pg 89 - Bill of Rights (4th amendment)
Must have a warrant. Must have probably cause for search and seizure. Reasonable reason to believe.
Should we have this amendment?
What if an officer searches without probable cause or a warrant?
Who does this amendment help?
Discussion of criminal search and seizure in various "what-if" scenarios with questions from students who must never have had a civics lesson droned on for half an hour. This entire discussion had nothing to do with business law.
Question of corporate personhood. See http://en.wikipedia.org/wiki/Corporate_personhood_debate
Tuesday, September 29, 2009
Thursday, September 24, 2009
Class 8 - Constitutional Law (cont.)
Substitute teacher next week - Richard Karbalchka
Brief the major cases in chapter 4 for a week from Tuesday.
p 77 Katzenbach v
p80 Hughes v Oklahoma
p85 Consolidated Edison v Public
p87 Central Hudson Gas and Electric Co v
p91 Kelo v City of London, Connecticut
The non-specific definition of the Commerce Clause. Necessary and Proper clause. Allows for broad powers to Congress.
See also the Heart of Atlanta Hotel case.
See pg 79, Southern Railway Co v Arizona - AZ wanted to limit the length of a train. Court ruled that this was an impediment to interstate commerce. See other examples on pg 80.
State attorneys general are primarily involved in consumer protection.
See Hughes v Oklahoma p80. Minnows were prohibited from being shipped out of state. Was ruled as an impediment to interstate commerce.
Taxing Power
State taxes can sometimes be an impediment to interstate commerce. See cases at bottom of pg 82. Toll roads are not a violoation of the interstate commerce.
State taxes may also not impede foreign trade by taxing foreign goods.
The Bill of Rights
The Constitution only applies to Government. The bill of rights only applies to governmental violation of certain rights. Only the 13th amendment (involuntary servitude) applies to private areas.
Bill of Rights was added so the states would ratify the Constitution. States feared a strong central government (like England).
The Bill of Rights initially only applied to the federal government, not the states. First word of the first amendment: "Congress". Not state governments. Doctrine of Incorporation - see fourteenth amendment - extended the constitution and amendments to the states.
There are no absolute rights. There are some restrictions that can be imposed, if they're reasonable. You can't necessarily practice your faith in any way. Jehovah's Witnesses have brought more cases to the US Supreme Court than any other religion.
Freedom of Speech
Expression. But not absolute. Two types: business/commercial and political. In order to ban political speech, the govt must show an overwhelming governmental interest. That is very rare. Perhaps only during war with regard to military secrets. To ban commercial speech, there must be a substantial governmental interest.
Govt can regulate time, place and manner of the speech. See Consolidate Edison Co v Public
Service Commission of NY pg. 85. US Supreme Court upheld the company's right to include an inset with the bill.
Protests and demonstrations can be limited in time, place and manner. Permits can be required, but they can't be used to prevent you from speaking at all (as they did in the South).
First exam will be after Chapter 6.
Brief the major cases in chapter 4 for a week from Tuesday.
p 77 Katzenbach v
p80 Hughes v Oklahoma
p85 Consolidated Edison v Public
p87 Central Hudson Gas and Electric Co v
p91 Kelo v City of London, Connecticut
The non-specific definition of the Commerce Clause. Necessary and Proper clause. Allows for broad powers to Congress.
See also the Heart of Atlanta Hotel case.
See pg 79, Southern Railway Co v Arizona - AZ wanted to limit the length of a train. Court ruled that this was an impediment to interstate commerce. See other examples on pg 80.
State attorneys general are primarily involved in consumer protection.
See Hughes v Oklahoma p80. Minnows were prohibited from being shipped out of state. Was ruled as an impediment to interstate commerce.
Taxing Power
State taxes can sometimes be an impediment to interstate commerce. See cases at bottom of pg 82. Toll roads are not a violoation of the interstate commerce.
State taxes may also not impede foreign trade by taxing foreign goods.
The Bill of Rights
The Constitution only applies to Government. The bill of rights only applies to governmental violation of certain rights. Only the 13th amendment (involuntary servitude) applies to private areas.
Bill of Rights was added so the states would ratify the Constitution. States feared a strong central government (like England).
The Bill of Rights initially only applied to the federal government, not the states. First word of the first amendment: "Congress". Not state governments. Doctrine of Incorporation - see fourteenth amendment - extended the constitution and amendments to the states.
There are no absolute rights. There are some restrictions that can be imposed, if they're reasonable. You can't necessarily practice your faith in any way. Jehovah's Witnesses have brought more cases to the US Supreme Court than any other religion.
Freedom of Speech
Expression. But not absolute. Two types: business/commercial and political. In order to ban political speech, the govt must show an overwhelming governmental interest. That is very rare. Perhaps only during war with regard to military secrets. To ban commercial speech, there must be a substantial governmental interest.
Govt can regulate time, place and manner of the speech. See Consolidate Edison Co v Public
Service Commission of NY pg. 85. US Supreme Court upheld the company's right to include an inset with the bill.
