they haven’t graduated from an
accredited law school - 19barristersLawyers in England who represent clients in court and other lawyers are called solicitors.
- 20Law firmsare usually organized as partnerships or limited liability
corporations, which include partners, or senior attorneys, who own the
law firm. In addition to its partners, law firms usually employ associate
attorneys (associates), who are younger, less-experienced lawyers.
Firms also employ lawyers as counsel, which can mean several
things. Counsel can be a lawyer who has practiced for decades and wants to keep working, but not carry a full caseload. Counsel can also
be a younger, though experienced lawyer, whom the firm is evaluating
for a few years to see if a partnership makes sense for both the firm
and the lawyer. - 21Working for CorporationsCompanies usually include one senior lawyer (often a vice-president
of the company) as its general counsel. Other lawyers who work for the company are called deputy, assistant, or associate general
counsels. These lawyers, often experts in a particular area of the law,
advise the corporation solely on legal matters in their area of
expertise. Alternatively, a lawyer might be assigned to one of the
company’s business units, and therefore be expected to advise on all
the legal issues of the business unit. - 22How many years of post-secondary school must lawyers generally complete before sitting for the bar examination?Seven
- 23After graduating from law school, what must a lawyer do to be able to practice law?Pass the bar exam
- 24Most lawyers work in what kind of setting?Law firm
- 25What’s the most common basis for lawyers to bill clients for legal work?By the hour
- 26What federal agency has the most attorneys and legal assistants on staff?Department of Justice
- 27Lawyers in the United States usually choose to focus their practices on either _______ or _______.Litigation, counseling
- 28Cite checkingg is looking at all the citations in a document to verify that
they’re accurate and follow the proper form. (You’ll recall that citations
are references to legal authorities used to back up a lawyer’s
arguments in a case.) - 29Name six possible job functions of a legal assistant.Any six of the following:
Maintaining case files and master client files
Creating file systems for cases
Coordinating reviews of documents for litigation and due diligence
Reviewing documents for relevance
Interviewing witnesses
Drafting basic legal documents
Performing legal research
Cite checking legal briefs and memoranda
Digesting and indexing transcripts
Preparing exhibits
Perform administrative tasks - 30Name two characteristics of a good legal assistant.Any two of the following:
organized
responsible
reliable
intelligent
resourceful
self-motivated
able to approach problems calmly, rationally, and creatively - 31attorney-client confidentialitymeans that
communications between a lawyer and a client can’t be disclosed to
anyone by the lawyer. In other words, lawyers can’t tell anyone what a
client has told them in confidence. It also means that lawyers can’t tell
anyone what they’ve told the client in confidence - 32attorney-client privilegeAttorney-client confidentiality is also known as attorney-client privilege.
This term comes from the fact that attorneys must claim a privilege, on
the client’s behalf, against testifying if asked about a communication
with a client. If a valid privilege against testifying is asserted, the
witness can’t be compelled by a court to answer the question. Note
that the privilege actually belongs to the client. The client is the only
one who can waive that privilege and allow the privileged information
to become known. If the attorney talks about privileged information
without the client’s permission, the attorney is liable for malpractice. - 33work-product privilege doctrineLawyers can also keep confidential their strategy and research for
their clients under the work-product privilege doctrine. Work-product
refers to any materials prepared by an attorney, or at the direction of
an attorney. The work-product privilege is only for materials prepared
“in anticipation of litigation,” according to the Supreme Court. This
means that there must be a reasonable belief that a lawsuit is
imminent for the work-product privilege to apply.
Under the work-product privilege, statements
given by potential third-party witnesses to attorneys in a lawsuit don’t
have to be disclosed.
