Understanding Different Types of Law: Constitutions, Statutes, Common Law, and more - Prof, Study notes of Principles of Marketing

Download Understanding Different Types of Law: Constitutions, Statutes, Common Law, and more - Prof and more Study notes Principles of Marketing in PDF only on Docsity! CH:1- Types of Law: Constitutions: Exist at state and federal level- 2 functions: 1) set up the structure of government by creating branches and subdivisions (separation of powers) (US Constitution) 2) prevent other units of government from taking certain actions that restrict individual rights (Bill of Rights) Statutes: laws created by elected representatives of Congress *uniform acts* goal is to produce state by state uniformity on subjects they address. Not laws until enacted by legislature. Common Law: (aka judge- made or case law) law applied by judges as they decide cases not governed by statutes or constitutions. Exists only at state level- applied by both federal and state courts. *Case law reasoning: Precedents- when judges follow the decisions of previous cases. Stare decisis= “let the decision stand” – common law evolves to meet changing social conditions. Common law rules control the rules of tort, contract, and agency cases. *Statutory Interpretation: interpretation of statutes: vague wording can make it easy to interpret flexibly to achieve desired results: Different techniques: 1) Plain meaning- common, accepted meaning 2) Legislative history and purpose: overall goal of the legislation 3)General public purpose 4)Prior interpretations 5) Maxims: general rules of thumb followed Restatement rules- not laws but usually followed by a majority of states; stimulate changes in common law. *Common law fills the gaps left by other legal rules* injuction- court order forbidding a party to do some act/ forcing someone to do some act. 2 types of law made by administrative agencies: 1) administrative regulations: not made by legislative officials 2) agency decisions: legally binding though appeals are sometimes allowed. Treaties: “the supreme law of the land”: treaties invalidate inconsistent state laws. Ordinances: sub-state level regulations (ex: school district) Executive orders: issued by president. Priority rules of law: 1) Federal supremacy: Constitution and treaties are highest: Federal law defeats conflicting state law. 2) Constitutions defeat other law in their domain- state constitution defeats other state law. 3) When treaty conflicts with a federal statute (purely domestic matter) the most recent prevails. 4) Statutes defeat conflicting laws that depend on legislative delegation (ex- state statute defeats administrative regulation) 5) Statues defeat inconsistent common law rules. 3 Classifications of Law: 1) Criminal vs Civil Law: Criminal law: government prosecutes an individual. (Duties owed to the public) Civil law: obligations of private parties to each other: one private party sues another. 2) Substantive vs Procedural Law: Substantive law: sets the rights and duties of people as they act in society. Procedural law: controls behavior of government bodies (courts) as they establish substantive law. 3) Public vs Private Law: Public law: powers of government and regulation between government and private parties: Private law: framework of legal rules to set rights they owe each other (contract, property, agency rules). Functions of law: 1) Peacekeeping- resolution of private disputes 2) Checking government power and promoting personal freedom 3) Facilitating planning and the realization of reasonable expectations 4) Promoting economic growth through free competition 5) Promoting social justice 6) Protecting the environment CH:2- DETERMING the applicable law is the judges responsibility-. US has 52 court systems: 1 federal system + 51 state court systems & DC: Courts of limited jurisdiction: minor criminal cases and civil disputes are decided here. Large # of cases. Trial courts: 1) Find the relevant facts 2) Identify the appropriate rules of law 3) Combine face and law to reach a decision. Keeps a record of proceedings (important if appealed) Appellate courts: decide only legal questions (accept findings of facts): review the previous decisions of trial court. Jurisdiction: courts power to hear a case and issue a binding decision on both parties. Must have both subject matter jurisdiction and personam jurisdiction (aka rem jurisdiction) Subject matter jurisdiction: courts power to decide the TYPE of dispute involved (ex: criminal courts can’t hear civil matters) In Personam Jurisdiction: based on residence, location, or activities of defendant. Personal jurisdiction occurs when: defendants are citizens or residents of the state, are within states borders when process is served to them, or who consent to the courts authority. “Long arm statute” gives personal jurisdiction to certain out of state defendants: 1) doing business within the state 2) contracting to supply goods or services within the state 3) causing a tortuous injury in the state by an act or omission 4) causing a tortuous injury outside the state if the defendant regularly does business or solicits business. Derives substantial revenue from goods used or consumed. 