Multiple Choice law question

law_and_policy_midterm_study_guide.docx

Law and Policy Midterm Study Guide

*Extra credit following the exam - know crimes vs torts

Marbury v Madison (Established the theory of judicial review)

· Landmark United States Supreme Court case

· Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution

· Article III - establishes the judicial branch of the federal government

· Judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress

· Landmark decision helped define the boundary between the constitution and separate executive and judicial branches of government

· Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution

· Legal principle of judicial review came from this case

· Judicial review - ability of the court system to look at a law and say whether its valid or not and keeping with the constitution

· Any dispute can be taken directly to the Supreme Court which gave new jurisdiction to the Supreme Court

· The supreme court adopted a monitoring rule over government actions

Case details

· Washington and John Adams lost election to Jefferson

· Adams tried to put his people places to poison the new government

· Hijacked the Judiciary Act (how judges are appointed) 1801

· Adams tried to stack the bench as judges

· Marbury was a Justice of the Peace

· Marbury never got his appointment

· Jefferson, created his Judiciary Act of 1802, that undoes everything that Adams did back to 1789

· Marbury asks for his appointment because it was assigned but never delivered, court wouldn’t hear the case

· Petition was denied

FINAL: Justices on the current Supreme Court:

1. Ruth Bader Ginsburg

2. John Roberts Jr (Chief Justice)

3. Sonia Sotomayor

4. Clarence Thomas

5. Anthony Kennedy

6. Samuel Alito

7. Elena Kagan

8. Stephen Breyer

9. Merrick Garland (proposed by Obama)

Antonin Scalia just recently died and was the best friend of Ruth Bader Ginsberg

Brief cases ( IRAC):

Issue - What is the case about and the issue

Rule - The laws that were discussed

Application - How the law was applied, or not applied

Conclusion - The final outcome

FINAL: The Bill of Rights

1. Speech, Religion, Press, Assembly

2. Right to bear arms

3. No quartering act - can’t be forced to let troops live with you

4. Freedom from unnecessary search and seizure

5. Due process clause - right to an impartial judge, freedom from self incrimination, no double jeopardy

6. Right to a speedy trial and your right to counsel

7. Trial by jury in civil cases

8. No excessive bail or cruel and unusual punishment

9. These rights do not deny other rights

10. Rights that are not reserved by the federal government are reserved to the states

Amendment I – Freedom of Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II – Right to Bear Arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III – No Quartering

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV – Freedom from Unnecessary Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V – Due Process (no double jeopardy)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI – Right to a Speedy and Public Trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Amendment VII – Right to Trial by Jury

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII – No cruel and unusual punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX – Do not deny other rights

The enumeration in the Constitution, of certain rights, s hall not be construed to deny or disparage others retained by the people.

Amendment X – Rights reserved to the States

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Basics of Law

FINAL: Tort – civil crimes, handled in Civil Court; Punching someone in the face; suing is the civil side/the tort. Person seeking something from a person

· A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act

· Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal negligence

· The victim of the harm can recover their loss as damages in a lawsuit

· In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm

· Tort law is different from criminal law in that:

· Torts may result from negligent as well as intentional or criminal actions and

· Tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt.

· Sometimes a plaintiff may prevail in a tort case even if the person who allegedly caused harm was acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.

Civil Court is people seeking something from people. Person seeking something from a person.

· Biggest thing people sue for in civil court is “negligence.” Fail to exercise reasonable care.

Criminal court it is retribution by a grieved society.  Don’t have the option of whether or not to press charges, it will happen.

Negligence: Someone owed a duty to someone else; someone breached the duty and caused damages. Parking on a hill and then the car rolled and hurt. A reasonable person would have put their parking brake on. But because there is no law, this is just negligence.