Work-product privilege covers witness interviews conducted by legal
assistants, among other things. Without the work-product privilege,
statements of third-party witnesses would have to be given to
opposing counsel, if requested. The work-product privilege also
protects other notes, memoranda, and drafts that contain the
“thoughts and mental impressions” of an attorney. - 34If an attorney does any of the following, even inadvertently, attorney client privilege is waived:Produce a document containing a confidential attorney-client
communication to the opposing side during litigation
Tell a third-party witness’ lawyer something that the client told the
lawyer confidentially
Tell opposing counsel, during settlement negotiations, something
that the lawyer’s client had revealed in confidence
Allow the client to answer a question during a deposition about a
confidential attorney-client communication - 35A client and her fiancé come to a lawyer’s office to discuss some legal problems of the client’s new company. Is the conversation covered under attorney-client confidentiality? Why or why not?The conversation isn’t covered because the fiancé was present; the presence of a third party destroys the intent to keep the
communication between the lawyer and client confidential. - 36What are two prerequisites for a confidential attorney-client communication?Attorney-client relationship; Intent that the communication is
confidential - 37What are two exceptions to attorney-client confidentiality?The lawyer knows the client is going to commit a crime that
endangers someone; the lawyer must defend against a later
lawsuit by the client against the attorney - 38What information about the cases on which you’re working can you share with your spouse?Information that is publicly known
- 39If, as a legal assistant, you write a memo about your interview of a potential witness, what’s the name of the privilege that applies to keeping that memo secret?Work-product privilege
- 40Name two types of documents that are covered by this privilege.Any two of the following: notes of conversations, notes from
research, drafts of legal documents, memos of interviews,
research memos - 41For attorney-client confidentiality to apply to statements made to a legal assistant, the legal assistant must be _______.doing work at the direction of an attorney
- 42adversary systemThe American legal system is an adversary system, one in which the
parties involved in a dispute are adverse to (against) each other. In
other words, each case has a winner and a loser. In an adversary
system such as ours, courts rely on parties to provide all the
information needed to decide the case before them. - 43hierarchyCourts in the United States have a hierarchy, or order of importance.
Trial courts, the lowest rung on the judicial ladder, are the most
numerous. Trial courts are where lawsuits begin. Next in importance
are appellate courts. Those courts can issue rulings that tell the trial
courts, also known as lower courts, how certain legal issues must be
decided. Generally, the final layer of review, often called a supreme
court, has the final decision on a case, and its rulings are binding on
all courts below it - 44courts of original jurisdictionLawsuits begin in trial courts, which are known as courts of original
jurisdiction. On the federal level, the trial courts are called district
courts. Every state includes at least one federal district court.
There are 94 district courts in the federal system.
Original jurisdiction is the power of a court to try a case and decide it,
as opposed to appellate jurisdiction, which is the power to hear an appeal of a lower court’s decision. - 45writ of certiorariParties wanting review of an appellate court
decision must submit a petition for writ of certiorari. Sometimes called
a “cert. petition,” it gives arguments for why the Supreme Court should
hear the case.
So, a certiorari petition explains why the
case is important enough for the Supreme Court to take it. Some valid
reasons include the following:
There’s a “circuit split,” meaning at least two circuit courts have
decided the same question of law differently.
The case presents an important constitutional issue that hasn’t
been previously decided by the Supreme Court.
The issue is one that will have a wide effect, rather than being
limited to the parties involved. - 46General jurisdictionmeans that all kinds of claims can be heard in that court
- 47What document must a party file to ask the U.S. Supreme Court to review its case?Petition for writ of certiorari
- 48What is the court of last resort called in most U.S. court systems?Supreme Court
- 49What is original jurisdiction?The authority to hear a case at the trial level
- 50In New York State, what is the court of original jurisdiction called?New York Supreme Court
- 51Who presides over agency courts?Administrative law judges
- 52Who decides the kinds of cases that agency courts can hear?Congress or a state legislature
- 53All but one U.S. Circuit Court has appellate jurisdiction over _______.a specific geographic area
- 54Federal JurisdictionJurisdiction works differently in federal courts and state courts. The
U.S. Supreme Court has interpreted the Constitution to say that
federal courts are courts of limited jurisdiction. Limited jurisdiction
(also called subject matter jurisdiction) means that a court can hear
only certain types of cases. For a suit to be heard in federal court,
there must be an issue involving the U.S. Constitution, or a federal
statute or case law that says you’re allowed to bring your claim in
federal court. In other words, the court must have jurisdiction over the
subject matter of the case.
As a general rule, federal courts can’t hear cases dealing solely with
state law issues. However, under federal law, federal courts can hear
disputes between parties who reside in different states if the case is
worth more than $75,000. This exception is called diversity
jurisdiction.
The only time federal courts can review the judgments of state courts
on appeal is when constitutional issues are involved in the case. State
courts, on the other hand, can never review federal court decisions. - 55State JurisdictionUnlike federal courts, state courts have broad general jurisdiction. This
means that state courts have authority to hear all kinds of cases.
