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1. To structure the government (e.g. Constitution) 2. ³To protect citizens´ from the Government (e.g. Bill of Rights) 3. To protect minorities from majorities 4. Setting standards of conduct behavior 5. To create orderly change -rather than revolution or anarchy
6. To resolve disputes peacefully, civilized 7. To punish wrong doers -Criminal Law: Free room & board $ (Fines) -Civil Law: Punitive Damages 8. To compensate victims ± Civil Law: - $ (Actual Damages) - Injunction (Court Order) - Order for Declaratory Relief
9. Taxing Revenue for the Government 10. Reallocate Resources 11. To foster stability, reliability, predictability Etc. To foster, promote morality To promote health & safety
SOCIETAL INFLUENCES ON THE LAW 1.Democratic vs. Local Government) 2.S. State.U. totalitarian system . Systems of Government . Religion/Cultural/Traditions -Western -Asian -Islamic 4 . is a republic (Federal.
women/gay/minority rights. safety.Standards of Morality/Ethics abortion.Wealth health. slavery. cloning.3. euthanasia. and flag burning 4. physician assisted suicide. environment protection. Technology: Internet. and cost $$$ 5. telecommunications 5 .
HISTORICAL SOURCES OF AMERICAN LAW 1.Presumption of entitlement to the wife (upon death of husband) 6 . at time of marriage becomes 1 .Husband has management/control of resources as head of the household -Presumption of alimony to the wife (upon divorce) .British ± 13 colonies Influences on State Marital Rights Law .Premise: before marriage 2.
Florida Influences on State Law -Community Property (equal ownership & management of income earned during marriage) -Water Rights .Real Property (Mineral Rights) 3.2. Spanish ± Western 9 states.French ± Louisiana .Remnants of Napoleonic influence 7 .
-Reservation Law -Relationship with State Law 8 . Alaska .4.S. Native America Tribes -Exist as a ³Nation´ -Oral Tradition -Treaty status with U.purchase from Russia 5.
CONSTITUTION 9 .
senior executive.Conduct trial of impeached officials 10 .Article I ± Congress ± 2 Houses (House of Representatives ± 2 yr terms) Unique Duties. branch officials and federal judges -Ratify treaties . Rights of : -Confirmation of cabinet. Rights of : -Initiate all spending bills (appropriations) -Initiate (issue) Articles of impeachment (Senate ± 6 yr terms) Unique Duties.
2.g. Impose & Collect Taxes Impose Duties (e. 5. tariffs) Import & Export Controls To borrow money To regulate commerce ± basis of the most federal statues 6. To establish rule of Naturalization 7.Article I Section 8 of the Constitution (so-called ³enumerated powers´) ± Gives Congress the power to: 1. To coin money 11 . 3. 4.
e. US Highways) 9. To establish post office and post roads (federal. To define and punish piracies 12 . To provide and maintain an army 12. To raise and support armies 11. To constitute tribunals (federal courts) 13. i.8. To declare war 10.
S.Article II . Rights of President -Commander in Chief of the Armed Forces -Enforces the Law -Negotiate Treaties. Foreign Policy *Can be impeached Article III ± Federal Court System Federal Judges .Duties. Supreme Court 13 .Nominated by the President & Confirmed by the Senate ± Life tenure (*can be impeached) Establishes jurisdiction of the U.
Constitutional Amendment Process 2.Article IV ± Full Faith & Credit between each States Article V ± Amend Constitution 1. Constitutional Convention Process Article VI ± Federal Law supersedes State Law (pre ± emption) ± Supremacy Clause Article VII ± Ratify Constitution by 9 of 13 states 14 .
AMENDMENTS Bill of Rights (1st 10 Amendments) 15 .
assembly. petition the government for a redress of grievance 2nd Amendment ± To bear arms (state militiaNational Guard) 3rd Amendment ± No soldier in time of peace shall be quartered in any house unless prescribed by law 16 . speech. press.Amendments to the Constitution: 1st Amendment ± 5 Freedoms: Religion.
double jeopardy.Amendments dealing with Criminal Law: 4th Amendment ± Unreasonable/unlawful search & seizure (evidence is excluded from trial when wrongfully seized by Government) 5th Amendment ± Right against self incrimination. due process (trial). eminent domain (if Government takes your property there must be compensation of fair market value) 17 .
6th Amendment ± Right to a speedy & public trial (usually 60 days). keel hauling. Protection from cruel & unusual punishment (burning @ the stake. Right to confront your accusers. severity of crime. Right to a defense counsel in a criminal case 8th Amendment ± Excessive bail not be required (based on risk of accused fleeing the jurisdiction. torture) 18 . whipping. wealth. safety of public).