Negligence has elements:

1. Duty - someone owed a duty to someone else

a. Strict liability - something is so inherently dangerous, if something happens to someone, you’re liable/negligent. Example: own a dynamite factory and one of your employees gets hurt.

a. The defendant has to prove that what they did was within normal conforming laws

1. Breach - someone breached that duty

1. Causation - that breach caused damages

You were the actual cause OR

You were the proximate cause (you didn’t exercise reasonable care)

Stare decisis - is the doctrine of precedent. The definition: laws and interpretations of laws are created from prior legal cases and decisions and judges are obligated to respect the precedent.

Negligence per se - its written, its the law. Says if you violate the law or the policy its presumed that you are negligent. Its all but proved that you were negligent (i.e. drunk driving).

Negligence is owing someone a duty, i.e. providing them with a safe car ride home, if the car’s tire blew out you could be found negligent if the tires were bald. Negligence per se is drunk driving, because drunk driving is against a written law but you did it anyways.

FINAL: Criminal Law

*Assault - assault is placing someone in immediate apprehension of harmful or offensive contact, a threat. i.e. raising your fist at someone. You have to be aware of it in order for it to be assault.

*Battery - physically harming someone (if you were hit from behind this would be battery because you weren’t aware of the harm before it occurred)

Assault and battery on the criminal side and on the civil side

Robbery vs burglary - Burglary is a crime against property, robbery is a crime against the person

*Burglary - the unlawful entry into the dwelling of another with the intent to commit a larceny or felony therein (someone breaks in and steals jewelry from an empty house)

*Robbery - the unlawful taking of an item from another by force or fear. Someone commands something from you (someone steals your purse)

When the crime leaves burglary and becomes robbery – a kid breaks in and steals a bag of skittles, if left would have been burglary, but if he pushed the employee, then it is robbery.

*Theft - is the unlawful taking of an item from another (stealing items from a store)

Unlawful entry - you’re not allowed to be there. Dwelling could be residence or storage unit or wherever, to commit a larceny or felony. Intent matters and what they do once inside matters.

*Homicide - unlawful killing of a human being with malice aforethought (premeditation)

Larceny is a crime involving the unlawful taking of the personal property of another person or business.

Felony murder rule - if you were engaged in the commission of a felony and another person dies, you’re on the hook for murder too. You didn’t intend to commit the murder but you intended to commit the felony and it resulted in a death = 1st degree murder

Like if you sold drugs to someone who overdosed and died?

False pretenses- misrepresentation of a material fact with the intent to defraud

· Material Fact: something a reasonable person would take into consideration before entering a transaction. i.e. Selling a car without disclosing it has transmission issues

Article III of the constitution is where judges get their power and determines the cases they can hear.  At supreme court, between states and ambassadors.

New York Times v. US

The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment.

To exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger

New York Times v. Sullivan (Public Official Defamation)

· Established actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel and allowed free reporting of the civil rights campaigns in the southern United States

· Defamation of a public official

· One of the key decisions supporting the freedom of the press

· The actual malice standard requires that the plaintiff in a defamation or libel case, if he is a "public figure", prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity

· Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail.

FINAL: Actual malice: a knowing or reckless disregard for the truth and Actual Malice must be proved against a public official

“ Limited issue public official” - something individual i.e. Octomom. Actual malice has to be proven if its based on the issue they are known for. i.e. Donald Trump and accusation of filing fraudulent taxes. A normal person doesn’t have to prove actual malice.

Defamation - is false statement about another person published to a third party. Speech that is not protected. Truth is the absolute defense of defamation. Libel (written) and slander (spoken)

Free Speech – expression without restraint

The 14th amendment applies the bill of rights to the states

· The 14th amendment is a very important amendment that defines what it means to be a US citizen and protects certain rights of the people.

· There are three important “clauses” in the 14th amendment, each of which are still important today.

· Citizenship Clause – gives all Americans born in the US and African Americans the right to citizenship.

· Due Process Clause - Protects the 1st amendment rights of the people and prevents those rights from being taken away by any government without “due process.”

· Equal Protection Clause - This part of the fourteenth amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments. This clause of the 14th amendment would later be used to end discrimination and segregation in the South.

