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legal studies 101
| Term | Definition |
|---|---|
| Double blind test | Using a different researcher/tester (e.g. a different cop guides the witness in the lineup test - less tunnel vision bias) |
| Due process model | Greatest threat to freedom is misuse of power & authority - anti authoritarian, limits police, prioritizes rights |
| DO IT BY THE BOOK | due process |
| THROW THE BOOK AT THEM | crime control |
| Crime control model | maintaining social order & repressing crime should be prioritized at all costs (even freedom), excessive rights only benefit criminals |
| assembly line justice / McJustice | prioritizing efficiency, informality, speed, and finality, with a high capacity to apprehend/punish |
| rule of law | all are equal before the law (even cops) |
| legal guilt vs factual guilt | ensuring clients rights were respected & the crowns case is solid is more important then whether or not they did it |
| Reliability model | balances crime control and due process ideals, |
| discovery | phase of pretrial where parties obtain info from other parties |
| things reliability model reconsidered | eyewitness evidence, jailhouse informant testimony |
| things reliability model improved | forensics, defense council (pleas, discovery rights) |
| supreme law | canada's constitution overrules all |
| principle of writtenness | unwritten elements survive through custom (e.g. role of prime minister isn't outlined but still exists) |
| constitutional conventions | rules/customs that are not laws (like principle of writtenness) but are followed |
| judicial review | supreme court's check/balance on government |
| judicial review checks | errors in jurisdiction, fact, & procedural fairness |
| arbitrary laws | disconnect between limit on liberty and objective of ban (e.g. restricting hairstyles) - rigid, abuse power |
| vague laws | failed to detail practices that are required/prohibited (e.g. banning pitbulls (mixes)) - undermines security |
| overboard laws | "overstretching" the objective (is it POSSIBLE to ban pitbulls?) - advances states interests |
| grossly disproportionate laws | caused harm more severe than the objective/issue that law addresses - ignores context |
| law interpretation: purposive analysis | infer purpose of legislation (INTENTIONALISM - going beyond text could obscure judge's decision making skills) |
| law interpretation: ordinary meaning | literal typical meaning of words (TEXTUALISM - could have too narrow a focus/meaning) |
| law interpretation: contextual analysis | context of entire legislative scheme |
| law interpretation: consequential analysis | disallows absurd results |
| stare decises | 'let the decision stand' - precedent |
| open court principle | generally courts are open to public + media |
| reasonable limits clause | s.1 - law must be demonstrably justified in society (address pressing issue rationally with minimal impairment) |
| notwithstanding clause | s.33 - government can override the charter (only in best interest of society/economy - overuse defeats spirit of charter) |
| formal equality | everyone treated equally |
| substantive equality | equity - everyone treated according to needs / considering other factors |
| Indigenous law | complex, restitutional, reconciliation, banishment - now focuses on land + treaties |
| aboriginal law | s.35 - treaty rights codified |
| comity | courts stick together! |
| wet'suwet'en case | state has a duty to consult + accommodate Indigenous people when land development is concerned |
| problem with land treaty codified | strictly legalistic interpretation puts burden of proof on Indigenous communities to 'prove they have rights to the land' |
| parliamentary sovereignty | laws must be followed + applied by court according to laws intent |
| textualism | ordinary meaning |
| intentionalism | purposive analysis |
| improvement of eyewitness evidence | double blind test |
| improvement of forensics | DNA lab accreditation |
| improvement of interrogations | more empathetic technique, regulations around conditions |
| improvement of jailhouse informant testimony | no incentives |
| improvement of defense council | discovery rights, considering how pleas undermine reliability |
| judicial review key points | legality - legal authority, reasonable decision, fair process |
| appeal key points | correctness - errors of fact and/or law |
| de facto | crown can assert power when bounds are unclear/vague |
| law - jurist perspective | reasonable & predictable rules based on precedent and backed by state |
| law - sociological perspective | construct of 'order', coercive power |
| law - society perspective | steps in when social controls fail |
| key assumptions in legal studies | legal system is not autonomous: legal decisions impact other aspects of society, society impacts law, and law is reflective of society |
| tenants of critical legal studies | law is: a key factor in inequality, politics, ideological, indeterminate, and legal education enhances student passivity |
| legal education | enhances student passivity & reproduction of inequality |
| LAW IS I... | ideological, indeterminate |
| LAW IS A KEY FACTOR IN... | inequality |
