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| The right of people to be secure in their persons, houses, papers and effects against unreasonable search and seizures, shall not be violated and no warrants issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized |
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| Exceptions to Amendment 4 |
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Definition
Consensual searches
Stop and frisk searches (supported by probable cause)
Border Searches
Hot pursuit
Airport and courthouses searches |
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| you cant ask a judge about legality unless you are fighting it |
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| Three part test to determine legality of a search |
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Public necessity
efficacy of search (ease)
Intrusion (level of intrusion to person) |
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| a higher and eternal law (life liberty and property rights) |
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| those laws necessary to regulate an ordered society (road laws) |
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| House of Representatives (legislative branch) |
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Definition
2 year terms
Make laws
declare war
establish courts
over-ride veto
impeachment |
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| Senate (legislative branch) |
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Definition
6 year term 2 senators per state
Confirm supreme court justices
confirm cabinet
over-ride veto
impeachment trials |
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| President (Executive branch) |
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Definition
Electoral college
veto
appoint federal judges
executive orders
commander in chief of military
appoints cabinet
Presidential pardons |
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| Judge made law - the ruling from a case from the court of appeals and creates a precedent |
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decide facts and then apply law
must be case in controversy |
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decide if the trial courts applied correct law.
interpret the law |
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| the decisions of an appellate court is binding upon lower courts |
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| the idea that once a major decision is made, it should not be re-examined unless extraordinary circumstances exist |
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| the power of the supreme court and the inferior courts to declare and act of congress, state or local government unconstitutional and thus void, if it violates the constitution |
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9 judges
life time term
appointed by president |
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Definition
agencies that take the WILL of Congress and carries those wishes out through executive type administration
--Created by Congress who passes enabling legislation and then is signed by the president
**Part of executive branch |
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| Operation of Administrative agencies |
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Definition
Investigate
Enforce
rulemaking and regulations
adjudication (settlement other than litigation) |
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| the political arrangement in which two or more levels of government provide a variety of services to a given number of citizens in a specified area, and how the power to enforce governmental decisions is shared among these governing agencies |
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Article 1 section 8 Federa government power to "Regulate commerce... among the several states."
Supreme court has the power to regulate any activity that affects interstate commerce |
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| 10th amendment reserves the right to the state the police power, the power to enact laws for the prevention of crime and promote safety and health of people |
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| When federal and state laws overlap a specific subject matter, Federal law trumps state and local law |
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| Appellate courts - civil suit |
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Definition
people asking for money
Burden of proof - preponderance of the evidence |
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| Appellate courts - criminal |
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Definition
Prosecuting somebody for a crime - may only be initiated by some level of government
burden of proof - beyond a reasonable doubt |
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| asking the court of a civil case to order the defendant to do something |
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Case must be filed in appropriate jurisdiction
-political
- subject matter
- person or property |
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| must file case in appropriate court in limited time or automatic loss |
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| court must have jurisdiction over person (must be served with a summons and complaint) |
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| a court always has jurisdiction over property within its geographic boundaries |
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| someone that provides services (serves the summons and complaint) |
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| allows you to be sued by someone of another state if your conduct injured another person |
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| Plaintiff and defendants living in different states may move a lawsuit begun in state court to federal court if the amount in controversy exceeds $75,000 |
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| the elements of the lawsuit |
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| the rules of how the game of lawsuits are played |
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| location of trial once there is jurisdiction established |
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| the proper court is inconvenient for the litigation and the case should be held elsewhere |
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Licensing of lawyers because they hold money for clients
Also to keep fees lower |
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| the ability to represent yourself |
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| Each side tries to win, each side brings forward the points that support his view and undermine the points made by the opposing party. Each side is responsible for bringing forward information that helps it, but also must inform court of contrary legal authorities |
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Definition
licenses may be revoked for violation of rules or professional misconduct
(disembarment, suspension of practice, probation or censure) |
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| The attorney client privilege |
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Definition
all communications made to an attorney must remain confidential, unless intent to commit future crime
Privelages do not apply to the threat of future harm
Survives the death of clients
does not exist if others are present
If client admits guilt the attorney cannot then put the client on the witness stand to lie |
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Definition
| attorney client privilege extends to all works created as part of a case |
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| the invitation to the lawsuit |
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| a brief declarative statement of the allegations and request for relief |
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| the defendant must respond to the summons and complaint by filing an answer, which is point by point. Admitted or denied. |
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| included in answer in which the defendant asserts his/her own claim for relief |
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| Motion to dismiss. If you don't file your answer within the appropriate time you will automatically lose by default |
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Definition
| all documents that are filed with the court are referred to as pleadings |
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| Motion to dismiss for failure to state a claim |
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Definition
| a defendant may after being sued and answering request that the court throw out the case because the plaintiffs allegations, even if true would not entitle him to win under the law |
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| Pretrial discovery - Subpoena |
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Definition
| a demand to see, or have produced documents, objects reports medical charts etc |
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| Pretrial discovery - interrogatory |
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Definition
| a set of written questions, prepared by the opposing side which must be answered under oath and in writing |
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| Pretrial discovery - Deposition |
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Definition
opposing attorney asks you under oath face to face with a court reporter
Not allowed of defendant in criminal case
Everything said can be produced at trial |
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after discovery process is complete there may be no disputes concerning what the facts are. If this sis the case there is no need (in a civil case) for a jury and the judge can apply the law.