Clear and present danger rule came first in 1919, with the case of Schenck vs US then Imminent lawlessness was adopted with Brandenburg vs Ohio in 1969.

Near v Minnesota – government cannot exercise restriction of speech or restraint, except in rare circumstances

Schenck vs US (Distributed Anti-War Flyers)

· Enforcement of the Espionage Act of 1917 during World War I

· Defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense

California public records , any item is available for review. You can get copes if you pay for them.

Sue the Government: If you are suing a government entity, requirement gov’t doc number 954.4, have to make a claim within 6 months of injury for your damages in writing.

Death Penalty: California Superior court must review every case where the death penalty has been opposed

Federal Court : Why do you want to be in federal court?

· Defendants want to be in federal court, plaintiffs want to be in state court.

· Federal court is more proper, more controlled and the rules are easier than state civil court. Less regulations/rules in federal court

Statute of limitations

· How long after something happens you have before you cannot sue

· Evidence diminishes (witnesses, evidence, etc.).

· Based on the gravity of the crime, not the propensity to disappear.

Before you file a law suit, statute of limitations:

· Which statue of limitations applies (the tort you are suing for )

· When does the action accrue

· Are there any tolling provisions (pauses the statute of limitation (minor under 18, lack of capacity, incarceration)

You can shorten/lengthen the statue of limitations, cannot extend past 4 years past its end date.

Jurisdiction: What can be heard? CA courts have 2 jurisdictional (subject matter jurisdiction and personal jurisdiction).

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter.

Example: bankruptcy court only has the authority to hear bankruptcy cases.

Personal jurisdiction : is the power of a court over the parties in the case. Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits.

· Court can hear cases as long as the defendant had resided in CA at the time of the injury/accident (reside with the intent to remain)

· If the defendant is personally served while in CA, includes flying in a plane over CA

· If the defendant consents to CA jurisdiction (contracts cases).

· When the defendant has made an appearance and realizes that the court can adjudicate an answer; defendant has minimal contacts with the forum state – can expect to me hailed into court there.

Everything regarding jurisdiction you are looking at the defendant, because the plaintiff already submitted to the courts jurisdiction

Serving Someone :

· The person who is serving, has to be over 18 and not a party to the case

· You can serve someone by any means that are allowed.

· Have to make 3 attempts, in person, then 2 others.

Venue to file your action: Venue, refers to the county where the action may be filed; give the defendant control of where the action may be filed.

General rule: venue is proper in the county where any of the defendants reside at the commencement of the action. If the defendant doesn’t reside in CA you can file in any county.

Permissive counter claims : Litigate multiple claims all at once

Pleadings – complaint is the document that starts your lawsuit.

Plead Doe’s 1-10 – the purpose is to add later parties to the case.

Can amend your complaint 1 time before it is filed ,otherwise you have to ask the court permission

Motion for judgment on the pleadings: there is no case here

Motion to strike : Oral: remove from the record; Written: get it out of the public record because there is no proof.

· Most common place used, Strike Punitive damages (damages to punish, make an example out of something)

Anti-slapp motion : the whole reason you are suing is to crush my first amendment right. Newspapers file these. Strategic lawsuit against public participation (SLAPP). There is a slap back motion.

Example: If I was to write a Yelp review, the business could try to sue me (SLAPP), I would file an Anti-SLAPP motion, the business would file a Slapp Back.

The answer in a pleading :

· Allege why things are wrong, they didn’t do anything wrong

· For each cause of action they have to give an answer, either admin or deny.

· Have to plead any defenses they have; if the don’t plead then they lose their ability to. If u don’t file demurrer, motion to strike, then they have 30 days to answer.

Discovery: the formal exchange of information between both sides of the law suit.

· Production of documents – request for production of documents

· Interrogatories – written deposition; questions and facts about the incident (CA can ask 35 questions).