| LAW IS P... | politics |
| WHAT IS LAW? Law is established by... | a political body |
| WHAT IS LAW? Law is enforced by... | coercion / threats of punishment, agencies with authority |
| WHAT IS LAW? Law is representative of... | state (& therefore people)'s interests |
| WHAT IS LAW? Law is L.... | legitimate |
| WHAT IS LAW? Law is a codified... | form of social control |
| WHAT IS LAW? Law is symbolic of... | state power |
| FUNCTIONS OF LAW: Maintain... | social control & order |
| FUNCTIONS OF LAW: Dispute... | resolution |
| FUNCTIONS OF LAW: Be an instrument... | of social change |
| FUNCTIONS OF LAW: R&D | Uphold rights, defend duties |
| FUNCTIONS OF LAW: Communicate... | moral standards & ideology |
| true crimes | predatory crimes that are inherently wrong/harmful |
| mala in se | true crimes |
| regulatory offenses | protect public interests by setting minimum standards (traffic laws) |
| mala prohibita | regulatory offenses |
| REGULATORY LAW: Absolute liability | prove occurrence HAPPENED beyond reasonable doubt |
| REGULATORY LAW: Strict liability | prove (lack of) due diligence / reasonable care |
| REGULATORY LAW: Mens rea | prove intent |
| RULE OF LAW: SCOPE | all come under the rule of law |
| RULE OF LAW: CHARACTER | transparency & legibility of law for all |
| RULE OF LAW: INSTITUTION | independent judiciary, written laws, right to fair trial |
| alternate dispute resolution methods | mediation, arbitration, adjudication |
| administrative tribunals | regulatory bodies with power delegated to them and authority derives from statutes |
| LAWYERS ARE: Representatives of clients | must advise, advocate, negotiate |
| LAWYERS ARE: Officers of legal system | must act within law, behave legitimately |
| LAWYERS ARE: Public citizens | must make legal system accessible, fulfill civic/public duties |
| legal monopoly | bar associations control provision of legal services & have authority over who practices law |
| trial penalty | inadvertently being punished (giving up right to trial in plea bargain) |
| jumping | judge interrupts plea bargain process when there is an abuse of power/process |
| repudiation of plea because of abuse of power | because sentence is illegal, prosecutor misled someone, public interest was de-prioritized |
| plea bargain advantages | shorter + cheaper than trials, certain outcome |
| plea bargain duties (crown) | consult victims + explain need for plea |
| plea bargain duties (defense) | explain options of plea clearly to accused |
| CROWN LAWYERS should... | represent public interest, seek truth + fair trial, only pursue arguments they believe in, present evidence and disclose asap |
| DISCLOSURE is different than evidence | it extends past an appeal, includes: warrants, charging documents, witness statements, etc. |
| ETHICAL NORMS of lawyers... | partisanship (trustable, aware of imbalance of power), competence (diligent, efficient, accepts cases ONLY IN own area of expertise), loyalty (clients interests above all else), candor (open, honest, does not mislead) |
| partisanship | lawyer should be trustworthy and aware of the imbalance of power |
| competence | lawyer should be diligent, efficient, and only accept cases in their area of knowledge |
| loyalty | lawyer should prioritize their clients interests above all else and avoid conflicts of interest |
| candor | lawyer should be open, honest, and not mislead or make bold assurances |
| strict confidentiality | all information from client coming into possession while fulfilling professional duties has STRICT CONFIDENCE in hands of attorney |
| confidentiality can be waived by... | a client waiver or a court order |
| solicitor-client privilege | ESSENTIAL NOT ABSOLUTE. advice in a legal context - part of continuum of communication |
| things conflicting with solicitor-client privilege | evidentiary rule & substantive rule of law (e.g. tax act requiring disclosure) |
| solicitor-client privilege CAN be disturbed if... | illegal communication, communication not intended to be confidential, public safety risk, innocence at stake (e.g. lawyer is accused, info to raise reasonable doubt) |
| REMOVING EVIDENCE - LEGAL | taking possession of an item to defend the client |
| REMOVING EVIDENCE - ILLEGAL | temporarily removing evidence of a crime to prevent seizure by police |
| downsides of 'obstruction of justice' crime | DV victims recanting statements can be charged, not investigated in political cases, language/tone/context can make some innocent remarks risky (chargeable!) |
| inculpatory evidence | would incriminate |
| value consensus model | conservative, based on common values that lend legitimacy to the government |
| value consensus model TENANTS | 1. basis on unifying set of values 2. values internalized through socialization 3. status through conformity 4. law serves all equally 5. disorder/crime is a result of improper socialization |
| value consensus model CRITIQUE | modern society IS NOT HOMOGENEOUS |
| pluralistic/interests model | centrist/liberal, competing interests and no agreed right/wrong BUT an agreed dispute resolution mechanism |
| pluralistic/interests model TENANTS | social order evolves through cooperation, legal system is value neutral |