Protests and demonstrations can be limited in time, place and manner. Permits can be required, but they can't be used to prevent you from speaking at all (as they did in the South).
First exam will be after Chapter 6.
Tuesday, September 22, 2009
Class 7 - Constitutional Law
Review: Trial process, importance of discovery. You need to be aware of the legal process because inevitably you'll be involved in it as part of business.
Damage awards. Remedies: money or enforcement of a contract. Punitive damages - for punishment of the wrongdoer. Intentional torts or gross negligence. Equitable remedies - no monetary damages, rather orders to do something or to refrain from something, i.e. injunctive relief. E.g. divorce. Courts of equity do not allow for jury trials. Specific performance - perform the contract. Employment contracts cannot force someone to work, it's involuntary servitude. Only in the military or peniteniary. Only award damages if there are special circumstances, e.g. attorney fees, cost to find a new car (if contract to sell a car was broken).
specific performance - land, art painting
Reminder: trial court decisions are not published. Trial courts are not binding on other courts. Appellate courts hear arguments of law, no witnesses.
Arbitration - will be covered when we talk about administrative law (govt agencies).
Constitutional Law (Chapter 4)
A brilliant document. It has lasted so long, because it is brief and non-specific. Not every aspect is defined. Open for interpretation. The Supreme Court is the final word on interpretation and on deciding whether lower court decisions are valid and whether laws passed by Congress are constitutional.
See Section 8 - the Commerce Clause
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
Refers to interstate commerce. Commerce = buying and selling anything.
Necessary & Proper Clause - gives the congress power to do whatever is "necessary and proper" to execute the rules in the constitution.
McColloch v Maryland
Supreme court decided that Congress needed a national bank in order to regulate interstate commerce. Also, if it's not excluded, it's included.
Established federal supremacy - federal laws take supremacy over state laws.
Wickard v Filburn
Farmer produced 239 bushels more than he was allowed. Even though his effects were trivial, Congress still has the right to regulate it, because if every farmer did it, it would have an impact on interstate commerce.
Katzenbach v McClung
(Aside: Protests at the building of Winston Towers for fear of them becoming CHA housing)
Johnson got civil rights bills passed.
Taken by attorney general straight to the Supreme Court.
The majority of their food product had come from other states. Therefore, this is a case of interstate commerce. Congress has the power to regulate such interstate commerce.
Briefing the case:
Name, court that decided it, when, facts, statement of the issue and the ruling.
See Katzenbach v Heart of Atlanta Motel - visitors were from out of state.
Lester Maddox - threatened blacks who came in, but was later elected governor.
Damage awards. Remedies: money or enforcement of a contract. Punitive damages - for punishment of the wrongdoer. Intentional torts or gross negligence. Equitable remedies - no monetary damages, rather orders to do something or to refrain from something, i.e. injunctive relief. E.g. divorce. Courts of equity do not allow for jury trials. Specific performance - perform the contract. Employment contracts cannot force someone to work, it's involuntary servitude. Only in the military or peniteniary. Only award damages if there are special circumstances, e.g. attorney fees, cost to find a new car (if contract to sell a car was broken).
specific performance - land, art painting
Reminder: trial court decisions are not published. Trial courts are not binding on other courts. Appellate courts hear arguments of law, no witnesses.
Arbitration - will be covered when we talk about administrative law (govt agencies).
Constitutional Law (Chapter 4)
A brilliant document. It has lasted so long, because it is brief and non-specific. Not every aspect is defined. Open for interpretation. The Supreme Court is the final word on interpretation and on deciding whether lower court decisions are valid and whether laws passed by Congress are constitutional.
See Section 8 - the Commerce Clause
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
Refers to interstate commerce. Commerce = buying and selling anything.
Necessary & Proper Clause - gives the congress power to do whatever is "necessary and proper" to execute the rules in the constitution.
McColloch v Maryland
Supreme court decided that Congress needed a national bank in order to regulate interstate commerce. Also, if it's not excluded, it's included.
Established federal supremacy - federal laws take supremacy over state laws.
Wickard v Filburn
Farmer produced 239 bushels more than he was allowed. Even though his effects were trivial, Congress still has the right to regulate it, because if every farmer did it, it would have an impact on interstate commerce.
Katzenbach v McClung
(Aside: Protests at the building of Winston Towers for fear of them becoming CHA housing)
Johnson got civil rights bills passed.
Taken by attorney general straight to the Supreme Court.
The majority of their food product had come from other states. Therefore, this is a case of interstate commerce. Congress has the power to regulate such interstate commerce.
Briefing the case:
Name, court that decided it, when, facts, statement of the issue and the ruling.
See Katzenbach v Heart of Atlanta Motel - visitors were from out of state.
Lester Maddox - threatened blacks who came in, but was later elected governor.
Thursday, September 17, 2009
Class 6 - Discovery and Trial Procedure
How does a case proceed?
Pleadings Stage
A complaint is filed in every kind of case to initiate the pleadings stage. No surprise trials. The complaint outlines the facts and the claim of the plaintiff. A criminal complaint is filed in criminal cases.