Among other issues, state courts typically have jurisdiction over:
Family law matters, such as divorces and wills
Criminal matters, such as murder and theft
Contracts
Real estate - 56Concurrent JurisdictionWith concurrent jurisdiction, state courts can decide questions of law
and rights under the U.S. Constitution and federal statutes, in many
circumstances. Indeed, unless a federal law states otherwise, state
courts can hear most federal law issues.
Congress has restricted some types of cases to federal courts—such
as patent cases, federal labor law, and bankruptcy matters. If
concurrent jurisdiction exists for a particular case, it’s up to the parties
to decide in which court they want to litigate. - 57RemovalAlthough a plaintiff brings a case in state court, if the defendant is from
a different state, he or she might want the case transferred to federal
court. The provision that allows a case to be transferred from state
court to federal court is called removal.
A case can be removed to federal court only if diversity
jurisdiction applies. Remember that to use diversity jurisdiction, the
parties can’t live in the same state. Even if the parties live in different
states, the case must be worth more than $75,000. - 58JudgesState judges are appointed by state or local politicians, or must run for
election.
Federal judges, on the other hand, are appointed by the president and
confirmed by the Senate. Once a federal judge is appointed, he or she
serves for life, unless they resign, die or are impeached. These judges
known as Article III judges, because their authority is derived from
Article III of the U.S. Constitution. The Constitution states that they
shall serve during a period of “good conduct” which is interpreted as
being for life. Impeachment can occur if a judge is convicted of a
crime or found to be mentally incompetent. Federal magistrates and
bankruptcy judges are not appointed for life. - 59Pendent JurisdictionFederal courts are allowed to hear claims that usually can be heard
only in state courts, under a theory called pendent jurisdiction.
“Pendent” comes from the Latin word pendere, which means “to
hang.” Under pendent jurisdiction, in a case before a federal court,
that court may hear a state law claim over which it wouldn’t normally
have jurisdiction if that claim arises out of the same facts as the
federal claim.
Normally, the federal court would throw out (refuse to hear) the state
law claims, because the federal courts don’t have jurisdiction over
state law issues. But if the state law claims grow out of the same set
of events that generated the federal claims, the federal court can
exercise pendent jurisdiction. In other words, the state law claims
“hang,” or are pendent, from the federal law claims. - 60Case or ControversyAll federal courts and most state courts hear only cases with an active,
real dispute between two or more parties. Parties can’t pretend to
have a dispute, and there must be a reasonable chance that the court’s decision will change the situation between the parties. This
requirement is called a case or controversy.
The case or controversy requirement prevents federal courts from
giving advisory opinions because they’re opinions about theoretical,
not real, disputes. Seven states, though, do allow advisory opinions:
Colorado, Florida, Maine, Massachusetts, New Hampshire, Rhode
Island, and South Dakota. - 61Mootness and RipenessAnother jurisdictional requirement, closely related to the rule
prohibiting advisory opinions, is the mootness doctrine. A case is moot
when the parties are no longer disputing something, even if they have
in the past. So, if the parties settle a case, the case becomes moot.
The flip side of mootness is ripeness. A case must be ripe before
courts can decide it: there must be a real controversy, not just a likely
one. So, for example, a real estate developer can’t sue the local
zoning board because it’s considering adopting a new zoning law the
developer thinks is illegal. If the developer tried to sue while the board
was still considering a new law, the court would throw out the case because it wasn’t ripe—there wasn’t an actual case or controversy yet.
However, the moment the law is passed, the developer can say there
are particular parts of the new law that adversely affect him or her. At
that point, the case becomes ripe for decision, because there’s an
actual controversy between two adverse parties. The purpose of the ripeness doctrine is to prevent courts from getting - 62Mootness and Ripeness cont....involved in abstract disagreements. Having a real disagreement, not
just an abstract one, gives the court a more detailed, therefore better,
record upon which to decide the case. - 63StandingThe plaintiff involved in a case must have standing, which means that
the plaintiff must demonstrate that he or she has suffered or will imminently suffer an injury. Standing asks if the plaintiff is the proper
party to bring the matter before the court for adjudication.
