Law and Justice Chapter 7 powerpoint

1. Chapter 7

2.  Designed to provide remedies for individuals harmed by others
 Designed to manage social conflict
 Designed to restore social harmony
 Provides means by which disputes settled between private
parties can be resolved without use of force
 Has own substantive and procedural law as well as precedent

3.  Divided into four main categories:
 Torts
 Property law
 Contract law
 Family law
 Juvenile law is also category of civil law (Chapter 8)

4.  Complaint filed by plaintiff
 Private party
 Redress given in form of
 Monetary damages
 Injunctions
 Specific performance
 Penalty not inflicted by state
 Can be filed in criminal and civil court for same act

5.  Either party may appeal case outcome
 So long as there is presence of adequate legal grounds
 Burden of proof in civil trial:
 Proof by preponderance of the evidence
 More likely than not defendant committed wrongful act
 Also use clear and convincing evidence
 Punitive damages
 Compensatory damages
 Involuntary commitment

6.  Burden of proof initially on plaintiff
 If prima facie case is made, burden shifts to defendant (respondent)
 Prima facie case may be rebutted
 Some are beyond rebuttal
 Res ipsa loquitor
 Facts self-evident that negligence lies with defendant
 Not necessary to prove additional details
 Only about 6 percent of civil cases go before a jury

7.  No exclusionary rule
 No right to remain silent
 Diminished right to cross-examine hostile witnesses
 No legal obligation for states to provide attorney for indigent
defendants

8.  Latin term tortus
 Body of law associated with harm caused to plaintiff by action or
inaction of defendants
 Not including breaches of contract
 Determines what harm has been done and how best to remedy
such harm
 Return plaintiff to position similar to one prior to harm
 Damages awarded
 Usually monetary

9.  Constitutes majority of cases brought before American courts
 Individual can be held liable for harm done in both civil and
criminal cases
 No double jeopardy
 Cannot bring suit against same person for same civil case
 Res judicata
 Not applicable in certain circumstances

10.  Intentional acts
 Defendant deliberately caused harm
 Negligent acts
 Defendant has duty to act in certain way; defendant breached duty;
harm resulted
 Ordinary care standard
 Lubitz v. Wells (1955)
 Strict liability
 Plaintiff need not prove defendant acted intentionally or negligently

11.  Challenge causal and duty issues
 Affirmative defenses
 Contributory negligence
 If injured party is partially responsible for injuries, they are barred from
recovering
 Comparative negligence
 Apportions responsibility
 Consent and immunity (sovereign immunity)
 Consent to being harmed by another
 Judges cannot be sued for judicial decisions

12.  Efforts to have legislation passed limiting frivolous lawsuits and
exorbitant punitive damages awarded by jurors
 Driven by headline cases
 Sue-happy tradition appears to have passed

13.  Product of English common law
 Protection of ownership rights
 Property
 Right of possession or ownership
 Includes
 Real
 Personal
 Intellectual
 Pierson v. Post (1805)
 City of Oakland v. Oakland Raiders (1980)

14.  Interest are rights
 Freehold estate
 Fee simple estate
 Possession ends at death
 Fee simple absolute state
 Possession does not revert to original owner at death
 Tenancy in common
 Non-freehold estates
 Right to use property

15.  Easement
 Limited right to use property of another for specific purpose
 Adverse possession
 Generally affects only property abandoned by original owner
 Very easy to prevent claim
 Nuisance doctrine
 Property owner may not use property in such way that it has
unreasonable, adverse effect on other property owners
 Must keep property reasonably safe

16.  Personal property
 Any tangible item not connected to land
 Movables
 Can be transferred permanently or temporarily to another person
 Bailment
 When person transfers possession of one item to another person for
particular purpose with understanding it will be returned
 Transfer of ownership, not possession

17.  Governs conduct of business
 Contracts
 Legally enforceable promises
 Breach of contract
 When terms of contract are not met
 Uniform Commercial Code
 Standardizes trade and contract practices among merchants and
businesses
 Codifies variety of already established principles by common law