· Deposition – out of court examination, similar to what you would have at trial, sworn under oath; illicit testimony and hear attorney’s objections – see the testimony and lock it in

· You can ask almost anything at a deposition, except for things that are privileged. Privileged information; patient/dr; clergy, sexual assault victim/counsellor;

· Written Deposition : they have 30 days to file an answer after default judgment.

· Subpoenas – this is the exception – this is for people that are not parties

Default Judgment : You have 30 days to file an answer

Default motion is when you file a complaint and you serve the party and they don’t file a motion in 30 days, you file for default which locks them out of the case.

· Civil code section 473 – if in 6 months, you can file this to show there was an inadvertence or mistake to set it aside

Settlement Negotiations: You can never talk about in court is discussions during settlement negotiations. Not allowed to bring up any information, because you bring it all out on the table.

Exception to Confrontation Clause : Witness unavailable or refuse to testify and the statement needs to be non-testimonial. Right to confront witnesses that will testify.

· Crawford case (911 tape, this is not testimony), tape was used.

· Testimonial evidence is not allowed unless you have the right to cross examine the witness.

· Domestic violence where there is a 911 call, the call is asking for help, not testimony.

Heresay : An out of court statement offered for the truth of the matter asserted.

· Heresay is not allowed in court, unless there is an exception, due to the unreliability of the statement, don’t have the ability to prove it was true.

· If you are looking at a statement to determine it was heresay: Out of Court / Statement / Offer for the Truth of the Matter Assertive (OTMA).

· Exceptions where heresay is allowed:

· Admission by a party (because voracity is presumed);

· dying declaration – Guy with his last breath makes statement (because voracity is presumed);

· Excited Utterance – it’s what falls out of your mouth when you hear something;

· Statement against pecuniary interest – a statement that would hurt you (retelling what a third party told you).

5th amendment : You cannot be forced to testify against yourself; your spouse cannot be compelled to testify against you. Miranda rights. Spouse could waive these rights.

4th amendment – protected from unreasonable search and seizure. Employed via warrants.

· If you want to search something or someone, you need a warrant.

· If an officer sees a felony in front of them, they can arrest without a warrant.

· If the police officer doesn’t see a misdemeanor, a citizen’s arrest can help this along.

· The search requirement of the 4th amendment, you can only look where you are allowed to look.

Warrant : A warrant is a judicial order to effectuate something, arrest, seize, return.

Included in a warrant, must be supported by probable cause, has to be issued by a neutral and detached magistrate (a judge), has to be an oath or affirmation (by the person applying for the warrant), has to plead particularity (plead the small thing you can, which will allow you to search the smallest of areas)

· Valid arrest warrant and have probable cause that the person is there, the house can be searched.

· Finite scope, can only look where the person could be hiding, nothing smaller than the size of a human.

Fruit of the poisonous tree , all the seizures, if I don’t have a lawful right or take something unlawfully, everything that comes from this is inadmissible.

· Exceptions: Found independently, then it could still be used. At whichever point the contact of the seizure is unlawful, it cannot be used as evidence against you.

Warrant Exceptions

SILO (Search Incident to a Lawful Arrest) – been arrested at your house and now the police can search your house.

· Under this exception to the search warrant requirement, an arresting officer may search only the person arrested and the area within which that person might gain possession of a weapon or might destroy or hide evidence.

· Elements: Search incident to a lawful arrest, custodial arrest in cuffs. Has to be lawful and has to happen at that moment:

· Scope: Can search your person, can search anything within your wingspan or anywhere you reasonably were when you were arrested. If you are arrested in your car and then search your car, so long as you are not restrained, but you are not free to go.

Search for an arrestee: when a police officer enters a dwelling for someone to arrest. Elements: need a valid warrant, must have probable cause the the subject is in the dwelling. If they something that is evidence to the crime for you are there, they can seize unlawful items from the house.