For standing to exist, there must be an actual or imminent injury
traceable to the defendant’s conduct. Also, a favorable decision must
result in righting of the wrong. Requiring standing prevents ideological
lawsuits and meddling by parties who aren’t part of a real dispute. - 64Venue and Personal JurisdictionAfter deciding the correct jurisdiction for a particular case, lawyers still
must determine the correct venue, or judicial district, in which to file.
Venue comes from the Latin word “place.” So, in addition to being filed
in the proper jurisdiction, cases must be filed in the proper venue, or
place.
Whether the venue is correct depends on several factors, including
Where the defendant resides
Whether the defendant owns property in a particular region
Whether the defendant has some other type of contact with the
venue—e.g., being in a car accident in the state
A plaintiff can sue only in venues where the court has personal
jurisdiction over the defendant. Personal jurisdiction means that the
court has the right to require the defendant to appear before it. It’s
sometimes referred to by the Latin legal term, in personam jurisdiction. - 65Some of the criteria courts use to assess personal jurisdiction include whether the:Defendant regularly visits the state to conduct business there,
including business on the Internet
Defendant owns real property in the state
Defendant maintains a business presence in the state by having
an office, a telephone, or employees there
Events giving rise to the lawsuit occurred in the state— such as
signing or negotiating a contract in the state when the lawsuit is
about that same contract
A defendant may also consent to the court's personal jurisdiction - 66Name the highest court of appeals in the United States.Supreme Court
- 67What kind of court has jurisdiction over divorces?State trial court or state family law court
- 68Name the two types of jurisdiction that allow federal courts to hear state law claims.Pendent jurisdiction and diversity jurisdiction
- 69Do state courts have the power to review federal court decisions?No - State courts can never review federal court decisions. Even
if a federal court decides a state law issue, as they frequently do, the state court doesn’t have the power to review that decision. - 70What are the two prerequisites to invoking diversity jurisdiction?The parties live in different states; the case is worth more than
$75,000. - 71List three reasons that plaintiffs often try to sue in their own judicial districts.Cost, convenience, forum shopping
- 72If the parties to a lawsuit settle their case, the court no longer has jurisdiction because the case is _______.moot
- 73A special-interest group can’t file a lawsuit to prevent Congress from passing a law because they lack _______.standing
- 74The ability of state courts to hear federal law cases comes from _______.concurrent jurisdiction
- 75The correct judicial district in which to file a lawsuit is called _______.venue
- 76Legal reasoningg is logical thinking applied to legal principles.
Together, logic and legal concepts are used to arrive at a conclusion
about how the law applies to a specific set of facts - 77judicial opinionA judicial opinion is a judge’s statement of the decision he or she has
reached in a case.
Parts of a Judicial Opinion
Every judicial opinion has several common elements, including:
Caption of the case, which lists the plaintiff and defendant (e.g.,
Gene Smith v. Ken Jones)
Docket number—the number assigned by the clerk’s office to the
case when it’s filed
Name of the judge or judges who decided the case
Facts of the case
Issue(s) presented—what the court is being asked to decide
Holding of the case—the ultimate decision of the court
Procedural posture—who prevailed in the case and at what point
in the proceedings
Date of the case - 78The CaptionIn official court reports and opinions, the caption lists all the parties to
a lawsuit. The name commonly referred to in a case often isn’t the full
name of the case as you’d find it in the official caption. For example,
the full caption for the famous case usually called Brown v. Board of
Education is Brown v. Board of Education of Topeka, Shawnee
County, Kansas.
***When you’re
drawing up documents for filing in a lawsuit, you must make sure that
all the parties are listed by their full names in the caption*** - 79The Docket NumberThis number, assigned by the clerk, contains a great deal of
information, if you know how to interpret it. Let’s say that your case is
assigned docket number 99-CIV-1072 NLJ (SXC). The first part, “99,”
tells you the case was filed in 1999. “CIV” indicates the case is in the
civil docket, rather than, for example, the criminal docket. The next
part, “1072,” tells you that your case was the 1,072nd case filed in the
civil division in that court for 1999.
. Many federal courts, in
particular, also have additional letters after the case number. In our
example, “NLJ” represents the initials for the judge assigned to the case, Nathaniel L. Jones. The next set of letters, “SXC,” are the initials
for the magistrate judge assigned to the case, Shirley X. Cashen. A
magistrate judge is used in federal courts to oversee the discovery
process. Magistrate judges decide procedural issues in cases before
they go to trial. - 80The JudgeYou’ll frequently see judges’ names indicated like this:
Reid, J.