00 dollars 9th Amendment ± ³Catch all´ Inherent rights of people 10th Amendment ± States are the sovereign: limited authority of Federal Government 13th Amendment ± Slavery 19 .Continuation of Amendments: 7th Amendment ± Suits of Federal Common Law where controversy exceeds $20.
national origin 16th Amendment ± Income Tax 18th Amendment ± Prohibition of alcohol 19th Amendment ± Women¶s Suffrage 20 . not based on color. religion. race.14th Amendment ± Section 1 ± equal protection and due process provision (makes citizen protections contained in the Bill of Rights also applicable against States) 15th Amendment ± Right to vote.
20th Amendment ± Terms of President & Vice President to end at noon on January 20th 21st Amendment ± Repealed the 18th Amendment 22nd Amendment ± President shall serve no more than 2 terms in office 23rd Amendment ± District of Columbia to have representation in Congress 24th Amendment ± Citizens to vote without having to pay voting taxes 21 .
25th Amendment ± Process by which the Vice President becomes the President in the event of incapacity/death of President 26th Amendment ± Lowered voting age to 18 27th Amendment ± Compensation for services of Senators and Representatives can become effective only during a subsequent Congress 22 .
BASIC LEGAL CONCEPTS
The Law Hierarchy:
C = Constitutional Law S = Statutory Law (Congress ± Article I of Constitution) E.O = Executive Order (President ± Article II of Constitution) Regulation (Administrative) Law ± 1) Power to issue the regulation ± based on Statute or E.O. (Grant of Authority) 2) Procedural requirements a) Fact finding (hearing, investigations) b) Propose regulation for comment
Example of US Administrative (regulatory) Agencies:
OSHA - Occupational Safety Health Administration *Regulates work place safety FDA - Federal Drug Administration *Regulates food and drugs for safety and efficacy FTC ± Federal Trade Commission *Regulates unfair or deceptive business practices SEC ± Securities Exchange Commission *Regulates security markets, exchange and deals FAA - Federal Aviation Agency *Regulates private and commercial aircraft, crews, airplanes, and airports EPA ± Environmental Protection Agency *Regulates toxic emissions, etc. in land, water and air IRS ± Internal Revenue Service 25 *Regulates & Collects Taxes
bridges Cal OSHA *Regulates work place safety in California 26 .Examples of California Administrative (regulatory) Agencies DMV ± Department of Motor Vehicles *To regulate operating and licensing of drivers and vehicles FTB ± Franchise Tax Board *IRS for California EDD ± Employment Development Department *To administer unemployment compensations and job training systems Cal Trans *Administrates and maintains California highways.
e. statutory law.Common Law ± Case law that is not based on constitutional law. judge made law 27 .. executive order or regulation (administrative) law ± i.
but should unless there is a compelling reason not to follow it 2. the court is not bound to follow it.if a court of equal rank or in another jurisdiction gives a ruling. Stare Decisis ± ³The decision stands´ ± Judicial principle that a court which has decided a legal issue in a prior case will apply to the same legal ruling28 in a subsequent case.Important Judicial Concepts 1. . Precedent ± same legal issue that was decided before -Mandatory ± lower court must follow ruling of its higher court -Persuasive .
3. it will not revisit the issue 29 . Res Judicata ± ³Things been decided´ ± within the context of a case. once the court has decided a legal issue.
Judicial & Administrative Law Advantages & disadvantages of Initiative Process 30 .The California Initiatives/ Propositions Process Can amend Cal Constitution Supersede Statutory.
Enforce Law ± Chief Executive (e.g. Interpret Law ± Judicial (Federal Court Article III of Constitution) 31 .LEGAL SYSTEM Three Components: 1. President ± Article II of Constitution) 3. Make Law ± Legislative body (e. Congress ± Article I Constitution) 2.g.
C.Multiple Legal Systems At least 51 systems ± 1 Federal & 50 States (and territories & Washington D.) Complexity for business planning/operations 32 .
State Legislature of CA-2 Houses (State Senate & State Assembly) .State Administrative Agencies 33 .State Legal Systems .State Court System .Generally similar to federal .Governor ± Chief Executive of State .
Role of Political Subdivisions ± created by a state Counties ± Board of Supervisors ± Legislative Body (ordinance) Cities ± City Council ± Legislative Body (Ordinance) .Mayor ± Executive 34 .
TYPES OF LAW Substantive Law ± Rights & Responsibilities 1. 4. Contract Law Tort Law Property Law Etc. 3. ± lots of others 35 . 2.