5) having an interest in or possessing real property in the state 6) contracting to insure any person, property, or risk located with the state at the time of contracting. Federal courts can use state long arm statutes to obtain personal jurisdiction over nonresident defendants. In Rem Jurisdiction: based on presence of property within a state: states have power to decide who owns the titles to land within the state. 14th amendment due process clause. After jurisdiction is established, courts must also have venue: Must be “territorially fair and convenient forum”- typically set by state statutes to determine the specific county court. Federal Court Jurisdiction: Diversity jurisdiction and federal question jurisdiction= forms of subject matter jurisdiction. Diversity jurisdiction: 1) citizens are from different states 2) amount in controversy $75,000+ (corporation is a citizen in the state it is incorporated in and the state where its principal place of business is) Federal Question Jurisdiction: the case must arise under the Constitution, laws, or treaties of US: right created by a federal law is a basic part of the plaintiff’s case. Must also have personal jurisdiction. Federal courts have exclusive jurisdiction over some cases. Concurrent jurisdiction- both state and federal courts- plaintiff chooses and defendant can remove state court to federal court. Federal court of Appeals: no fact finding- only reviews the decisions of lower federal courts (13 Circuit Courts of Appeal) US Supreme Court: mostly an appellate court: certiorari- Court has discretion whether to hear the appeal. Certiorari jurisdiction: 1) validity of and treaty or federal statute is questioned 2) state statute is challenged in regards to federal law 3) title, right, privilege, or immunity is claimed under federal law. Original jurisdiction: Supreme Court acts as trial court not appellate- controversies between 2 or more states, and issues involving foreign ambassadors, ministers, etc. Civil Procedure: 1)Service of Summons: notifies defendant they are being sued. 2) The Pleadings: *the complaint, the answer, and the reply* documents the parties file with a court when they state their claims and defenses. The complaint: states plaintiffs claim in separate numbered paragraphs. The Answer: unless defendant succeeds with motion to dismiss defendant must respond to plaintiff claims with admission or denial of allegations. May contain a counterclaim. The Reply: point by point response by plaintiff to answer or counterclaim. Motion to dismiss: occurs after complaint is filed: Motion to dismiss for failure to state a claim upon which relief can be granted (aka demurrer).- No rule of law exists to entitle plaintiff to win on facts. 3)Discovery: after pleadings: request information from other party: minimize the surprise during litigation- depositions, paper history, requests for physical/mental exams. Summary Judgment: a way to dispose of clear cut cases without a trial- involves factual determinations. The party requesting summary judgment must prove 1) there is no genuine issue of material fact 2) they are entitled to judgment as a matter of law- if denied the case proceeds to trial. 4)Trial. 5) Appeal Directed verdict Motion: takes case away from jury and provides a judgment to one party before jury decides. Motion made by either party. Moving party asserts that evidence leads to one verdict only. Usually motion is denied by judge. Judgment Notwithstanding the Verdict Motion: One party wins even after a jury has reached opposite verdict. “judgment proof”- no assets. Not a good person to sue. Alternative Dispute Resolution (ADR): settlement, arbitration- the submission of a dispute to a neutral nonjudicial 3rd party. Binding decision. Mediation- cooperative resolution through a mediator. Summary Jury Trial- abbreviated mock jury trial; not binding. CH:6- Tort: Civil wrong that is not a breach of contract. **Burden of proof is on plaintiff** 4 types of tort wrongfulness: 1) Intent: desire to cause certain consequences: defendant has intent. 