Exigent circumstances (an emergency): you must have probable cause and it has to be an emergency. Have to prove that if you didn’t seize or do what you did that it would have been destroyed. Seize the items until you get a warrant to open it, to preserve the evidence. Hot pursuit, you can chase someone into a house, if the person is suspected of convicting a felony.

Cars : If they have probable cause to search your car, they have to have a lawful reason to be at your car. If they pull you over and they believe your car has evidence to the crime, they can search your car. If they want to pull the compartments and door panels off, they need to have a warrant. Elements: car is stopped on a car or highway and is readily able to be used on the highway and the officer believes it is part of the crime or contains contraband they can search the car.

Can only search the car when the person is not handcuffed, unless the search if for an arrestee.

Plain view Doctrine , if the cop sees it and knows it’s illegal they can seize it.

· 3 elements

· Must observe from a lawful vantage

· Must have a right of physical access

· Nature of the object has to be apparent for search and seizure

This doesn’t work when a cop is in a house looking for a missing person, and knows the person who owns the house is a stereo thief, the stereo cannot be seized because it is not illegal, must have a warrant for that.

Inventory search , either your car is impounded or your arrested for a crime involving your car. Searched for contraband and to protect the entity that arrested you, so that when you get your car back, everything is inventoried for proof so you cannot say something is missing. Same as when you arrested, all items are inventoried.

Consent searches , when you consent to a search. You don’t need to know that you have a right to say no to a search. There has to be actual consent and it has to be voluntary. Cannot coerce someone, can lean on someone but no coercion, based on the totality of the circumstances. You can set the scope of the search.

Apparent Authority Doctrine: you appear to have the authority to let them do the search. Someone who the police believe the person has the the authority to grant access.

Stop and frisk doctrine : you have to have a reasonable suspicion. Specific and articulable facts when taken together with rational inferences from those facts that reasonably warrant an intrusion.

Have right to council for both 5th and 6th amendment

· The 5th amendment applies when you are about to be arrested

· The 6th applies once you have been charged. Once you initiate that right, the police cannot interrogate you unless your attorney is there, however this doesn’t not stop the investigation.

· Exceptions: they can come to your cell and try to talk to you about a separate case, in which you need to invoke the 5th amendment right. They can ask you if you want to waive that right. If they waive that right under the 6th, they can invoke it at any time, in which all questioning will stop.

Vicarious liability is where you are responsible for the torts of another person. Someone will try to show that you are responsible or have some level of responsibility over the person who committed the tort. Example, employee runs over a person during working hours, the business can be sued.

Respondeat Superior – whenever some one is on the clock and they hurt someone, the employer is always sued.

· At what point is the employer still responsible for the employee – still responsible, even if they made a mere deviation from their scope of work.

· Not responsible if person has abandoned duties and completed tortious acts.

· i.e. Tortiously injuring someone while on lunch break (not a deviation).

· Tortiously injuring someone when you abandon work to go to a Dodgers game, the employer is not covered.

The 3/5ths compromise – slaves were counted as 3/5 of a person for the representative process.

Voting Rights Act

Shelby County v Holder:

· Voting rights acts passed in 1965

· Section 5 (added to the act to freeze any discriminatory requirements to cover jurisdictions, to guarantee the 14th and 15th amendments)

· Section 4b (jurisdiction or states that included certain tests or devices to make citizens eligible for voting).

· Supreme Court determined it was unconstitutional to continue with using the formula that was passed under congress under section 4b.

· Didn’t rule on section 5, just concentrated on section 4b.

· Section 2: Can’t do anything discriminatory

· Section 4b: Here’s a formula to determine if you are

· Section 5: If you are subject to 4b you have to get approval before you make changes to your laws

15th amendment (1870) is enacted, says you cannot stop people from voting based on their race, servitude, religion

19th amendment – women’s right to vote in 1920

24th amendment no poll taxes, 1964

26th amendment – set the age to 18 years to vote

Voter ID Laws , very controversial – democrats don’t want it, republicans want it. To maintain voter integrity, Voter ID Laws is valid. Department of justice review.