Available to both sides in civil case only defendant in criminal case |
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whether a case gets a jury is determined by federal and state laws. Civil cases for money damages gets a jury if the total is significant enough
Right to jury in criminal cases |
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| the process of selecting a jury |
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| an attorney can excuse a juror if they have bias or cannot otherwise be fair and impartial |
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| Attorneys may excuse 6 jurors for any reason |
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| summary of what the evidence is |
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Elicit direct testimony from witnesses
Ask non leading questions |
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| judge determines admissibility of evidence |
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Definition
a dispute concerning the presentation of evidence
Sustained - agrees
Objection - overruled |
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the opposing party can question the witness
Leading questions |
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| Motion to dismiss for failure to make a prima facie case |
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| plaintiff failed to prove a fact, or the facts proven were not enough to suffice the burden of proof |
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| lawyers have the opportunity to argue their cases before the jury |
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Garnishments - taking money from paycheck
Order of examination - deposing the defendant where his assets are
Bankruptcy |
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Affirm
Reverse
Modify
Leave some things intact while reversing others |
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| a neutral third party assists the litigants in reaching a resolution, Frequently required in contracts |
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Binding or voluntary. a mini-trial to a neutral judge whose decision is binding. Decision is more a compromise
Arbitrators are usually lawyers |
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| A knowledgeable third party assesses the case for the parties and offers an opinion |
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| non binding trial before a neutral party which issues an advisory decision which the parties use to resolve their problem |
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| similar to arbitration the referees report goes to the court and then they can decided if they want a full trial or not |
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| short trials, purely advisory verdict that is not binding |
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| The incorporation doctrine |
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| The Bill of Rights binds both the federal and state governments since Liberty and Due process are so expansive |
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| 2 part test of expressive Communication (1st amendment) |
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Definition
1. intent to communicate a particular message and whether the messsage was likely to be understood by those who view it.
2. court will then consider whether the government regulation or law was in any way related to the suppression of free speech |
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| land and everything permanently attached to it |
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| occupancy until death and then passed on |
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| permanent or for a set duration of time the ability to use land |
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| the right for the government to take your property for fair compensation |
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| if somebody were to use your land for a long time and you didn't complain about it they would eventually get a legal permanent right to continue doing this |
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Restricting certain people from living places
*cant be based on race
saying residents must be 55 is okay |
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| any property that results from intellectual, creative process |
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Definition
distinctive marks, words, designs, pictures or arrangements used by the producer of a product to allow consumers to identify and link the product with the producer
protected under Common law
must be registered with US patent office, must be distinctive
Can be registered if currently in use or intends to be used in next 6 months |
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| Federal trademark dilution act 1995 |
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Definition
1. created a federal cause of action for violation of the statute
2. regardless of whether the products competed with each other
3. eliminated the requirement that 'confusion' be demonstrated
4. must be some evidence that the infringing mark lessons the value of the famous mark
*injunctive relief = demand to stop |
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Definition
a distinctive nonfunctional feature, which distinguishes a merchant's or manufacturer's goods or services from those of another
Two basic requirements the must be met for trade dress protection:
1. must be capable of functioning as a source indicator
2. must also be nonfunctional |
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Definition
a process, product or method of operation or compilation of information used in business that is not commonly known to the public and may provide a competitive advantage
To sue over trade secrets must prove
1. a trade secret actually exists
2. the defendant acquired it though unlawful means
3. the defendant used it without the plaintiffs permission |
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Definition
protect products, processes, inventions, machines or asexaully reproducing plants
MUST be: novel, useful and non obvious
Cannot be patented: laws of nature, natural phenomenon, and abstract ideas
14 yeas for designs 20 years for inventions |
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Anti-terrorism
"A State of war is not a blank check for the president when it comes to the rights of the nations citizens"
Alliance with Breyer
Ultimate pragmatist, practical
Key in Planned Parenthood |
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Definition
Originalist - does not believe in living Constitution
Extreme Conservative
2008- majority opinion on gun ruling (overturned DC gun law) |
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Idea of workable constitution
Democrat
Alliance with O'Connor |
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Judges are products of their upbringings...The hard questions are those that pit one part of the Constitution against other parts
Believes that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary.
Rule of stare decisis/Common Law
Harvard Commencement Speech |
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| Must rule on law and not let bias stand in the way |
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1. Average Person
2. Contemporary community standards
3. work taken as a whole applies to the purient interest
4. work is offensive sexual conduct proscribed by state law
5. taken as a whole, is lacking artistic/political/scientific value |
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| Judges are like umpires. Don't make the rules but apply them |
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the exclusive legal right to reproduce, publish and sell the fixed form of expression or an original creative idea
To obtain a copy right
1. idea must be fixed
2. creative
3. original
4. must carry appropriate notice |
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