Law Exam
8/30/16
Case brief on 9/6/2016: topic freedom of speech and freedom of press.
Case brief
-judges get their power: article 3
Brief the case of mulberry vs Madison
Issue: Facts does the court have the right to rule over this case
Rule: Article 3 sated they are there for appeal reason and not trial
Application: No they can’t hear this trial case
Conclusion: Asked to get out of the court room.
-this changed the process of on the way the supreme court is able to use
Marbury v Madison
The Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution. Legal priciple of judicial review came from this case. Any dispute can be taken directly to the Supreme Court, gave new jurisdiction to the Supreme Court.
Judicial review - ability of the court system to look at a law and say whether its valid or not.
Who sit on the 8 present supreme court now-
What are the names of the justices on the current Supreme Court:
Ruth Bader Ginsburg
John Roberts Jr (Chief Justice)
Sonia Sotomayor
Clarence Thomas
Anthony Kennedy
Samuel Alito
Elena Kagan
Stephen Breyer
*Scalia died in February and was BFFs with Ginsburg
Bill of rights
Basics:
-difference between a tort and a crime
-civil side tort sued you have the right to person seeking something from a person
-criminal system will file charges and retribution against a wrong doing to society
-most commonly sued is negligence
-negligence has the same elements
Duty: there are duties in many ways parent/child
strict liability: something is so dangerous that if something happens you are liable
Breached: you violated the duty
Causation: direct ie you did it and you didn’t use care
-negligence per say: if you violate a law or policy you are presumed negligent.
-Stare decisis- laws and interoperation of laws are created from ?????
Criminal law
Common understanding
-Assault vs Battery
Assault: placing someone in the immediate harmful or threat
Battery: unlawful touching of another
-Robbery vs burglary
Robbery: crime against person unlawful taking from another with fear or intimidation.
Burglary: crime against property, unlawful entry into the dwelling of another with intent to commit larceny or felony. (what the person is doing in when they break in, it has to be a felony)
Homicide: unlawful killing of another
Felony murder: if you are engaged in a felony that leads to death.
False pretense: Misrepresentation of material fact with the intend to defraud. Material fact something a reasonable person will take into consideration before making a decision.
Bill of right:
1st: Speech religion press and assembly
2nd : right to bear arms
3rd no quartering act
4th freedom form unnecessary search and seizure
5th due process/ freedom of self-incrimination/ double jeopardy
6th right to speedy trial
7th
8th no excessive bail or cruel unuss
9th these right do not deny other rights
10th the right that are not reserved here are reserved for the states
Final paper: write a new bill of a proposed law 10 pages and present as if you are presenting on the floor of congress to pass
9/6/16
Final paper: writing a law for any country other than the US. Introduction to the law and why we need it and give history of why it has come up. Look at syllabus page 6
Concurrence:
Decent:
Blackboard discussion: next week we don’t have to read the concurrence or the decent.
Midterm: 50 questions, mostly multiple choice, a few true or false and a few open ended questions.
Brief of NYT v. Sullivan: what I need to know
- why is the 14th amendment so important in this case? you have freedoms that applies to federal government but this is a state. The 14th amendment applies the bill of rights to the states.
-actual malice: a knowing and reckless disregard for the truth.
-freedom of speech reference to the government
-the policy behind freedom of speech and press is the speech behind the people
-speech not protected:
-Defamation: false statement about a person published to a third party
-Liable:
-Slander:
-Defense against defamation is the truth, it can’t be defamation if it’s true.
9/13/16
Recap from last week.
-freedom of speech and press are the same
-Press now mean “media”
-Freedom of speech can also be associated with actions (flipping off a cop) or inaction (kapernick)
Limited issue public official: knowing to the public for a limited time.
-normal person does not have to prove malice to sue anyone, a public official does.
Near v. Minnesota (p.301)
-Near is a biggest and is anti-everything, and ran a sat paper. He accused everyone in the city is ran by Jews and starts to get attention. And is arrested after time, he claims that he has freedom of press.
-What came out of this: you can have freedom of press as long as it does not have any of the following three things:
-You couldn’t publish any military info
-Anything that was obscene
-Or in sighted acts of violence
-Know what the rule was for:
-Schenck: WW1
-Brandenburg: KKK
-Which came first: Schenck
-without the first amendment all you have is information that is given to you by the government
Testable from video
-Shield Laws: laws designed to protect reporters privilege
-Obscenity is not protected by speech laws
- Justice potter Stewart does not know what obscenity is but he knows what it is when he sees it.