Criminal litigation 3. Law of evidence 4. Rules of Court 36 .TYPES OF LAW Procedural Law.Process through court 1. Civil litigation 2.
etc. etc. fiber. gun. Sworn Testimony 2.TYPES OF EVIDENCE 1. Documents ± letter. etc. bullet. DNA sample. 37 . sketch. Representatives ± photograph. 3. hair. knife. e-mail. 4. Physical Evidence ± bloody glove. electronic tapes.
Criminal vs. Civil Law Differences Criminal Parties: Government vs. ³Person´ 38 . ³Person´ Civil Parties: ³Person´ vs.
corporations. A ³person´ is a legal entity 2. trade associations) 39 . ± estates.What is a ³Person´ Under the Law? 1. partnership. Types of Legal entities -natural alive person -artificial person (e. trusts.g.
S.S.S. Attorneys -local representatives of the U.Federal Crime ± U.Nominated by the President & Confirmed by the Senate -Heads ³U. Dept. ³Person´ Chief Prosecutor : Attorney General of U. . of Justice´ U. of America vs.S.S. Department of Justice are assigned to specific federal court 40 .
of Justice´ District Attorney (for each county) -Elected position -Prosecutes state criminal law violations occurring within the county 41 . ³Person´ Chief Prosecutor Attorney General of State -Elected Position -Heads ³Cal Dept.State Crime ± People of the state of CA vs.
Civil Law Differences Criminal Remedies: -Jail & or Fine Verdict Requirement: -Guilty or not guilty Civil Remedies: -Damages.Injunction.Criminal vs. Declaratory Relief Verdict Requirement: Liable for _________ 42 .
Jury Verdict Vote: -Unanimous in Fed & Cal -Some states have less than unanimous for state crimes CIVIL 4.CRIMINAL 4. Burden of Proof: -Preponderance of the evidence 5.Jury Verdict Vote: -Federal & CA three-fourths of jury 43 . Burden of Proof: -Beyond a reasonable doubt 5.
Grand Jury Proceedings -no right to have a counsel present Investigative Powers of Grand Jury 44 .Role of Grand Jury Grand jury decides to prosecute a criminal law case indictment Cases taken to grand jury ± government official. securities fraud. government corruption cases. etc. antitrust cases.
A crime was committed and 2.Role of Grand Jury ± cond¶t -Indictment based on Grand Jury¶s Findings that probable cause exists when: 1. That indicted ³person´ committed the crime -Judicial Role in grand juries: *appointment of juries *oversight role -Most criminal prosecutions are brought without grand jury involvement 45 .
ask other attorneys in the same specialty *Methods of Payment a. bar association.Predicates to Litigation (civil) *Choosing an attorney ± check insurer. uncontested divorce. Reputation. Per Project Fee Flat Fee (simple will. Size of Firm. Specialty. Salary ± for employed (government and in-house counsel) b. Counsel on Retainer ± Attorney takes calls and discuss issues. Contingency Fee (% of recovery civil litigation ± plaintiff¶s attorney) d. Corporations have law firms on retainer (especially with specialty) Prearranged Attorney¶s hourly rate based on ± Experience. simple bankruptcy) e. Costs 46 . Location of Firm. Hourly Rate c.
7 Stages of Civil Litigation 47 .
case can be thrown out in full or in part. Motion to dismiss ± even if facts alleged are true.1. Legal theories ± cause of actions v. Identifies Plaintiff iii. Answers ± responsive pleading to the complaint. Civil Pleadings a) Complaint i. there is no legal theory or argument upon which to bring suit. Counterclaim ± defendant suing plaintiff for different legal theory 48 . Remedies Sought b) Responses to Complaints ± 1. Granted. Identifies Defendant vi. admits or denies factual allegations in the Complaint. Short story by plaintiff ± what happened (factual act) vi. Do nothing (default) 2. sets forth affirmative defenses. Identifies the attorney for the plaintiff ii. 4. Or pay what is asked (set a release of all claims) 3.
deliver an oath.written questions & written responses under oath-detailed answers & research information. Strength & weakness of case ii. anyone with relevant information can be disposed (Court stenographer licensed by court. Court order medical examination by other side¶s physician c) Results of Discovery i. Interrogatory . Subpoena ± documents or things from 3rd parties v. Document ± request demand for document (relevant to case) iv.2. Promotes Settlement 49 . Civil Discovery ± can take to a year or more a) Purpose ± to discover facts of case and to uncover evidence for the use in a trial b) Techniques i. Deposition ± sworn testimony. records testimony) ii. good for data requests iii.