| coercion/conflict model | radicalist, social order is result of power/coercion (conflict between groups with/without political power) |
| coercion/conflict model TENANTS | dissension, competition for scarce resources, class conflict, powerful impose their will via law |
| legal pluralism | multiple legal systems (formal + informal) |
| ontario superior court is governed by... | rules of civil procedure |
| ontario superior court deals with... | all civil proceedings (personal injury, bankruptcy, wills, etc.) |
| divisional court (branch of supreme court) deals with... | judicial review, statutory civil appeals, civil appeals >$50,000 |
| small claims court deals with... | cases <$35,000 |
| STEP 1 IN CIVIL LITIGATION | EARLY STAGE - uncover as much info as possible, identify issues, inform both parties |
| STEP 2 IN CIVIL LITIGATION | PRETRIAL PROCEDURES - file a writ of summons/action, plaintiff fills out motion, defendant is served (in person, 20 days to respond) |
| STEP 3 IN CIVIL LITIGATION | MAKING A STATEMENT OF CLAIM - $243! plaintiff outlines allegations, damages, supporting documents, and defendant preps their counter claim / defense |
| STEP 4 IN CIVIL LITIGATION | PRETRIAL MOTIONS - lawyers may dismiss proceedings, change venue, request further info |
| STEP 5 IN CIVIL LITIGATION | DISCOVERY - lawyers examine documents, testimony + questioning happens and is transcribed as evidence |
| refusing to answer in questioning in a civil litigation case | INCULPATORY because court can infer true/false themselves (for the worse!) |
| (CIVIL() rejecting offer to settle pre-trial is viewed... | as UNREASONABLE by the court, may lead to you paying more in the end (as a punishment for being unreasonable) |
| civil litigation type that gets a jury | personal injury cases! |
| civil litigation trials | heard largely by judges, strict rules of evidence (NO HEARSAY) |
| enforcement of civil punishments | winner takes steps to get $$ (wages, assets, bank accounts can be garnished) - MUST NOT LEAVE ANY PARTY DESTITUTE |
| lifespan of civil case | 5 year limit (face dismissal or accept a reasonable offer!) |
| PYRRHIC VICTORY | reckless & pernicious pursuit - won at too great a cost/harm |
| critique of civil system | lack of access (low income groups disadvantaged - waiver programs do exist, but they take TIME and are lengthy/difficult) |
| injunction | CEASE BEHAVIOUR - used by corporations to stop protests and give themselves time to strategize |
| tort law civil lawsuits | private wrongs & code law |
| tort law is... | seeking compensation from another party before a judge, protecting the individual, used in absence of a contract |
| a breach of legal duty (of care) with liability for damages | tort law |
| modified objective standard | what a reasonable person would do (tort law) |
| intentional torts | punish deliberate, wilful, conscious acts - only the ACT must be intentional (intentions regarding the results of the actions don't matter, act is enough to punish) |
| negligent torts | inadvertent (not wilful/deliberate) acts (or INACTION) that are still culpable |
| most common type of tort | negligent torts |
| five elements to prove negligent tort | duty of care, fault/breach, loss/damage/injury, causation, contributory negligence |
| contributory negligence (negligent tort) | no prejudicial conduct/fault by victim |
| causation (negligent tort) | was injury directly caused by defendant? |
| criminal negligence | beyond reasonable doubt: marked, substantial departure from reasonable + expected standard of care |
| civil negligence | balance of probabilities, a breach of care |
| novus actus | intervening act that disproves causation (like an attempt to prevent/help/fix situation that shows a level of care) |
| defenses to torts | accident, no control over incident, unavoidable, contributory negligence from victim, due care was exercised, necessity, lack of causal connection |
| DEFENSES TO TORTS: ACCIDENT | one could not reasonably foresee the danger |
| DEFENSES TO TORTS: NO CONTROL | one had no authority/ability/duty in the situation |
| DEFENSES TO TORTS: UNAVOIDABLE | one could not have avoided the event even with care & skill |
| DEFENSES TO TORTS: CONTRIBUTORY NEGLIGENCE | victim behaved in a risky manner / negatively contributed to the situation |
| DEFENSES TO TORTS: DUE CARE EXERCISED | one DID exercise a reasonable amount of due care |
| DEFENSES TO TORTS: NECESSITY | one had to do it out of self preservation or preservation of others |
| DEFENSES TO TORTS: LACK OF CAUSAL CONNECTION | disconnect between defendant's actions and victim's injuries/losses |
| voluntary assumption of risk | victim is disqualified from seeking damages (courts are reluctant to use this) |
| remedies | damages (financial reward/compensation) |
| special damages | can be calculated precisely (e.g. damage to car - how much it costs to repair) |
| punitive damages | to deter and make an example of someone who OFFENDED THE COURTS SENSE OF DECENCY! |
| general damages | difficult to determine costs behind the loss (e.g. an arm, a child) |
| estoppel | no contradicting yourself (contract law) |
Created by:
cheapnmeowing