-The Miller test: Miller v California (google it) do what you want but if it violates one of the other its wrong, nothing can pass the miller test except child porn.
-Child pornography case Ferber case (google it) not protected: lacks
Other peach that is not protected: intellectual property
-Trademark: something that identifies you, logo, you have to file for it before you can use the R
-Copyright: is something that you create. Song, book, poem. Put a little C at the end of it.
-Patent: novel idea to do something, a new something. Patten pending just means that you filed for it. Most patent are dismissed or abandoned.
Privacy: Row v Wade (abortion) it was ruled under privacy. It was a buildup of case
-The supreme court found there was that there is an inferred right to privacy from the US Constitution.
-The CA constitution Article 1 section 1 gives you the right to privacy
9/20/16
The Basic
-Legislative: Creation of Law
-Judicial: Interpretation of law
-Executive: Execution of laws
What is law: a System of rules that a particular country or community recognizes as regulating the actions of this member and may enforce by the imposition of
-source of American law: the constitution (delegates authority to create other laws)
-Statute/ Act: Laws enacted by the legislature
-Case law: Organic creating of law through judicial interpretation (common Law)
-Administration Law law (lawish) regulation created by federal agencies/ entities
“laws, like sausages, cease to inspire respect in proportion as we know how they are made”
Career
Miranda Rights: when detained people are informed about their right to not incriminate themselves (5th Amendment) Miranda Rights if you have an attorney and your rights have been read to you your confession stands. Coercion is illegal and not covered in Miranda Right
Gideon v. Wainwright: establishes due process.
Katsenback v. McClung: Congress gets to regulate congress the importace of this case they took the
Congress claus: the biggest way that its there is with Due process.
States Police powers: the states apply these versions about
Under federal laws employers cant not discriminate based on: Google it
They all fall under the 5th and the 14th
-title 7 created the employment portion to civil rights, by arguing the congress clause
Age discrimination and employment act: more than 20 workers in your office you cannot discriminate people over 40
Rehabilitation act: protection for people with disabilities section 504 requires reasonable accommodations Section 504 applies to all who have a federal funding.
-Section 504: American legislation that garntees right to people with disabilities.
Reasonable accommodation: Alteration of policy to accommodate a disability
American with Disabilities Act: requires reasonable accomadtion, and makes everything accessible not just physical but tty (everything)
A disability is a mental or physical health condition that substantially limits one or more major life activities.
Employment litigation: (employee of federal) before any one sues you they have to get the right to sue you stature of limitation is 6 months.
10/4/16
Exam:
-know the bill of rights
-make sure you do the analyzes on all the things it could and could not be on the brief. Don’t leave any points on table. Final will be tort, what you can sue for.
Final:
Freedom of religion:
Alexander Hamilton:
-Never a president
-Congress Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances
-how the court has defined rule of religion: none, but this is what we have now
-your religious and philosophical
-Courts cannot question if it is really what you believe.
-Laws of general applications are generally not considered to violate free exercise
-freedom to believe, Absolute
-Freedom to do, can be imposed by government
General application
-Strict scrutiny is used in evaluation laws burdening religious freedom and look for compelling state interest.
5t
-No national religion and that there is no one religion that is favored
-Lemon test: A law is constitution
- does not violate
-
-does not foster
Equal access law: if you give to one you must give to all.
Some holidays are permisable:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including religious assembly or institution unless the government can demonstrate that imposition of the burden on that person assembly or institution
is in furtherance of a compelling government interest and
is the least restrictive means of furthering that compelling government interest.
Brown Act
-promotes transparency and public trust
-public access to meeting
-public attendance and participation
-Right to respond
Go over the slides on the brown act for the test
California public records act request, no specific form or language required and you have 10 days to reply
With in reason:
10 days you only have to respond, give an apporx time they will receive
Privalge information is off han
No set cost, you can only charge the cost of giving it to them, so it comes down to paper
If you are suing a government agency, you have to make a claim within 6 months of actual injury.
You have bring the claim in within 6 months.