3. Motion 2. part or none of it All motions include at least: 1. Summary Judgment ± Motion by one or both sides to the Judge for a decision a) Criteria ± No material facts in dispute b) Results ± Judge applies the law-grant in total. Opposition by opposing side 3. Reply by moving party to opposition Pleading (can take about 6 months) Discovery (can take up to 2 years) Summary Judgment (can take up to 3 months) 50 .
Settlement Conference ± Mandatory conference ± requires attorneys for each side to meet to see if they can settle the case 5. Pre-trial (can take between 3 to 6 months) ± Briefing ± Script of the trial ± For the Judge Exchange of Witness List Evidence ± No surprises to occur at trial 51 .4.
Un-cover juror bias -Challenge for cause -Preemptory challenge 12 jurors plus 2 alternates (alternates do everything but deliberate) After jurors selected they are sworn in b) Opening Statements .Each side gives an overview of the case. can vary in length 52 . Trial ± To determine the facts (basically the same for civil & criminal cases) a) Jury Selection ± ³Voir Dire´ .6. the attorneys tell you what they want you to know.
Direct Exam ± Attorney call witnesses ± they give testimony & lay foundation for evidence to be admitted 2. Cross Exam ± Other attorney gets to question the witness. Trial ± continued c) Plaintiff¶s case in chief 1. Redirect ± Attorney that called the witness gets to ask questions. Recross ± other attorney gets to question the witness again and cast doubt Defendant¶s motion for directed verdict if plaintiff has not proven all elements (components) of his/her theories and therefore can not win 53 . cast doubt to the truthfulness & validity of the witness 3. to clarify answers that were elicited during cross exam 4.6.
6. Trial ± continued d) Defendant¶s case e) Rebuttal f) Sur Rebuttal g) Closing Arguments ± Each Attorney makes their story cohesive for the jurors h) Jury Instructions ± Attorney for each side submit proposed instructions to the Judge: Judge decides what to use based on the law Judge reads the instructions and tells the jury what the law is (elements & defenses & burden of proof) that pertains to the case Jury instructions can vary in length 54 .
6.Elect a foreperson (moderator) ± that person can contact the court through the bailiff. take a vote & come to a verdict In CA the court clerk reads the verdict The losing side can ask to have the jurors polled j) Motion for a judgment not withstanding the verdict ± (ask the judge to overturn the jury¶s decision. the jury¶s verdict is not based on the trial evidence. Trial ± continued i) Jury Deliberations . go over testimony. very rare only about 5% of the time) 55 .
7. Appeal ± Request in the form of a petition by losing party to have an appellate court review the case: asserts the Trial court Judge made a material (significant) mistake of the law. which could have changed the outcome of the case 56 .
Most persuasive reason why Court of Appeals accepts a case for review: Criteria ± 2 lower courts under the courts of appeals¶ jurisdiction came to different conclusions on the same legal issue. or Important legal issues are likely to arise again 57 .
Appellate Procedure Court of Appeals will receive trail court materials. transcripts in order to review the case Briefs by each of the attorneys are prepared and submitted to the court Briefing schedule No witnesses present and no testimony Oral Arguments (in front of 3 justices) ½ hour for each side ± Purpose ± Ask attorneys questions about the legal issue and its application in other scenarios ± Convince other justices to vote their way 58 .
Appellate court can¶t tell how the trial would have turned out if the law had been applied properly.Possible Results ± 1. Reverse ± Material mistake of law by trial court Judge @ trial. Reversed & Remand ± Material mistake of law by trial court Judge @ trial. appellate court sends the case back to be tried again (2nd most common) 59 . Affirm ± no material mistake made by trial court Judge at trial (most common) 2. overturn decision (least common) 3. case should have been decided for the other side.
rule on evidence and procedure motions.The Adversary System England and former English colonies (including US) legal systems based on the adversary system Purpose To do justice. determine the facts and apply the law Role of Trial Counsel . determine facts based on evidence.Role is to win by presenting the facts in a way that is favorable to the client Role of Jury ± Evaluate evidence. listen to testimony. does not ask questions) -w/o Jury ± Rule on evidence & procedure. then get a ruling Role of Judge -w/ Jury ± Instruct jury on the law. apply law as given by the Judge (fact finder) Role of Appellate Court ± Determines if the trial court made a material mistake of law that could have changed 60 the outcome of the case . passive role (i.e. both sides of the case are argued as well as possible.