18. 1. At least two parties
 Two-party requirement
2. Must be capable of signing contract
 Legal capacity requirement
3. Must agree to terms of contract in good faith
 Assent requirement
4. Must have both a promise and consideration
 Legality requirement
5. Can be either written or verbal
 Sullivan v. O’Conner (1973)
 National Labor Relations Board v. Bildisco & Bildisco (1984)

19. 1. At least two parties
 Two-party requirement
2. Must be capable of signing contract
 Legal capacity requirement
3. Must agree to terms of contract in good faith
 Assent requirement
4. Must have both a promise and consideration
 Legality requirement
5. Can be either written or verbal
 Sullivan v. O’Conner (1973)
 National Labor Relations Board v. Bildisco & Bildisco (1984)

20.  Family is basic institution of any society
 State is third party in every marriage
 Family law designed to protect integrity of marriage
 Conciliatory rather than accusatory
 No necessary judgment of right or wrong
 Focuses largely on entering into and dissolution of marriages

21.  Requirements for marriage:
 License from state
 Possibly may need a blood test and waiting period
 Vows must be made in presence of someone legally permitted to
acknowledge marriage
 Marriage vows must be witnessed

22.  Marriage is legal contract
 Carries rights and responsibilities for both parties
 Must meet certain requirements
 Legal capacity
 No mental deficiencies
 Insanity
 Being under the influence
 No closely related people
 Cannot be married to someone else

23.  Reynolds v. United States (1878)
 Skinner v. Oklahoma (1942)
 Loving v. Virginia (1967)
 Zablocki v. Redhail (1978)
 Turner v. Safley (1987)
 None of these cases changed the core definition of marriage as
union between a man and a woman

24.  No country allowed for same-sex marriage at turn of 21st century
 Netherlands was first in 2001
 United States followed on June 26, 2015
 Twentieth country to do so
 Road to success for gays and lesbians difficult
 Public opinion favoring validity of same-sex marriage more than
doubled from 27 percent in 1996 to 60 percent in 2015

25.  Court has consistently declared right to marry as part of
fundamental “right to privacy”
 Federal Defense of Marriage Act of 1996 (DOMA)
 Passed by Congress
 Stated that only same-sex couples could be married
 Consistent with earlier decisions
 In 2008, California Supreme Court ruled same-sex marriage
constitutional
 Same year, voters in state passed Proposition 8

26.  August of 2009
 Lawsuit over both Prop 8 and DOMA (together in same case)
dismissed on jurisdictional grounds at federal district court level
 February 7, 2012
 Federal appeals court struck down California’s ban on gay marriage
 May 30, 2012
 Three-judge panel for First Circuit unanimously declared DOMA
unconstitutional

27.  United States v. Windsor (2013)
 Court struck down pivotal Section 3 part of DOMA
 Restricting terms “marriage” and “spouse” to heterosexual union is
unconstitutional under due process clause of Fifth Amendment
 Case did not establish constitutional right for same-sex marriage
 Clear indication that Court was trending in favor of it

28.  Obergefell v. Hodges (2015)
 Court in 5-4 decision ruled that homosexual marriages are legal in
every state
 Two issues before court in this case:
 Does Fourteenth Amendment require state to license marriage between two
people of same sex?
 Does Fourteenth Amendment require state to recognize marriage between
two people of same sex when marriage was lawfully licensed and performed
in another state?
 Case combined cases from multiple states and had more than
twenty plaintiffs

29.  Couples cohabitate and act in every way as though married
 For period of time and maintaining certain criteria
 Recognized as valid if states allow them
 39 have abolished them
 States recognize marriage to be legal contract
 Those that recognize require individuals to abide by contractual
agreements in establishing relationship
 Also may have to abide by dissolution requirements

30.  Requires legal grounds
 No-fault
 No assumption of fault by either party
 Fault
 Adultery
 Cruelty
 Desertion
 Insanity
 Alcoholism