10/11/2016
Brown vs Board of education
Overturned the segregation laws, separate but equal. Court established that segregation had negative effect on the children. 14th amendment equal protection claus,
Courts in CA
Superior court
Chief justice: Tanya
Must review case where death penalty had been imposed
Pellet court
Pellet distric
Superior court can hear what ever they want.
Federal courts:
Federal jurisdiction
Division jurisdiction: Different states over 75K
Plaintiffs want to be in state court
Defendants want to be in federal court
Before we file a law suit you have to submit claim with in 6 months for government, they deny it and then you can sue.
Starure of limitation:
-evidence starts to diminish, witnesses forget, docs will fade
When you are looking at Stature of limitation
-which state of limitation applies
-when does the action accrue? When it happened, or when was it discovered or should have been discovered.
-is there any tolling provision: Tolling pauses the statute of limitation.
In CA you can shorten and lengthen the statute of limitation
What cases can be heard in the CA
Subject matter jurisdiction: what cases that court can hear
And
Personal jurisdiction: concern the ability of the state court to enter a
-The court can hear cases as long at the defendant resided in CA, there with the intent to remain
-Personally served while in CA, includes flying on a plane over CA
-Defendant consent to CA jurisdiction
-General appearance in
-when the defendant has minimal contact with the,
-plaintiff by submitted in that court has agreed to the jurisdiction of the court that
Serving:
-personal service, files proof of service once a person does it
To sertve one you have to over 18 and a party of the case
-Substitute service: reasonable and of age. Made a reasonable attempt to deliver and then hand it to someone
-Can be served by mail, proof of serves still needs to be done
-service by mail with an acknowledgement of receipts, if the person being served is willing to fill it out
-Service by publication: serving someone by publishing in periodical or journal. You have to get a court order to get it, its called an over the counter that can be easy
-Posting it also counts.
Outside of CA you can serve by any methods that state allows
Where do you file: venue? The actual county that you file
Family law
Every other case:
Venue referees to the county where the action can be filed,
General rule:
-venue is proper in the county where any of the defendant reside at the commence of the
-if the defendant does not reside in CA you can file in any county
Personal injury: venue where the accident occurs (physical and not emotional)
Government: mandatory in the county where the injury occurred
Demurrer: opposing council is saying there is nothing there, a motion to dismiss
Two types
Specific Demurer
Motion for judging on the pleading, when you ask the judge to make a motion based on the demurrer ie. there is nothing there
The most common motion to strike punitive damages, damages to make an example of something. But rarely is it taken out.
Pleadings
Complaint/ Summons
-who the parties are
-why jurisdiction is proper
-why venue is proper
b.Defends
-Demurrer
-Answer: due 30 days after they were served, unless otherwise noted
- the
Two types of complains
-pleading complain
-forms complain
cross complain ( sue each other)
C. Discovery: the formal exchange of information between both sides of the law suit.
-Tools:
Request for Production of Document s in the party
Form Interrogatories\ Special interrogatories.( in the party)
Deposition in the party
Admissions
Physical Exams
Subpoenas (not party of the case they send him subpoenas)
Biggest No No is
Resolving the case before the trial
Compulsory counter claim: I am suing you I think you did it and you are going to sue me since you think I did it but the judge will only go over the facts once.
Strategic
10/18/16
6th amendment: commonly known as the fair trial. right for a fair trial, including right to face you accuser
the 6th has the confrontation clause, you have the right to face your accuser.
911 example: when the victim of DV calls for help it is not testifying against accuser but seeking services
-do not want to show up or cannot
-the statement has to be non-testimonial
-hearsay out of court statement offered for the truth of the matter asserted
-General rule, hearsay is not allowed in court
-there are some exceptions
-admission by a party: statement by the party
-dying declaration: john doe did this with his last breath
-excited utterance: what falls out of your mouth as a reaction, no time to think
-Statement against pecuniary interest when you use statement against yourself but in criminates themselves
5th amendment: Miranda rights, right not to incriminate yourself and spousal privilege
4th amendment: protected against illegal search and seizure. If you want to search someone you have to get a warrant. Judicial order to effectian
4 requirements:
-must be supported by probable cause
-issued by a neural and detached not representive
-oath or affirmation, swear that someone has something to search
-particularly:
-exception to the warrants
-search incident lawful arrest: I have arrested you in your house and now I can search
-Element: custodial arrest, in cuffs, it has to be lawful, it has to be done right after the arrest
-Scope: search person, anything with in your wingspan, anywhere near where I arrested you
-if I aren’t you in your car I can search the car as long as you are not in restrains, if you are not free to go
Search for an arrestee: valid arrest warrant, and probable cause that the subject is in that location. If you have a wareent you can look everywhere for the person, where the person lives, if you find any thing illegal you can claim it
Excergent circumstances: you must have probable cause and it has to be an emergency. If they are at risk for flushing drugs, you can take the box and leave it in your backseat until you get the clear to look inside.