Defendent then files a response, usually denying each and every allegation. Sometimes there's a counterclaim, claiming that it was the original plaintiff who caused the damage.
Discovery Stage
This is the most important part for us. This stage prevents trial by ambush. Both sides know everything that each side has. Everything is out in the open.
In a civil case, opposition serves notice of interrogatories. These are questions that must be answered under oath. Then a summons is sent for the purpose of a discovery deposition. Usually in a law office in the presence of a pretrial judge and a court reporter.
You must comply with discovery. Otherwise, you could automatically lose the case. In criminal cases, opposing witnesses are not required to talk to the other side, but they must in civil cases.
No surprise witnesses. That's only on TV. The only exception is a rebuttal witness - when the defendent mentions someone else, that person may be brought as a rebuttal witness.
See Wauchop v Domino's Pizza.
Tom Monaghan refused to appear at a deposition.
(Aside: Monaghan at Montefiori Estate in Lemont. BMW logo - Red Baron von Rickthoven.)
Court ruled that he was just trying to put off the plaintiff and had no real reason not to give the deposition.
Vicarious liability - if you're an employee and acting within the scope of your employment and you negligently cause harm, both you and the employer will be held responsible.
Expert Witnesses
See Cooper Tire & Rubber v Mendez
The expert witness had a theory that was not generally accepted in the scientific community.
You first must qualify an expert witness as an expert. Vanity publishing does not qualify.
Summary Judgment
After discovery, if there are no genuine issues and everyone agrees on the facts, and one side believes that there's no basis in law for the other side, they can ask for a summary judgement.
At the close of a case, the jury gets the case and comes back with a verdict. The judge can change the verdict notwithstanding the jury's determination. But the judge can't change an innocent verdict to guilty in a criminal case.
Juries usually need to be unanimous, but in some states only 10/12 are required. If not unanimous, it's a mistrial and must retry.
Remedy
Money - compensatory damages to put you back in the position you were in before you were damaged.
Punitive damages - punishment of the wrongdoer. Usually only for intentional and egregious behavior. Not usual in auto accidents, unless there's gross negligence, like going 100 mph.
E.g Ford Pinto. Design defect in gas tank. Ford knew about the problem, but didn't do a recall. It was in the company records. Ford had to pay punitive damages.
Nominal damages - for cases "on principle". Award of just $1 is common.
Specific performance - court orders you to perform some action. Common in contract disputes. Courts can't impose "involuntary servitude" in employment law to make one person work for another.
Next week: read ch 3 and 4
Pleadings Stage
A complaint is filed in every kind of case to initiate the pleadings stage. No surprise trials. The complaint outlines the facts and the claim of the plaintiff. A criminal complaint is filed in criminal cases.
Defendent then files a response, usually denying each and every allegation. Sometimes there's a counterclaim, claiming that it was the original plaintiff who caused the damage.
Discovery Stage
This is the most important part for us. This stage prevents trial by ambush. Both sides know everything that each side has. Everything is out in the open.
In a civil case, opposition serves notice of interrogatories. These are questions that must be answered under oath. Then a summons is sent for the purpose of a discovery deposition. Usually in a law office in the presence of a pretrial judge and a court reporter.
You must comply with discovery. Otherwise, you could automatically lose the case. In criminal cases, opposing witnesses are not required to talk to the other side, but they must in civil cases.
No surprise witnesses. That's only on TV. The only exception is a rebuttal witness - when the defendent mentions someone else, that person may be brought as a rebuttal witness.
See Wauchop v Domino's Pizza.
Tom Monaghan refused to appear at a deposition.
(Aside: Monaghan at Montefiori Estate in Lemont. BMW logo - Red Baron von Rickthoven.)
Court ruled that he was just trying to put off the plaintiff and had no real reason not to give the deposition.
Vicarious liability - if you're an employee and acting within the scope of your employment and you negligently cause harm, both you and the employer will be held responsible.
Expert Witnesses
See Cooper Tire & Rubber v Mendez
The expert witness had a theory that was not generally accepted in the scientific community.
You first must qualify an expert witness as an expert. Vanity publishing does not qualify.
Summary Judgment
After discovery, if there are no genuine issues and everyone agrees on the facts, and one side believes that there's no basis in law for the other side, they can ask for a summary judgement.
At the close of a case, the jury gets the case and comes back with a verdict. The judge can change the verdict notwithstanding the jury's determination. But the judge can't change an innocent verdict to guilty in a criminal case.
Juries usually need to be unanimous, but in some states only 10/12 are required. If not unanimous, it's a mistrial and must retry.
Remedy
Money - compensatory damages to put you back in the position you were in before you were damaged.
Punitive damages - punishment of the wrongdoer. Usually only for intentional and egregious behavior. Not usual in auto accidents, unless there's gross negligence, like going 100 mph.
E.g Ford Pinto. Design defect in gas tank. Ford knew about the problem, but didn't do a recall. It was in the company records. Ford had to pay punitive damages.
