21/12/2009 A SURVEY COURSE. Agenda. 1. Topics Covered on the Exam. 2. Sample Exam Questions. 3. Questions

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1 A SURVEY COURSE Agenda 1. Topics Covered on the Exam 2. Sample Exam Questions 3. Questions 1

2 Topics Covered on the Exam Federalism (Federal Courts vs. State Courts) Common Law/Primary vs. Secondary Authorities/Stare Decisis/Dictum The Priority of Sources of Law Constitutional Law Criminal Procedure Civil Procedure Patent Law Copyright Law Jurisprudence Precedent The Court Hierarchy The Dual Court System Binding vs. Persuasive Authority Primary vs. Secondary Authority The Dual Court System 2

3 Federalism The American legal system is based on a system of federalism, or decentralization. While the national or federal government itself possesses significant powers, the individual states retain powers not specifically enumerated as exclusively federal. Common Law The term common law may refer to any of the following: (1) common law as differentiated from civil law, and (2) case law. 3

4 Common Law The role of case law in US law. Common Law: Using Precedent Analogizing vs. Distinguishing 4

5 Access to the Federal Courts Standing Finality Exhaustion Ripeness Mootness No Political Questions The Roles of the Participants in the US Legal System The Judge The Jury The Attorney 5

6 Primary vs. Secondary Authorities Primary authorities include: (a) Constitutions (b) Statutes (c) Rules, Regulations, and Orders (d) Treaties (e) Executive Orders (f) Case Law/Common Law Primary vs. Secondary Authorities Secondary Authorities are not law They comment upon, summarize, restate, criticize, or advocate changes in the law. 6

7 Stare Decisis Means let it stand The principle by which courts must follow prior decisions in factually similar/analogous situations Know how stare decisis is used by courts Binding vs. Persuasive Authority The same case may be binding in some contexts but not in other contexts. If an authority is considered to be persuasive, it does not mean that a subsequent court will necessarily consider it to be persuasive. 7

8 Court Structure Federal vs. State Courts: Know the general structure of the courts Appellate Review The Role of the Supreme Court Interrelationship Among Federal Government Institutions There are four key concepts to consider: 1. The Three Branches of Government 2. The Federal System of Checks and Balances 3 The Authority of Federal Courts 3. The Authority of Federal Courts 4. Congressional Authority to Override Court Precedent Prospectively 8

9 Priority of the Sources of Law The Hierarchy of Federal Authorities The Hierarchy of State Authorities Dictum What is dictum? Dictum is that part of the court s decision that was not necessary to the court s resolution of the issue before it. 9

10 Terms Used in Connection with the US Legal System Examples include parties, plaintiff, defendant, holding, concurrence, dissent, etc. Legislative History Statutes and how they are enacted How a bill becomes a law 10

11 Constitutional Law Separation of Powers: The roles of the executive, legislative, and judiciary branches. Constitutional Law We discussed the 1 st, 4 th, 5 th, 6 th, 8 th, and 14 th Amendments 11

12 Constitutional Law Due Process Procedural vs. Substantive Due Process Roe v. Wade and Griswold cases Constitutional Law Procedural Due Process In a nutshell, procedural due process is the minimal requirements of notice and a hearing guaranteed by the 5 th and 14 th Amendments of the Constitution. 12

13 Constitutional Law Substantive Due Process By way of contrast, Substantive Due Process is the doctrine that the 5 th and 14 th Amendments require legislation to be fair and reasonable in content and promote a legitimate government interest Constitutional Law Equal Protection The 14 th Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Know the three types of judicial review (i.e., strict scrutiny, intermediate scrutiny, and rational basis) Bakke case 13

14 Constitutional Law First Amendment Freedoms: Separation of Church and State Free Exercise (of Religion) Freedom of Speech Freedom of Expression Criminal Procedure The Fourth Amendment prohibition against unlawful search and seizure The Fifth Amendment right against self incrimination The Sixth Amendment right to counsel 14

15 Criminal Procedure Fourth Amendment: Felonies vs. Misdemeanors Probable Cause Reasonable Expectation of Privacy Searches Pursuant to a Warrant Miranda The Exclusionary Rule The Fruit of the Poisonous Tree Doctrine Criminal Procedure Fifth and Sixth Amendments: Statements, Confessions, and Identifications Massiah 15

16 Criminal Procedure The Chronology of a Criminal Case The Guarantees of a Fair Trial Civil Procedure Phases of a Litigation: 1. Due Diligence 2. The Pleading Stage 3. Discovery 4. ADR 5. Expert Discovery 6. Dispositive Motions 7. The Pre Trial Phase 8. The Trial 9. Post Trial (Appeal) 16

17 Patent Law What is patentable? Types of Patents Novelty and Non obviousness The characteristics of a Patent Term of a Patent Copyright Law What is Copyrightable? Expression vs. Functionality The Characteristics of a Copyright Term of a Copyright 17

18 Sample Questions You can expect: objective questions (i.e., true/false, multiple choice questions) 3 5 subjective questions (i.e., short essay questions) 1 hypothetical question (for extra credit only) Sample Questions True/False Identify whether the following statement is true or false: The purpose of copyright law is to protect functionality. (a) True (b) False 18

19 Sample Questions Multiple Choice Which of the following is not a form of discovery under federal civil procedure law? (a) Written Interrogatories (b) Depositions (c) Motions for Summary Judgment (d) Requests for Admission Sample Questions Short Essay Do you agree with the Supreme Court s holding in Miranda v. Arizona? In answering this question, provide (1) a brief summary of the facts of the case, (2) the holding of the case, and (3) the significance of the holding. 19

20 Sample Questions Short Essay Do you agree with the Supreme Court s holding in Massiah v. United States? In answering this question, provide (1) a brief summary of the facts of the case, (2) the holding of the case, and (3) the significance of the holding. Questions? 20