Cars: they have to be they car and have to have evidence to
-elements: on the highway or can be on the highway
-scope: stay within your scope, if you are looking for guns you can’t look in a wallet
If a cop can see it and its illegal, he can take it.
Has to be observed from a lawful
Have to have a right of access to it: you can see it without looking too hard
The nature of the object
Inventory search: I impond your car I can serach the car
I get to search for invientory for your protection
If I see something I can use it against it
Consent searches: when you consent to a search. You don’t need to know that you have the right to say no.
-there has to be actual consent
-has to be voluntary
-if you consent you can set the scoope
Stop and frisk doctoring: you can stop and pat down someone just based on
Specific and articular facts when taken together with rational facts
Confession: they can’t be forced.
Fruit of the poisonous tree: if I don’t have a rightful right to begin with, anything that you find that follows after that cannot be used against you.
6th amendment: has a right to council.
The 5th applies when you are arrested and or waiting to be arrested. Once you have charged you now have a right to council.
Once you get that right the police or anyone can interrogate you without your attorney present
-they can ask you if you would like to waive their right, and can take it back when ever they want
-if it has to do with another crime
-if the govetment wants to get more information, they can send in an informant
They can use it as long as they don’t as for it, it has to come up in conversation.
They can question if it has to do with stopping any additional crimes. Ie. terrorism
Civil (torts)
Vicarious liability: when you are responsible for the torts of another person.
If you lend your car to a drunk friend
Respondeat Superior:
10/25/16
Voter rights
Bush vs Gore
The race was too close. Bush won and after the recount he was still ahead
Bush won the last
The FL supreme court was les conservative than the supreme court so Gore went to FL and Bush went more conservative
The voice of the people was important in this election.
Civil war changed
3/5th compromise slaves were counted 3/5 in census for the purpose of representation
War and reconstruction period for the inclusive a
1870 15th amendment can’t stop people from voting based on race, religion or previous servitude
1920 19th women’s right to vote
24th No poll taxes
26th set the age to 18 to vote
1965 controls voting right act
Three parts to the voting right act
-You can’t do anything discrimination
-Here’s the formula to if you are doing something discriminatory
-You have to get permission before you change anything
Voter ID law, the nun who had to turn away her sisters for not having ID
Voter ID are valid in order to maintain voter integrity
Shelby vs Holder Will be on the test: supreme court ruled section 4b unconstitutional, the checklist that eliminates people from being able to vote
Review
-Lemon test: has to pass all three to be constitutional. Statue must have a secular legislative purpose, its principle or primary effect must be one that neither enhances or advances religion, the statute should not foster an excessive government entanglement with religion.
Essay: is a must and you must be able to use the IRAC rule
Torts and crimes: tort is something you sue for crime is against society and are prosecuted for
Civil Law: the biggest one is negligence
Criminal court the people of CA decied to press charge
Basic laws can either be torts of crimes
Battery
Burglary
Robbery
Homicide
Felony murder rule
Starttus decisus
Know the who is the Obama candidate justice of supreme: Merreick Garland
Know the bill of rights
1-10
Maubaury vs madision:
Free speech defined expression without restriction
Liable: written
Slander: spoken
The truth is the absolute defense to defamation.
Near Vs Minnesota: the government cannot limit free speech in 1931
NYT vs US: to exercise prior restrain the government must show sufficient evidence that the publication will cause danger.
NYT vs Sullivan requires a public official have to prove actual malice
Limited issue public official, do not have to prove actual malice (honey Boo Boo)
14th applies the Bill of rights to the states
Ohio vs Shank, at what point speech is no longer protected clear and present danger rule: yelling fire in a crowded theater.