Nominal damages - for cases "on principle". Award of just $1 is common.
Specific performance - court orders you to perform some action. Common in contract disputes. Courts can't impose "involuntary servitude" in employment law to make one person work for another.
Next week: read ch 3 and 4
Tuesday, September 15, 2009
Class 5 - Jurisdiction
Jurisdiction
Gives the court power and authority to hear a case. Two types:
Jurisdiction over the subject matter
Jurisdiction over the person
This stems from the right to due process. You can't be held responsible for something that you don't know you're being held responsible. Once you're served with process, you have 28 or 30 days to respond, otherwise you're automatically held responsible.
Long-arm jurisdiciton: the ability of a court to have jurisdiction over an out-of-state defendent. It applies in any of these three situations:
1. company was incoporated in the state
2. company has its principle offices or factory in the state
3. compay was doing business in the state (not necessarily a lot of business, just minimal - enough that the company could reasonably foresee that someone in the state may be harmed)
See case of Killum v Oregon State University
See case of Blimka v My Web Wholesalers (page 36) - even having a web site is considered doing business in the state.
Case of woman in Arizona who read an article about a medical procedure available at Ohio State University. She brought a medical malpractice suit. The advertisement was enough to establish "doing business" in Arizona.
Case in Kansas City, Missouri in which a doctor who had a procedure for weight loss and discussed it on TV on a panel discussion. A woman from KC, Kansas brought a medical malpractice suit. Here, there was no soliciting or advertising, so there was no juridiction for the Kansas courts.
Applying the appropriate state law in Federal Court (pg 40)
In cases of diversity of citizenship. There are no federal tort laws. See case of Erie Railroad v Tompkins. Filed in federal court.
Diversity of citizenship: If you sue someone from a different state, the defendent can request that the case be "removed" to federal court (if the amount in question is at least $75,000). Federal judges are not biased towards citizens of one state. They're appointed for life, not voted or retained, like state judges.
See The Scottsboro Boys. African-american boys in a freight train with white prostitutes. Tried for rape, which was a capital offense in those days. Judge dismissed the case and was then voted out of office. That's political pressure.
See also Mississippi Burning.
In Tompkins, Tompkins wanted NY law. Defendents wanted Penn law because it doesn't require them to pay for damages to trespassers. In Illinois, you have a duty of care to trespassers, but only if you have reason to believe that they're there.
Attractive nuisance: Tank at Devon and Clark.
Applying the appropriate state law in state court
See case of Hughes v. Wal-Mart (hand-out)
Case of gas can purchased in Monroe, Louisiana. Daughter was injured. Filed suit against Wal-Mart, in Arkansas where they are headquartered. Arkansas law holds a distributor liable responsible for defective products. Under Lousiana law, only the manufacturer is liable.
Since everything happened in Louisiana (purchase, damage, medical treatment), the federal court applied the law of Louisiana.
See Miller v Pilgrim's Pride Corp (pg 42). Texas law was applied. Why?
Change of venue. In the interest of justice or fairness, defendant can request a move. Ex: Richard Speck trial was moved from Chicago to Peoria. Drew Peterson, John Wayne Gacy.
Read the Domino's case and Chapter 3. Discover, trial process.
Gives the court power and authority to hear a case. Two types:
Jurisdiction over the subject matter
Jurisdiction over the person
This stems from the right to due process. You can't be held responsible for something that you don't know you're being held responsible. Once you're served with process, you have 28 or 30 days to respond, otherwise you're automatically held responsible.
Long-arm jurisdiciton: the ability of a court to have jurisdiction over an out-of-state defendent. It applies in any of these three situations:
1. company was incoporated in the state
2. company has its principle offices or factory in the state
3. compay was doing business in the state (not necessarily a lot of business, just minimal - enough that the company could reasonably foresee that someone in the state may be harmed)
See case of Killum v Oregon State University
See case of Blimka v My Web Wholesalers (page 36) - even having a web site is considered doing business in the state.
Case of woman in Arizona who read an article about a medical procedure available at Ohio State University. She brought a medical malpractice suit. The advertisement was enough to establish "doing business" in Arizona.
Case in Kansas City, Missouri in which a doctor who had a procedure for weight loss and discussed it on TV on a panel discussion. A woman from KC, Kansas brought a medical malpractice suit. Here, there was no soliciting or advertising, so there was no juridiction for the Kansas courts.
Applying the appropriate state law in Federal Court (pg 40)
In cases of diversity of citizenship. There are no federal tort laws. See case of Erie Railroad v Tompkins. Filed in federal court.
Diversity of citizenship: If you sue someone from a different state, the defendent can request that the case be "removed" to federal court (if the amount in question is at least $75,000). Federal judges are not biased towards citizens of one state. They're appointed for life, not voted or retained, like state judges.
See The Scottsboro Boys. African-american boys in a freight train with white prostitutes. Tried for rape, which was a capital offense in those days. Judge dismissed the case and was then voted out of office. That's political pressure.
See also Mississippi Burning.