2) Recklessness: “willful and wanton conduct”:conscious indifference to a known and substantial risk of harm: more severe than negligence 3) Negligence: failure to use reasonable care 4) Strict liability: liability without fault. Compensatory (awarded to plaintiff) vs Punitive damages (recklessness and intent) BATTERY: intentional and harmful/offensive touching without consent: to be intentional 1) intent to cause harmful contact 2) intent to cause apprehension “transferred intent”- defendant who intends to injure one person but actually injures another is liable to person injured. ASSAULT: intentional attempt or offer to cause harmful contact to another person: reasonable apprehension of imminent battery. Threat at the time of battery. Irrelevant whether threatened contact actually occurs. Intentional infliction of EMOTIONAL DISTRESS: defendants conduct must be outrageous and beyond bounds of normal for plaintiff to get damages. Defendant must intentionally or recklessly inflict emotional distress. FALSE IMPRISONMENT: intentional confinement of another person (one instant) without consent. Can also be property (purse) DEFAMATION: 1)unprivileged 2) publication 3) of false and defamatory 4) statements concerning another: 2 forms- libel (written-email and AIM) and slander (spoken) Truth is a complete defense. Humor and satire are not included. Publisher also held liable for defamatory statements. Absolute privilege vs. Conditional privilege. Public officials must prove actual malice on behalf of the defendant. Actual malice: knowledge of falsity or reckless disregard for truth. INVASION OF PRIVACY: 4 kinds- 1)Intrusion on Solitude-tapping phone 2)Public disclosure of Private Facts- medical history 3) False Light Publicity 4) Commercial Appropriation of Name or Likeness Interference with Property Rights: Trespass to Land. Private Nuisance- interference of use and enjoyment of land. Conversion- civil version of theft. CH:7: Elements of negligence:1) Defendant owed a DUTY of care- plaintiff could foreseeably be at risk 2) defendant breached that DUTY (reasonable person test- failed to act as a normal person would) 3) Breach was actual and proximate cause of injury. MUST PROVE all 3. **Reasonable foreseeability of harm** Special duties: special cases used instead of reasonable person rule- ex) doctors and lawyers. Real estate owners must protect those who enter their property. 3 populations: (Wal-Mart case) 1) Invitees 2) Licensees 3) Trespassers Negligence Per Se: defendants violation of such laws may create a breach of duty and may allow plaintiff to win the case if 1) plaintiff is within the class of persons protected under statute or law 2) suffered harm of a sort that the statute/law was intended to protect. Types of damages: personal injury, property damage- usually only receive compensatory damages. Causation Link: 1) Was the breach an actual cause of injury? 2) Was it a proximate cause of injury? 3) What was the effect of any intervening cause arising after the breach? Both actual and proximate cause required for negligence. Actual cause: “but-for” test- shows that defendants conduct is actual cause of injury. Proximate cause: assume the existence of actual cause. *Designed to limit defendants liability. States that defendant is not liable for all injuries actually caused. Closeness between defendant’s breach and plaintiffs injury. Question of social policy. – proximate cause deals with foreseeability. Later acts, forces or events: event occurring after breach that can play a significant role if event is FORESEEABLE: ex) high winds are expected and cause fire to spread. Intervening cause: Event that was unforeseeable and absolves defendant from direct responsibility. Exception- unforeseeable later events that produce a foreseeable harm identical to the harm risked by defendants breach of duty. EX) failure to install fire exits in a concert hall- responsible for damage to those injured in fire. Res Ipsa Loquitur: burden of proof shifts to defendant. Used in medical malpractice. “the thing speaks for itself”. 1) Defendant has exclusive control of harm 2) harm would not occur without negligence 3) plaintiff was not responsible for injury. EX) barrel falling from warehouse. Negligence DEFENSES: 2 defenses: 1) contributory negligence-partly plaintiff’s fault- complete defense for defendant if there is causation between plaintiffs actions and injury. Exists in 5 states. Comparative negligence (mixed vs pure): Plaintiff and defendant are assigned a % of blame. Mixed: If defendant is less than 50% responsible he receives damages (30 states) Pure: even if defendant is more than 50% responsible he will