Obscenity, justice Potter Stuart I don’t know what it is, but I know when I see it
Miller vs CA case set the standard test for obscenity
Miller test: Only child porn is going to pass that test
Shield laws: protection on reporters
Trade mark: Logo
Copy rights: something you create
Patens: an idea
US constitution right to privacy Roe vs Wade
CA constitution states the right for privacy
Employers cannot discriminate under the 9
Civil rights rules apply to federal govermetn
States adopt the rules by state police powers
Age discrimination act protects over 40
Right to reasonable accommodation
Americans with disability Act: know it
Miranda warning: know it
Religion:
Free exercise clause: example: anima sacrifice: reserves the right of American to accept any religious belief and engage in religious rituals.
Establishment clause: congress shall make no law no religion will be favored over another and there is no one national religion
Lemon test: short answer? is this allowed
RLUIPA : Religious land use and internalized persons act: protects individual houses of worship and other religions from discrimination from zoning and landmarking laws
Brown Act: transparency and public trust by
Public access to meeting
Public attendance and participation
Receipt of public comment
Public comment is allowed on any item on the agenda, before or during the bards consideration unless it is a subcommittee and has been previously heard.
California public records>: anything is available for review. You can get copies if you pay for them
California, you must set a claim within 6 months of injury to then be able to sue
Civil procedure
Supreme court state of CA reviews all death penalty case
Stature of limitation, cut off time
Which one applies
When did the action happen?
Are there any tolling provision (pause) I was in a coma or under the age of 18
Plaintiff like to sue in State court
Defendants like to sue in federal court the courts are more controlled and less regulations
Before a court can hear a case, they must have
Subject matter jurisdiction: the authority of the court to hear cases of a particular type or cases relating to a specific subject matter.
Personal jurisdiction: the court can hear the case if the defendant is in CA at the time of accident or was served in CA or if they consent to CA jurisdiction
This only applies to defendant, the plaintive files and has already chose what state
Who can serve: over 18 and no part in the case
Know the different types of ways to serve
Outside of CA you can serve in whatever way they allow in that state
Venue is proper in any county where the defendant resided
Venue is proper where any of the defendant resided in the commencement of the contract or accident
Pleadings; complain is the document that start your law suit
Doe pleading.
You can amend you complain one time and after that you must ask for the courts permission
Cross complain, if your lawsuit comes from the same event counter claims must be done at that time or cannot be done in the future
Motion to strike, to remove from record
Common required to strike punitive damages
Anti-Slapp Motion: strategic law against public participation. Ie. yelp I write food sucks, the restaurant tries sue, I file an anti-slap motion its my first amendment right to make that statement and the business
Slap back Motion: the restaurant
Deposition when you sit with a court reporter they ask question like in court they have 30 days to respond
When you have questions like a deposition
any conversation that you have during the settlement, you can’t bring back up in trial
Default motion, if you file a complaint and they don’t file motion with in the 30 days you can file for default motion so they can get they locked out
Civil court 473 when you didn’t file with in the 30 days you can get an opportunity to file an explanation
Warrants
4th amendment right against search and seizure
Fruit of the poisons tree obtained anything obtained without a warrant, cannot be used against you.
Warrant
Demonstrate just cause
Issued by a non-partial
must be specific
When warrants are not required
A search incident to lawful arrest: police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence.
Inventory searches: for your protection, we will inventory
Consent searches: first you need actual consent, actions count
Second voluntaries requirement: you can’t lie to them but you can avoid telling them you they can say no
Search for an arrested:
Exigent
Searches of cars and container
Plain view doctrine: if you can see it while arresting , you have to see it from a lawful vantage, must have a the right of physical access, nature of object has to be apparent.
Apparent authority doctrine, you think the person had the right to authorize the search
Stop and frisk: you have to have a reasonable suspicion
5th amendment you have right to council, applies when you are about to be arrested
6th amendment: is not attached until you are charged or indicted. Attorney present when questioning once you ask for an attorney no more question. You can turn it on and off and they can ask you about another right
Confrontation clause: you have the right to face your accuser under the 6th amendment
Here say: out of court stamen offered for the truth of the matter asserted
Strict liability when you engage in dangerous shit liability is assumes
Vicarious liability: your negligence can make you liable, lending your car to a drunk person
Respondent superior: employers are responsible for employee
Mere deviation doctoring: the employer still responsible even if they make mere deviation
Strict scrutiny: compelling government interest like vaccine, it has to be for the greater good to pass the law