Warren, C.J.
Don’t make the mistake of many first-year law students and think that
those letters are the initials for the judge’s first name. The “J.” stands
for judge or justice; the “C.J.” for chief judge or justice. Some states
have presiding judges, in which case you will see “P.J.” after the
judge’s last name. - 81Procedural PostureProcedural
posture tells who prevailed in the case and at what point in the
proceedings.
Understanding the procedural posture is important because it tells you
whether the court had no facts, some undisputed facts, or a number of
disputed facts before it when deciding the legal issues. Generally,
lawyers like to cite cases in their court briefs that have a similar
procedural posture to the case they’re arguing. - 82The FactsIn the world of law, there are two types of facts: general and legally
relevant. General facts tell us the basic story of the case. For
example, general facts could be that the plaintiff is 32 years old, has
been granted three patents for designing innovative office products,
and lives in Chicago. Legally relevant facts directly support or
contradict a particular legal theory.
Legally relevant facts are a subset of the general facts. A fact isn’t
necessarily legally relevant in every situation. For example, if a patent
infringement case is filed by the plaintiff described above, where he or
she lives isn’t legally relevant to deciding if a patent is infringed. But if
the defendant in that same case files a motion to move the case to
another court 500 miles away from the plaintiff, the fact of where the
plaintiff lives becomes legally relevant to that motion. - 83The Issue PresentedThe issue presented is the legal question the court has been asked to
address. In well-written judicial opinions, the issue presented is quite
clearly identified. In many courts, the style is to say, “The issue before
us is whether. . . .” - 84The Holding (conclusion of law)When discussing a
judicial opinion as a whole, a holding is the overall legal reasoning by
the court about who wins, who loses, and why. In that sense, there’s
only one holding for every case. However, to arrive at the ultimate
decision about who wins and loses, the court might need to make
several separate holdings of law, often referred to as secondary or
subsidiary holdings. These subsidiary holdings are usually a required
logical step in getting to the ultimate conclusion of law. - 85The Finding (conclusion of fact)A holding is a conclusion of law, while a finding
is a conclusion of fact.
Remember this legal adage: courts find what the facts are and hold
what the law is. - 86case-briefA case-brief is a way of setting out the important parts of a case in a
format that’s easy to read and analyze.
Your case-brief should include:
The name of the case
The date it was decided
The legally relevant facts
The issue presented
The holding
A short statement of the reasoning - 87Where in an opinion do you find the names of the parties?In the caption
- 88Name three things the docket number of a case tells you.The year filed, the type of case, how many cases were filed
before it - 89How long does a defendant have to file a motion to dismiss?20 days, unless the parties agree to an extension
- 90What are three results that the overall holding in a case tells you?Who wins, who loses, and why
- 91Facts that help prove a specific legal point are _______ facts.legally relevant
- 92A finding relates to _______ ; a holding relates to _______.facts, law
- 93Substantive and Procedural Due ProcessThe U.S. Constitution guarantees all citizens two types of due
process: substantive and procedural. Substantive due process is a
guarantee that a law isn’t unreasonable, arbitrary, or capricious.
Procedural due process guarantees that the procedures used for
administering the law are fair and that notice will be given before the
government deprives a citizen of life, liberty, or property.
The due process guarantees are found in the Fifth and Fourteenth
Amendments to the Constitution.
Procedural due process requires the state and federal government to
follow fair procedures in civil legal matters, criminal legal matters, and
any other situation where the government is trying to deprive an
individual of life, liberty, or property. - 94Substantive due process guards against laws that are_______, _______, or _______.unreasonable, arbitrary, capricious
- 95Which amendment to the Constitution applies the due process guarantees to the states?Fourteenth Amendment
- 96What are the three things procedural due process protects from government deprivation without fair procedure?Life, liberty, and property
- 97Where are the basic liberties in our society found?Bill of Rights
- 98Name two basic liberties the Supreme Court has said exist, that aren’t directly stated in the Constitution.Right to privacy, freedom of association
- 99Conflicts of LawIf two states’ laws could potentially apply to a single dispute, there’s a
conflict of law. Conflict of law issues usually surface in tort, or civil
injury, cases.