In Tompkins, Tompkins wanted NY law. Defendents wanted Penn law because it doesn't require them to pay for damages to trespassers. In Illinois, you have a duty of care to trespassers, but only if you have reason to believe that they're there.
Attractive nuisance: Tank at Devon and Clark.
Applying the appropriate state law in state court
See case of Hughes v. Wal-Mart (hand-out)
Case of gas can purchased in Monroe, Louisiana. Daughter was injured. Filed suit against Wal-Mart, in Arkansas where they are headquartered. Arkansas law holds a distributor liable responsible for defective products. Under Lousiana law, only the manufacturer is liable.
Since everything happened in Louisiana (purchase, damage, medical treatment), the federal court applied the law of Louisiana.
See Miller v Pilgrim's Pride Corp (pg 42). Texas law was applied. Why?
Change of venue. In the interest of justice or fairness, defendant can request a move. Ex: Richard Speck trial was moved from Chicago to Peoria. Drew Peterson, John Wayne Gacy.
Read the Domino's case and Chapter 3. Discover, trial process.
Thursday, September 10, 2009
Class 4 - The Court System and Jurisdiction
Moral and ethical implications of the law
It's really hard to find any law that doesn't have some ethical basis, even speeding laws. But the govt runs into problems when they try to "legislate morality."
Note: There will be a substitute teacher on the week of the 28th (i.e., Sept 29 and Oct 1).
The Court System
Two ways to become a judge in Illinois. Full circuit court judges and associate judges. Full cc judges can be appointed by the Supreme court to fill a vacancy but then you must run. Bar associations investigate candidates and publish their findings. Judges may run county-wide or by district subcircuit. Democrats usually run county-wide or in a Chicago subcircuit. Republicans usually run in a suburban subcircuit. Associate judges are not elected, they get screened by bar associations. 6 year terms. Primary and then Nov election. After 6 years, retention ballot which require 60%.
Federal court judges are appointed by the President for all levels (trial, appeals, supreme) and get confirmed by the Senate. Can only be removed by impeachment.
Merit selection of judges has been suggested in Illinois, but it never got anywhere.
Lifetime appointments are immune from political bias.
US Supreme Court. 9 justices. Most cases are not heard. You need to apply to be heard and most don't make it.
The number of federal courts under the supreme court is subject to be changed. It's not specified by the constitution. Just as many as needed.
Death penalty cases in Illinois are appealed directly to the Illinois Supreme Court.
Jurisdiction
Huge and important subject. Jurisdiction is authority, power.
There are two categories of jurisdiction:
over subject matter
over the person
Jurisdiction over subject matter is least challenged.
Prior to 1962, courts in Cook County were divided by jurisdiction over subject matter - criminal, divorce, probate, etc. In 1962, they created the Circuit Court of Cook County with different divisions. You only need to file in the CCofCC and it will be transfered to the correct division.
Federal court cases are limited to US statutes and constitution. Not personal injury or divorce, etc. Bank robbery is a federal crime and a state crime. Even if you're found not guilty in federal court, you could be tried in state court.
Jurisdiction over the person
Court can't enter judgement against you unless they have jurisdiction over a person.
A complaint is filed in the CCofCC (with fee). Clerk takes it to sheriff who serves the summons. If the sheriff can't serve, the court will only have jurisdiction over the subject matter (e.g. divorce) and assets, but not the person (alimony/maintenance).
Jurisdiction over a person is only obtained when they are notified of what they are being sued for, either in person or sometimes with certified mail.
Out of State Defendants
E.g. Personal injury by an individual or corporation from another state (NY). What do you do? Have them served in NY. If he doesn't show up, you get a default judgement. To get your money, you need to"domesticate the judgement" by taking it to NY. Full faith and credit must be given to laws and rulings between states.
Business cases require fulfillment of the "long arm" requirements in order to be tried in a state through personal jurisdiction over the corporation:
1. The state of incorporation
2. The state of the corporate headquarters
3. The corporation does business in the state (even just advertising). This is the most common.
See case of Oregon v Lillard. Ruling: OSU's coming to California to recruit a basketball player constituted "doing busines" in the state.
It's really hard to find any law that doesn't have some ethical basis, even speeding laws. But the govt runs into problems when they try to "legislate morality."
Note: There will be a substitute teacher on the week of the 28th (i.e., Sept 29 and Oct 1).
The Court System
Two ways to become a judge in Illinois. Full circuit court judges and associate judges. Full cc judges can be appointed by the Supreme court to fill a vacancy but then you must run. Bar associations investigate candidates and publish their findings. Judges may run county-wide or by district subcircuit. Democrats usually run county-wide or in a Chicago subcircuit. Republicans usually run in a suburban subcircuit. Associate judges are not elected, they get screened by bar associations. 6 year terms. Primary and then Nov election. After 6 years, retention ballot which require 60%.
Federal court judges are appointed by the President for all levels (trial, appeals, supreme) and get confirmed by the Senate. Can only be removed by impeachment.
Merit selection of judges has been suggested in Illinois, but it never got anywhere.