31.  Legal declaration that not all requirements were met
 Marriage never existed
 Lack of legal consent
 Impotence
 Concealing a sexually transmitted disease
 Concealing pregnancy from union with another person

32.  Dissolution requires determining who gets what out of partnership
 Statutes vary by state
 Two dominant types of split
 Dual property
 All property

33.  Custody
 Based on custodial status of parents
 Child support
 Based on custodial status as well as income, costs of child rearing,
and other factors
 Many states have complex formulas

34.  Branch of law involving governmental administrative agencies
 Agencies make, enforce, and adjudicate administrative law
 Investigates complaints, conducts on-site inspections, and
requires annual reports
 Combine government roles
 Have huge impact on lives

35.  Article 1, section 8 of U.S. Constitution
 Grants Congress plenary power to regulate commerce
 Prior to twentieth century
 During twentieth century

36.  Explosive growth in administrative/regulatory agencies since
1789
 Interstate commerce Commission (ICC)
 Created in 1887
 Designed to respond to unfair railroad tariffs
 Agencies grew rapidly under President F. D. Roosevelt in 1930s
 Passing of Administrative Procedure Act (APA) of 1946
 170 federal agencies today

37.  Law created by agencies themselves
 Similar to other laws in processes and procedures
 Apply only to businesses and activities that fall under specific
area of responsibility of agency
 Securities and Exchange Commission (SEC)
 Has power to regulate activities related to stock exchange and
securities market

38.  Create their own rules due to realization by Congress that only
they have specific knowledge pertaining to subject matter
 Investigate violations of agency rules and devise ways to enforce
them
 Settle most disputes informally by voluntary settlements
 Can be settled in administrative court hearings
 Chevron deference

39.  Increase in concern since 1960s
 Overseen by Environmental Protection Agency (EPA)
 Is an ideal that is difficult to obtain
 First Earth Day in 1970
 Environmental laws existed before 1960
 Most effective passed after 1960s
 National Environmental Policy Act (NEPA) (1969)
 Clean Air Act (1970)
 Clean Water Act (1972)

40.  Local police and prosecutors not trained to enforce environmental
laws, nor view them as priority
 EPA
 Largest regulatory agency
 Divides enforcement tasks into three areas
 Civil enforcement
 Cleanup enforcement
 Criminal enforcement
 Most regulations (both federal and state) allow for both civil and
criminal enforcement
 Agencies tend to pursue civil over criminal

41.  Burns and Lynch (2004)
 Support for environmental protection has waxed and waned
across presidential administrations since 1970
 Nixon administration
 Created EPA
 Largely positive influence on environment
 Carter administration
 Provided mixed messages

42.  Reagan administration
 Pro-business/antiregulatory stance damaged EPA
 George H. Bush administration
 Mixed record much like Carter
 G. W. Bush administration
 Seen as worst on environmental issues
 Obama administration
 Entered office with “greenest” credentials
 Has backtracked on many since entrance
 Did kill Keystone XL pipeline

43.  Primarily offenses committed by businesses
 Many have far reaching health and safety effects
 Defendants typically tried under principles of strict liability
 Civil or criminal courts
 Rylands v. Fletcher (1868)
 United States v. Weitzenhoff (1994)
 BP oil blowout in 2010

44.  Agencies lack criminal enforcement powers beyond assessing
fines
 Can refer to criminal prosecution
 White-collar crimes absent from tally in Uniform Crime Reports
(UCR)
 Financial Crimes Report
 Provides separate account of white-collar crimes each year

45.  Few corporate crooks recipients of truly meaningful sanctions in
past
 Things beginning to change
 Passing of Sarbanes-Oxley Act (SOA) of 2002
 Requires company chiefs to personally vouch for company’s financial
disclosures
 White Collar Crimes Penalty Enhancement Act
 Created new securities offenses with slightly enhanced penalties