Usually involves compromise by both sides Disadvantage . less expensive. Any person.Not binding unless & until the parties both agree with the settlement (a contract to settle the dispute) 61 . the parties.Alternative Dispute Mechanisms (ADR) 1. Spend time w/ both sides. Medication (Synonym is Facilitation) -Attempt to facilitate an agreement between the parties. or counselor agree on. can be a mediator Advantages ± listen to both sides separately.
the parties or their representatives agrees upon to act as an arbitrator 62 . Arbitration -Selection of Arbitrator ± Any person.Alternative Dispute Mechanisms (ADR) 2.
Whatever the parties agree on. or what the arbitrator decides if the parties can¶t agree -Cost & Fees ± It depends on what the parties agreed upon. space. -Appeal ± NONE (parties took case out of the legal system) 63 . (usually losing side pays) but there are fees for arbitrator. etc. or what the arbitrator decides if the parties can¶t agree -Substantive Law ± Whatever the parties agree on. Retired Judges. Experts in the industry or field -Procedural Rules . Arbitration Process ± a decision results -Selection of Arbitrator ± Lawyers.
Arbitration Process ± continued -NO Jury -Enforcement of Decision ± File a civil law suit for the breach of contract -Public Press excluded unless parties agree -Punitive Damages ± No -Quicker than civil litigation -Usually represented by counsel (present facts favorable to their client) -Everyday examples of agreements to arbitrate Medical care allegations of malpractice Auto Warranty Brokerage Account 64 .
13 Courts of Appeals (12 based geographically ± Circuit Court of Appeal. Supreme Court ii. Federal Court System (See text) a) 3 levels i.Court Structure 1. Trial Courts 65 . 1 Federal Circuit ± Patents & Copyrights (specialized) a) Congress decides how many courts to have by number of cases iii. Court of Appeals 1.
Specialized Divisions (Appeals. Superior & Municipal Courts 1. Juvenile Court.Court Structure Continued 2. California State Court System (see handouts) a) 3 levels i. 6 Courts of Appeals (geographic) iii. LA County & most others ± has merged the Superior & Municipal Courts 2. Psychiatric) 66 . Probate. Supreme Court (7 justices) ii. Domestic Relations. Adoptions. Typical State Court System 3.
California Small Claim¶s Court Known in the past as The People¶s Court No attorneys allowed ± Judge is the fact finder and administer the law $5000 dollar maximum Business suing customers who haven¶t paid them are the most common plaintiffs Small monetary matters (Tort or Contract law) 67 .
No Counsel ± but defendant can appeal decision Disadvantages (plaintiff) 1. No Jury 2. 2. Advantages Cheap Quick No Attorney (but should consult with one prior to appearing at court) Disadvantages (defendant) 1. 3.California Small Claims Court 1. NO appeal of the decision by the judge in favor of the defendant 68 .
f) Federal Antitrust. Area of Exclusive Federal Jurisdiction a) Bankruptcy. Original Jurisdiction of the U. b) Patent. Ambassadors 2.S.C.S. State. g) Federal Civil Rights 3. d) Maritime. Federal Questions Case ± Plaintiff¶s theory based on Federal Law. ± State v. e) Admiralty. c) Copyright.Federal Court Jurisdiction 1. Statute or Regulation 69 .
Avoids Basis in favor of citizens of a particular state against others from another state 5. Diversity of Citizenship a) Definition of Diversity ± No plaintiff is a citizen of a state as any defendant in a litigation case i.Federal Court Jurisdiction continued 4. Corporations can have dual citizenship ± (1) State in which they are incorporated and (2) Principal place of business ± where there is the most assets & employees b) Historical Basis . Removal from State to Federal Court ± Removal Jurisdiction ± Defendant can remove a case from State court to Federal Court if the case could be filed by plaintiff in Federal Court initially 70 .
Advice for restructuring the transaction or plan.The Lawyer as ³Counselor´ 1. Legal risk evaluation & legal opinions 2. to reduce legal risk *Higher hourly rate due to specialization and expertise of the lawyers 71 .
The Importance of Confidences Attorney Client Privilege -Attorney cannot disclose contents of communication they have with clients when client is seeking legal advice Attorney Work Privilege -No discovery access to attorney¶s notes or files (work material) 72 .
ETHICS The Country¶s laws reflect its ethics Ethics. is a dynamic phenomena 73 . like law.
abortion during first trimester.Lawful but some would say unethical ± Slavery (historical). animal & plant cloning. stopping artificial life support for a brain dead individual 74 .
Blacks sitting in ³white only´ area in a restaurant before Civil Rights Act of 1964 (historical).Unlawful but some would say ethical examples ± Underground railroad (helped slaves to get to the North (historical). Robin Hood ± taking money from the rich and giving it to the poor. physician assisted suicide 75 .