Lifetime appointments are immune from political bias.
US Supreme Court. 9 justices. Most cases are not heard. You need to apply to be heard and most don't make it.
The number of federal courts under the supreme court is subject to be changed. It's not specified by the constitution. Just as many as needed.
Death penalty cases in Illinois are appealed directly to the Illinois Supreme Court.
Jurisdiction
Huge and important subject. Jurisdiction is authority, power.
There are two categories of jurisdiction:
over subject matter
over the person
Jurisdiction over subject matter is least challenged.
Prior to 1962, courts in Cook County were divided by jurisdiction over subject matter - criminal, divorce, probate, etc. In 1962, they created the Circuit Court of Cook County with different divisions. You only need to file in the CCofCC and it will be transfered to the correct division.
Federal court cases are limited to US statutes and constitution. Not personal injury or divorce, etc. Bank robbery is a federal crime and a state crime. Even if you're found not guilty in federal court, you could be tried in state court.
Jurisdiction over the person
Court can't enter judgement against you unless they have jurisdiction over a person.
A complaint is filed in the CCofCC (with fee). Clerk takes it to sheriff who serves the summons. If the sheriff can't serve, the court will only have jurisdiction over the subject matter (e.g. divorce) and assets, but not the person (alimony/maintenance).
Jurisdiction over a person is only obtained when they are notified of what they are being sued for, either in person or sometimes with certified mail.
Out of State Defendants
E.g. Personal injury by an individual or corporation from another state (NY). What do you do? Have them served in NY. If he doesn't show up, you get a default judgement. To get your money, you need to"domesticate the judgement" by taking it to NY. Full faith and credit must be given to laws and rulings between states.
Business cases require fulfillment of the "long arm" requirements in order to be tried in a state through personal jurisdiction over the corporation:
1. The state of incorporation
2. The state of the corporate headquarters
3. The corporation does business in the state (even just advertising). This is the most common.
See case of Oregon v Lillard. Ruling: OSU's coming to California to recruit a basketball player constituted "doing busines" in the state.
Tuesday, September 8, 2009
Class 3 - Procedural Law, Morality and Ethics
Classification of laws (continued)
Importance of Substantive vs. Procedural law
Procedure is very important. For example, there are time constraints - statute of limitation. Usually 1-2 years for torts. If not filed during that time, you can't file any more. This is a common area of legal malpractice. This is also why lawyers are frequently quick to file. Statute of limitations apply to both civil and criminal cases. There is no SofL for murder or arson or treason. Oral contract 5 years, written contract 10 years. 120-160 days from arrest to bring the person to trial. If the defendent causes the delay, through motions or other factors, that stops the clock.
The suit must be filed properly.
Civil case: either side can file an appeal.
Criminal case: once found not-guilty, the government cannot appeal
Ethics and Business
Morality and the Law. Much of our law is based on a moral/religious basis. Some laws, such as jaywalking, are not. See Soldano v O'Daniels. Negligence: there was a duty of care, carelessness, carelessness caused the injury, it was foreseeable. You only owe a duty of care if you're engaged in certain actions which make you responsible for acting. Otherwise, even though you may be morally obligated to act, you're not legally responsible.
Summary judgement: No dispute of facts. The law is clear. Judge decides without a trial.
Soldano v O'Daniels - perhaps the prevention of the patron from using the phone was considered an "action".
See US v Stanley in book pg 19. Army sergeant given LSD without his knowledge. Stanley claimed that the Army had a duty of care and should have informed him.
Laws based on morality: Adultery is a crime in some cases. Bigamy is a class 4 felony. Utah had to criminalize polygamy before they were allowed into the union.
There are no (or at least very few) absolute freedoms. We'll talk more about this when we cover the first amendment.
Selection of judges. See pages 25-26.
Importance of Substantive vs. Procedural law
Procedure is very important. For example, there are time constraints - statute of limitation. Usually 1-2 years for torts. If not filed during that time, you can't file any more. This is a common area of legal malpractice. This is also why lawyers are frequently quick to file. Statute of limitations apply to both civil and criminal cases. There is no SofL for murder or arson or treason. Oral contract 5 years, written contract 10 years. 120-160 days from arrest to bring the person to trial. If the defendent causes the delay, through motions or other factors, that stops the clock.
The suit must be filed properly.
Civil case: either side can file an appeal.
Criminal case: once found not-guilty, the government cannot appeal
Ethics and Business
Morality and the Law. Much of our law is based on a moral/religious basis. Some laws, such as jaywalking, are not. See Soldano v O'Daniels. Negligence: there was a duty of care, carelessness, carelessness caused the injury, it was foreseeable. You only owe a duty of care if you're engaged in certain actions which make you responsible for acting. Otherwise, even though you may be morally obligated to act, you're not legally responsible.
Summary judgement: No dispute of facts. The law is clear. Judge decides without a trial.
Soldano v O'Daniels - perhaps the prevention of the patron from using the phone was considered an "action".