A tort is a civil wrong or injury. Elements of a tort are that there must
be a legal duty owed by one person to another, that duty must be
broken, and harm done as a result. Note that in tort law the term injury
isn’t confined to personal injury (physical wounds).
There are two theories for deciding which state’s law applies. The one
used by a majority of states is called the interest analysis system. The
other theory, used in fewer than 20 states, is called the vested rights
system.
Under the interest analysis theory, courts look at the policies being
promoted by the different states’ laws to decide which state’s law
should apply. - 100Conflicts of Law cont....The vested rights theory works differently. The most important factor
in a vested rights analysis is where the event at issue took place.
Under the vested rights theory, the rights surrounding an event vest,
or take effect, at the place where the event occurs. - 101Domesticate (Enforcing Judgments in Different States)Domesticate means that Ms. B must file a
lawsuit in State K, using the judgment from State J as the basis of the
claim. Under the full faith and credit clause, State K must enforce the
judgment from State J. Some states have a judgment registration
procedure for enforcing out-of-state judgments. This procedure can be
used instead of having to file an entirely new lawsuit, to enforce a
judgment.
The full faith and credit clause applies only to state court judgments. If
a plaintiff is in federal court, he or she needs only to register the
judgment in the appropriate federal court district. It will be enforced
there without any further proceedings. - 102Comity (Enforcing Judgments from Foreign Countries)Judgments from foreign countries are sometimes enforced in U.S.
courts under a doctrine called comity. Comity means courtesy, or
respect, for judgments of foreign courts. Under the comity doctrine, a
state or federal court voluntarily chooses to accept a foreign court
judgment.
The United States is bound by treaties to honor and enforce the
judgments of many different foreign countries. If a treaty requires a
foreign country’s judgment to be enforced, the judgment must be
enforced in both federal and state courts. No choice can be made as
to whether to enforce a judgment if a treaty requires enforcement.
Therefore, comity isn’t invoked when courts must enforce certain
foreign judgments. - 103What minimum constitutional standard must state court judgments meet to be entitled to full faith and credit?Due process
- 104Which conflicts of law doctrine looks only at where events leading to the lawsuit took place?Vested rights theory
- 105Conflicts of law arise whenever more than one ______’s laws potentially apply.state
- 106_______ doesn’t exist if a treaty requires a court to enforce a foreign country’s judgment.Comity
- 1073 legal doctrines that could prevent a plaintiff with a winning case from getting a judgment in his or her favor:statute of
limitations, res judicata, and immunity - 108statute of limitationsA statute of limitations is a law stating that after a certain period of
time, a plaintiff can no longer bring a claim, even if it has merit. In
other words, the claim is no longer legally enforceable.
Most claims have a statute of limitations somewhere between two
years and four years. States have general statutes of limitations for
various broad types of claims, such as contract and tort. In addition,
individual statutes often contain their own limitations. This is
particularly true with federal statutes - 109Res JudicataJust as the government is barred from trying a defendant twice for the
same crime, plaintiffs can’t bring the same lawsuit twice, under the doctrine of res judicata. Res judicata is a legal doctrine that prevents
parties from relitigating the same lawsuit once it has been through all
possible appeals. The Latin phrase res judicata means “the thing is
decided.” Both plaintiffs and defendants are barred, under this
principle, from relitigating a case that has been litigated before.
For this doctrine to apply, the same parties and the same legal issues
must be involved.
There must be some type of final decision in a case before res
judicata applies. If a plaintiff decides to voluntarily drop her lawsuit
before trial, she could still bring that same claim later on. But once a
judgment has been rendered, the parties are barred from bringing the
same claims again. - 110ImmunityImmunity is a doctrine that prevents certain classes of defendants
from being sued. If a defendant is allowed to claim immunity, that
means that no matter how meritorious the claim against him or her,
the suit won’t be allowed to proceed.
There are several kinds of immunity. One of the most well known is
governmental, or sovereign, immunity. Under this immunity doctrine, citizens aren’t permitted to sue the government unless the
government allows the suit. - 111Statutes of limitations penalize __________ who “sleep on their rights.”plaintiffs
- 112The ____________ for murder is longer than for sex discrimination.statute of limitations
- 113__________ prevents one party from relitigating the same lawsuit against the same party more than once.Res judicata
- 114You (can, can't) __________ sue the government.can - Federal and state governments permit certain kinds of
lawsuits against them.
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