BLAW 3430 Test One Study Guide 03 06 2015 The overall topic of this class Has to do with whether or not parties are liable for their actions Civil Law Sources of Law US Constitution o The supreme law of the land o Relatively difficult to change o All laws must be in consideration of the Constitution o Subject to US Constitution and other federal laws State Constitutions Statutes o Federal US Can be changed only be congress Ex ObamaCare Civil Rights Act Enacted by legislature Common Law Case Law and judge made law o Stare Decisis Means stand on decided cases or precedent Similar cases should be decided similarly Makes the law predictable fair and logical Jurisdiction The power to hear decide cases US District Courts Developed in England o Most of the world has laws based on codes o Civil Law v Common Law Civil law is largely based on codes Common law is based on precedent o Administrative Agencies Given responsibility to regulate an are of specialty by enacting regulations and rules EPA determines how much of a pollutant can be dispersed Ex Congress delegates agencies such as EPA SEC FDA o Executive Orders Governors Presidents have limited power to make laws o Federal questions cases o Cases in which the US is a party i e government v person state v government o Diversity of citizenship When the plaintiffs are citizens of a state or states different from the state or states of which the defendants are citizens More than 75 000 is in controversy Ex the plaintiff can choose where to sue If the plaintiff is from Oklahoma and the defendant is from Texas Diversity of citizenship is congress s attempt to reduce bias Diversity of citizenship and corporations 1 Most large corporations file for corp in Delaware 2 Most corps are headquartered in a state other than Delaware 3 If a company is incorporated in Delaware AND practices business primarily in Texas then the company is a citizen of BOTH states BLAW 3430 Test One Study Guide 03 06 2015 Adversarial System Based on the idea that the plaintiff and defendant are opponents and will do everything necessary to win o A winner and loser is decided Loser has right to appeal Courts of Appeals Appeals are based on questions of law not fact o The loser of the previous trial is called the appellant and the winner is the appellee The questions of law are put into a written argument called a brief o A copy of the brief goes to the appellee and the court of appeals The appellee files a counter argument with the court and sends a copy to the appellant Choices for Court of Appeals o Affirm uphold previous decision o Reverse previous decision and either render a new decision or remand new trial Appealing to the US Supreme Court allow Writ of Certiorari is filed if more than four of the nine Supreme Court justices o if the Supreme Court does not grant a writ of certiorari then the decision made by the Court of Appeals stands Both the appellee and appellant write briefs that are sent to the Supreme Court similar to the process done in the Court of Appeals If the trial takes place five of the nine Supreme Court justices are considered a majority in the final decision BLAW 3430 Test One Study Guide 03 06 2015 Alternative Dispute Resolution ADR Negotiation Arbitration o Can occur in any moment without a lawyer or trial o Or agreement o Made in front of arbitrators who decide the award o Benefits Can be booked to the convenience of both sides o Conducted by the American Arbitration Association AAA o The NORM for international sales and service contracts since neither side trusts the others legal system Mediation o Chosen by agreement or court order o Mediators are facilitators of negotiation o Mediators do not decide cases o 50 60 of mediations are successful o The mediator holds a joint session then separates the parties persuading each side to negotiate on different points to come to an agreement o Makes it possible for parties to continue there relationship after mediation o Mediators have more HR skills than arbitrators Administrative Law Enforces rules and regulations set by the legislative branch When an agency enforces a new rule o 1 a notice is made public o 2 there is then an opportunity to comment o 3 the new rule is published and enforced Enforcement is the executive function of the agency Judicial review is permissible o Prerequisites 1 Standing I am personally effected by this regulations 2 Has exhausted administrative remedies o Questions of law Exceeded powers Unconstitutional Improperly interpreted o Questions of facts Arbitrary and capricious BLAW 3430 Test One Study Guide 03 06 2015 Criminal Law Elements of a Crime Actus Reus wrongful act Mens Rea Criminal intent wrongful intent For cases of criminal liability without mens rea o Mental state for crime is not intended o EX selling alcohol to minors as a store clerk Strict liability o EX selling restricted chemicals to unauthorized persons Inchoate Offenses o Attempted o Person intends to commit crime o Intent and act s in furtherance beyond mere preparation crime Conspiracy o When two or more people form an agreement to commit a crime o Also an inchoate crime o Still considered an offense Misdemeanors Felonies o Punishable up to a year in a local jail o Punishable by more than a year in prison o Ex an employer could be liable if he directs participates or approves of a Vicarious Liability crime committed by an employee Laws of Parties o Accessory accomplice to a crime o Criminally liable to the same extent as the person who committed the crime Corporations o Can be guilty of a crime and punished with a fine o If crime was authorized requested commanded or performed by the board of directors of high managerial agent Constitutional Protection in a Criminal Case Presumption of innocence The state prosecutor has the burden of proof Fourth Amendment o Unreasonable search and seizure exclusionary rule Unreasonable if a conducted without warrant or b no probable cause Fifth Amendment o Due process clause federal No person should be deprived of life liberty or property without due process i e fair treatment o Double Jeopardy is prohibited o Protection from self incrimination Right to remain silent Includes not having to produce books records o Sixth Amendment Right to a speedy trial Right to an attorney Right to compel witnesses subpoena Right to be informed of accusations o Eighth Amendment No excessive bail No cruel and unusual punishment o Plea Bargain Agreement Reduced charge negotiated by