See US v Stanley in book pg 19. Army sergeant given LSD without his knowledge. Stanley claimed that the Army had a duty of care and should have informed him.
Laws based on morality: Adultery is a crime in some cases. Bigamy is a class 4 felony. Utah had to criminalize polygamy before they were allowed into the union.
There are no (or at least very few) absolute freedoms. We'll talk more about this when we cover the first amendment.
Selection of judges. See pages 25-26.
Chapter 1 Notes
Definition of law:
A collection of rules or principles intended to limit and direct human behavior.
Roles of law:
Influence behavior – social stability
Resolve disputes – courts provide a consistent mechanism
Maintain social values – honesty and integrity through contract law
Provide a method for social change
Sources of law:
Constitutions – US and State
Legislatures – US and State – statutory law
Administrative Agencies – regulations
Judicial decisions – common law
Classifications of law:
Public law
Private law
Criminal law
Civil law
Substantive law
Procedural law
Ethics
Public image of business has declined.
Possible explanation: ethical standards have fallen
Legislation to address issues of corporate dishonesty has mushroomed
Unethical behavior can arise from bad decisions in business or from the environment created by government – campaign contributions and direct bribes.
Cases:
United States v Stanley – LSD given to soldier. Scalia: soldier can’t sue. Brennan: soldier can sue individuals because they must consider their actions individually.
Davis v Baugh Industrial Contractors – employee killed while inspecting a contractors leaky pipe. Chambers: Completion and Acceptance Doctrine is outmoded, incorrect and harmful. Owner should not assume all responsibility once he inspects and accepts the work. Today, things are too complex and owners are incapable of recognizing substandard performance.
A collection of rules or principles intended to limit and direct human behavior.
Roles of law:
Influence behavior – social stability
Resolve disputes – courts provide a consistent mechanism
Maintain social values – honesty and integrity through contract law
Provide a method for social change
Sources of law:
Constitutions – US and State
Legislatures – US and State – statutory law
Administrative Agencies – regulations
Judicial decisions – common law
Classifications of law:
Public law
Private law
Criminal law
Civil law
Substantive law
Procedural law
Ethics
Public image of business has declined.
Possible explanation: ethical standards have fallen
Legislation to address issues of corporate dishonesty has mushroomed
Unethical behavior can arise from bad decisions in business or from the environment created by government – campaign contributions and direct bribes.
Cases:
United States v Stanley – LSD given to soldier. Scalia: soldier can’t sue. Brennan: soldier can sue individuals because they must consider their actions individually.
Davis v Baugh Industrial Contractors – employee killed while inspecting a contractors leaky pipe. Chambers: Completion and Acceptance Doctrine is outmoded, incorrect and harmful. Owner should not assume all responsibility once he inspects and accepts the work. Today, things are too complex and owners are incapable of recognizing substandard performance.
Thursday, September 3, 2009
Class 2 - Sources and Classifications of Law
Goal - retain knowledge and be able to use it.
Be familiar with sources of law.
US constitution is the "law of the land". States have their own constitution and must comply with US constitution.
Must understand history of the period when it was created.
Legislative actions and statutes - statutory law. Ordinances are passed by city councils or the county board. State laws. Federal legislation. All must comply with US constitution. If not, it's void. US Supreme Court decides whether or not it complies.
Agencies and regulations. E.g. OSHA, EPA, FAA, FCC, DEA, FDA. They are an administrative agent of the legislatures. Their rules, called regulations, are law and are just as powerful.
Common law - a series of case law decisions from England. One state, Louisiana, does not follow common law. They follow the Napoleanic Code. Definitions have been the same for many years. (E.g. battery)
3 tiered system - trial, appellate, supreme courts. Trial court decisions are not published. Appellate and Supreme decisions are and they're binding on other courts. This leads to consistency and gives expectations. Illinois Supreme decisions are binding in Illinois, but not other states. Lower courts cannot overturn higher courts.
Plessy v Ferguson - late 1800s. African-American passenger in "whites only" train car. 14th amendment required equal treatment. Supreme court established "separate but equal" policy. In 1954, Brown v Board of Education, Supreme court said that separate is inheritly not equal, overturning the previous decision.
Classification of law - public vs private law. Public = relationship between people and the government. Private = relationship between individuals.
Our court system is very accessible. The contingent fee system allows people without a lot of money to be able to pursue law suits.
Eg. Battery - crime, tort. The crime is against the people. It's public.
Criminal - requires unanimous jury and conviction beyond a reasonable doubt.
Civil - burden is on a perponderance of evidence. In Illinois, jury can be only 6 people, but must be unanimous. No jury trials in domestic relations court (divorce) or noisy neighbor court.
Substantive law - the main part of the law, definition of the crimes.
Procedureal law - the rules and processes of being charged and tried for the breaking the law. If the rules are not followed, you may be found not guilty just as if you had been found not guilty in a regular trial.
Fines and fees are statuory and must be followed. Judges can't make them up.
Be familiar with sources of law.
US constitution is the "law of the land". States have their own constitution and must comply with US constitution.
Must understand history of the period when it was created.
