Study Guides (400,000)
US (230,000)
Rutgers (3,000)
14:10 (100)
All (3)
Midterm

01:790:340 Study Guide - Midterm Guide: Legal Realism, Product Liability, Summary Judgment


Department
Political Science
Course Code
01:790:340
Professor
All
Study Guide
Midterm

This preview shows pages 1-2. to view the full 8 pages of the document.
Law and Society
Prof. Wollenberg
Revised Midterm Study Guide
Cases and theories to focus on when studying for the midterm:
Natural law: St. Thomas Aquinas and Martin Luther King Jr.
I. St. Thomas Aquinas
a. Law is a rule and measure of acts, where man is induced to act or
restrained from acting
b. Law must be in accord with reason
c. God instilled natural law in man’s mind
II. Martin Luther King
a. An unjust law is a code that a majority inflicts on a minority that is not
binding on itself
b. An unjust law is a code inflicted upon a minority which that minority had
no part in enacting or creating because they not have the . . . right to vote
Positivism: John Austin and H.L.A. Hart
I. John Austin
a. Law is a command
i. A wish or desire conceived by a rational being that another rational
being shall do or forbear
ii. An evil to proceed from the former, and to be incurred by the
latter, in case the latter comply not with the wish
iii. An expression or intimation of the wish by words or other signs
b. Positive laws are established directly or immediately by three types of
authors: monarchs or sovereign bodies, men in state of subjection, subjects
in pursuance of legal rights
i. Positive moral rules
c. Bulk of society in habit of following commands from certain superiors
d. Society not in habit of following commands of human superior
II. H.L.A. Hart
a. Law as is and law as it ought to be are one entity not two as Austin
believes
b. Separation of law and morals in incorrect
i. Belong together as one
Legal realism: Oliver Wendell Holmes, Jerome Frank and Karl Llewellyn.
I. Oliver Wendell Holmes
a. People want to know under what circumstances and how far they will run
the risk of coming against what is so much stronger than themselves, and
hence it becomes a business to find out when this danger is to be feared
b. The training of lawyers is the training in logic

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

II. Jerome Frank
a. When challenged by ourselves or others to justify our positions or our
conduct, we manufacture ex pos-facto a host of “principles” which we
induce ourselves to believe are conclusions reasoned out by logical
processes from actual facts in the actual world
b. Older lawyers learn the ropes and can be creative in their cases, while
recent graduate find a huge gap between what they learned in law school
and what they witness in the courts and offices
III. Karl Llewellyn
a.
How legal precedents do and do not limit case outcomes
I. Legal precedents can limit a case’s outcomes through having had a law passed
allowing judge to base current ruling on previous case’s ruling
II. Legal precedents do not limit outcomes because when a current case has
precedents from another, the judge can find that the previous ruling was in
fact wrong or unconstitutional
Llewellyn’s distinction between strict and loose views of precedents
The civil litigation process, and how civil and criminal cases differ.
I. Civil actions involve claims arising from private disputes and conflicts over tort
liability as well as divorce and child custody, the scope of juvenile rights, the
regulation of business corporations
II. Decision to commence civil litigation begins with injury that is perceived to be a
legitimate grievance
III. Process
a. Civil disputes begin with the payment of a fee and filing a complaint
which identify relevant parties, the factual and legal allegations of the
conflict and the sought after outcome in terms of legal remedies
b. Once case is filed, clerk of court issues summons to defendant to appear in
court and directs defendant to respond in admitting or denying plaintiff’s
claims; defendant may then file counterclaim if necessary to which
plaintiff must reply
c. Either party may submit a motion to dismiss the case
i. Possible because the allegations fail to state a claim in which relief
can be granted
ii. Summary judgment – no genuine issue as to any material fact and
that the moving party is entitled to a judgment as matter of law
1. If decided upon, court resolves legal claims without further
proceedings
iii. Burdens and costs of litigating civil claims is closely tied to the
time and effort it takes for lawyers to gather key facts and evidence
d. 5 Types of Discovery
i. Requests for admissions
1. The party may receiving the request may answer it by the
way in which a defendant responds to the allegations in the
You're Reading a Preview

Unlock to view full version

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

complaint, by ignoring it (which “admits” the issue), by
admitting it, or by claiming insufficient knowledge
ii. Interrogatories
iii. Requests for production
iv. Depositions
1. Expensive technique that solicits the sworn testimony of a
party or third-party witness
v. Motions for physical or mental examination
IV. Civil Case Outcomes
a. Civil cases are conducted in same way as criminal trials. Civil litigants
have right to jury if amount in question is more than $20.
b. Differences from criminal cases
i. Burden of Proof at trials
1. preponderance standard: the judge or jury weighs the facts
and evidence in terms of whether the allegations are
probably more true than not
a. Criminal cases: proof beyond a reasonable doubt
2. Clear, convincing evidence for heavier cases such as
termination of parental rights
ii. Relief available in civil cases
1. Compensatory damages: attempt to put injured parties back
into the positions they were in before the harm occurred
2. Punitive damages: monetary deterrent against future
violations of law
3. Nominal damages: positive outcome in cases involving no
harm, and juries award a nominal sum
V. Final Step: Enforce judgment against defendant if there are no intervening post-
trial motions that upset the verdict or if there is no appeal
Adversarial v. inquisitorial legal systems
Features Inquisitorial (Civil Law) Adversarial (Common Law)
Facts investigation Collaborative effort with
prosecutor and judge
discovering facts together
Litigants opposing each
other separately discover
facts without judge’s help
Pre-Trial Process Less extensive More extensive
Trial Process More disjointed, more
costly
Singular event (after pre-
trial), less costly
Judge’s Role Active, engaged; more
bureaucratic
Passive, neutral; less
bureaucratic
Jury Rarely used Used often (especially in
USA)
Bail Rarely used Used Often (especially in
USA)
Legal Education Undergraduate Graduate
Attorney’s Role More collaborative, less
influential
Less collaborative, more
influential
You're Reading a Preview

Unlock to view full version