Legislative actions and statutes - statutory law. Ordinances are passed by city councils or the county board. State laws. Federal legislation. All must comply with US constitution. If not, it's void. US Supreme Court decides whether or not it complies.
Agencies and regulations. E.g. OSHA, EPA, FAA, FCC, DEA, FDA. They are an administrative agent of the legislatures. Their rules, called regulations, are law and are just as powerful.
Common law - a series of case law decisions from England. One state, Louisiana, does not follow common law. They follow the Napoleanic Code. Definitions have been the same for many years. (E.g. battery)
3 tiered system - trial, appellate, supreme courts. Trial court decisions are not published. Appellate and Supreme decisions are and they're binding on other courts. This leads to consistency and gives expectations. Illinois Supreme decisions are binding in Illinois, but not other states. Lower courts cannot overturn higher courts.
Plessy v Ferguson - late 1800s. African-American passenger in "whites only" train car. 14th amendment required equal treatment. Supreme court established "separate but equal" policy. In 1954, Brown v Board of Education, Supreme court said that separate is inheritly not equal, overturning the previous decision.
Classification of law - public vs private law. Public = relationship between people and the government. Private = relationship between individuals.
Our court system is very accessible. The contingent fee system allows people without a lot of money to be able to pursue law suits.
Eg. Battery - crime, tort. The crime is against the people. It's public.
Criminal - requires unanimous jury and conviction beyond a reasonable doubt.
Civil - burden is on a perponderance of evidence. In Illinois, jury can be only 6 people, but must be unanimous. No jury trials in domestic relations court (divorce) or noisy neighbor court.
Substantive law - the main part of the law, definition of the crimes.
Procedureal law - the rules and processes of being charged and tried for the breaking the law. If the rules are not followed, you may be found not guilty just as if you had been found not guilty in a regular trial.
Fines and fees are statuory and must be followed. Judges can't make them up.
Class 1 - Overview
Instructor:
Michael Gerber
"Permanent part-time"
Day job: Assistant State’s Attorney
Schooling: Rogers – Mather – Roosevelt – De Paul Law
Uses the email address at state’s attorney’s office.
Office is in the “A” wing - the new business and management building.
Textbook:
The Legal Environment of Business by Meiners, Ringleb and Edwards
Must have 10th edition of the textbook.
Additional cases from outside the textbook will be distributed (about 12).
Grading:
Midterm and final (not 3 exams as in the syllabus) which makes up most of the grade. Essay exams. You will be given hypothetical cases. You need to be able to discuss a case on paper. Given broad general fact situations, you must identify the issues and apply the law.
Exams count for 85% of grade. Rest of grade is attendance, discussion, participation. Exams are based exclusive on what’s discussed in class, not the entire book. Approximately 7 questions. Not tricky. Proper English is not as important as your analysis.
There will be a complete review in class before the exam.
Key topics:
Understand certain areas that you will need to know. Certain chapters are key – torts, contracts, product liability, constitutional law, interstate commerce, discrimination.
He will review the cases and issues in an historical context.
1st amendment – political and commercial speech
Court system, jurisdiction
Homework:
We will have to prepare briefs of certain cases, as assigned. Can be handwritten. No briefs until chapter 4. They’re not strictly graded, but he’ll let you know if you’re not on the right track. Not necessarily as detailed as the syllabus indicates. He’ll let us know what he wants from each brief.
For next class:
Read chapter 1 for next class (Thursday) and bring the book to every class.
Michael Gerber
"Permanent part-time"
Day job: Assistant State’s Attorney
Schooling: Rogers – Mather – Roosevelt – De Paul Law
Uses the email address at state’s attorney’s office.
Office is in the “A” wing - the new business and management building.
Textbook:
The Legal Environment of Business by Meiners, Ringleb and Edwards
Must have 10th edition of the textbook.
Additional cases from outside the textbook will be distributed (about 12).
Grading:
Midterm and final (not 3 exams as in the syllabus) which makes up most of the grade. Essay exams. You will be given hypothetical cases. You need to be able to discuss a case on paper. Given broad general fact situations, you must identify the issues and apply the law.
Exams count for 85% of grade. Rest of grade is attendance, discussion, participation. Exams are based exclusive on what’s discussed in class, not the entire book. Approximately 7 questions. Not tricky. Proper English is not as important as your analysis.
There will be a complete review in class before the exam.
Key topics:
Understand certain areas that you will need to know. Certain chapters are key – torts, contracts, product liability, constitutional law, interstate commerce, discrimination.
He will review the cases and issues in an historical context.
1st amendment – political and commercial speech
Court system, jurisdiction
Homework:
We will have to prepare briefs of certain cases, as assigned. Can be handwritten. No briefs until chapter 4. They’re not strictly graded, but he’ll let you know if you’re not on the right track. Not necessarily as detailed as the syllabus indicates. He’ll let us know what he wants from each brief.
For next class:
Read chapter 1 for next class (Thursday) and bring the book to every class.
Subscribe to:
Comments (Atom)
