So now that my junior year english class is coming to an end, my blog will also come to a close. This week instead of feeding you information I will present to you an outline of my final presentation for my final exam/ final touch to my blog.
Slide 1: Intro- I will briefly explain why I chose law to be my focus on this project and if I would go back and choose a different career path to focus on.
Slide 2: I will go over the schooling it takes to have a law career and not necessarily become a lawyer because through my time in research I have discovered that in order to become a lawyer, it takes a whole lot more than just a law degree.
Slide 3: I will briefly explain the 2 most important topics of someone's law career (Natural Law and Legal History)
Slide 4/5: Will mainly be about the history and things that I learned throughout this project.
Slide 6: I will talk about a famous lawyer who really stood out to me. Also a famous court case that i found interesting that they took part in.
Slide 7: I will talk more about the interview that I did with my neighbor who just so happened to be a lawyer.
Slide 8: I will then end with questions and hopefully my neighbor will have given me a few resources from when he was a law student to show the class.
Friday, May 13, 2016
Thursday, May 5, 2016
blog 8
Before I get started on information I will be putting into my presentation and as I begin to wrap up my blog I wanted to have a little fun with this blog. With that being said this blog is all about court. The courtroom, the positions, everything there is to know about being in a courtroom! Hopefully the only time you are in a courtroom is when you are doing you job...
So the most famous court cases/trials had to take place somewhere right? Well they did and all the drama was packed inside a courtroom. There is not a "most famous" court room or anything it all just depends on what happens in the room.
Usually people in a courtroom during a case...
The Parties
The people or entities who are directly involved in a lawsuit are called parties. They are plaintiffs (those who are suing in a civil case) or defendants (those being sued in a civil case or accused in criminal cases). The parties may be present at the counsel tables with their lawyers during the trial. Defendants in criminal cases have a constitutional right to be present at their trials. Specifically, the Sixth Amendment to the Constitution provides that"the accused shall enjoy the right . . . to be confronted with the witnesses against him." Parties in civil cases also have a right to attend their trials, but they often choose not to. (Evansberry)
Witnesses
Witnesses give testimony about the facts or issues in the case that are in dispute. During their testimony, they sit on the witness stand, facing the courtroom. Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff's witnesses, government witnesses, or defense witnesses. (Evansberry)
Lawyers
In the courtroom, the lawyers for each party will either be sitting at the counsel tables near the bench or be speaking to the judge, a witness, or the jury. Each lawyer's task is to bring out the facts that put his or her client's case in the most favorable light, but to do so using approved legal procedures. In a criminal case, the government's lawyer is called the prosecutor -- usually an assistant district attorney (state court cases) or assistant U.S. attorney (federal court cases). Criminal defendants may be represented by a public defender, a lawyer appointed by the court, or a private attorney hired by the defendant. In a civil case, parties wanting a lawyer to represent them must hire their own lawyer. (Evansberry)
The Judge
The judge presides over court proceedings from the "bench," which is usually an elevated platform. The judge has five basic tasks:
to preside over the proceedings and see that order is maintained;
to determine whether any of the evidence that the parties want to use is illegal or improper;
in jury trials, to give the jury instructions about the law that applies to the case and the standards it must use in deciding the case before it begins its deliberations about the facts in the case;
in "bench" trials (cases tried before the judge, without a jury), to determine the facts and decide the case; and
to sentence convicted criminal defendants. (Evansberry)
The Jury
The group of people seated in the boxed-in area on one side of the courtroom is the jury. The judge decides the law in the case and instructs the jury on the law. It's the jury's role to decide the facts in the case, and to apply the law on which the judge has instructed it in order to reach a verdict. In cases where the evidence conflicts, it's the jury's job to resolve the conflict and decide what really happened. For example, in a criminal case, the jury might listen to the testimony of a witness who claims she saw the defendant commit the crime and then listen to the testimony of the defendant's friend, who claims the defendant was with him in another part of town when the crime was committed. It's the jurors' job to decide who is telling the truth. (Lashly)
Court Reporter
The court reporter sits near the witness stand in the courtroom and records everything that is said during the trial (or introduced into evidence) by typing it on a stenographic machine or by making an electronic sound recording. This becomes the official record of the trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or requests a transcript. Court reporters don't work only in the courtroom. They also record depositions in attorneys' offices and some conferences in judges' chambers.
The great majority of court reporters use a stenotype, a machine that translates keystrokes into symbols that correspond to the spoken word. Some use shorthand and a few use a steno mask, repeating everything that is said in the courtroom into a mask connected to a tape recorder, and transcribing it later. Finally, electronic sound recording uses microphones placed in the courtroom to record proceedings on a multi-track tape, which is monitored by a clerk's office employee (who need not be trained as a court reporter). (Lashly)
Court Interpreter
In cases in which a party or witness does not speak or understand English, his or her testimony may be interpreted by a court interpreter, whose job is to present a verbatim rendition of the testimony. It is the English rendition by the interpreter that becomes part of the official court record. The court interpreter's job is to interpret exactly what the witness or defendant says, without commenting on it, even if the interpreter believes the person is lying. If a witness doesn't understand a question, the interpreter may not use his or her own words to explain. Rather, the interpreter translates the witness's request for explanation to the attorney (or whoever asked the question), and that person must explain or rephrase what he or she said. The interpreter then translates that explanation or rephrasing for the witness. (Evansberry)
Courtroom Clerk
The courtroom clerk (sometimes called the courtroom deputy) is usually seated in the courtroom near the judge. The courtroom clerk administers oaths to witnesses and interpreters, takes care of records and exhibits, keeps minutes of proceedings, prepares judgment and verdict forms, and generally helps the judge keep the trial running smoothly. The courtroom deputy is usually employed by the office of the clerk of court. (Evansberry)
So here is the lay out....
SOURCES:
Lashly, Arthur V. "Who Are the Delinquents?" Junior-Senior High School Clearing House 8.7, Classroom Procedures (1934): 391-93. Who Are The People In Court. York County Pennsylvania, 3 Oct. 2002. Web. May-June 2004.
Evansberry, Dan S. "In the Courtroom: Who Does What? - FindLaw."Findlaw. Thomas Reuters, 8 Jan. 2012. Web. 06 May 2016.
So the most famous court cases/trials had to take place somewhere right? Well they did and all the drama was packed inside a courtroom. There is not a "most famous" court room or anything it all just depends on what happens in the room.
Usually people in a courtroom during a case...
The Parties
The people or entities who are directly involved in a lawsuit are called parties. They are plaintiffs (those who are suing in a civil case) or defendants (those being sued in a civil case or accused in criminal cases). The parties may be present at the counsel tables with their lawyers during the trial. Defendants in criminal cases have a constitutional right to be present at their trials. Specifically, the Sixth Amendment to the Constitution provides that"the accused shall enjoy the right . . . to be confronted with the witnesses against him." Parties in civil cases also have a right to attend their trials, but they often choose not to. (Evansberry)
Witnesses
Witnesses give testimony about the facts or issues in the case that are in dispute. During their testimony, they sit on the witness stand, facing the courtroom. Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff's witnesses, government witnesses, or defense witnesses. (Evansberry)
Lawyers
In the courtroom, the lawyers for each party will either be sitting at the counsel tables near the bench or be speaking to the judge, a witness, or the jury. Each lawyer's task is to bring out the facts that put his or her client's case in the most favorable light, but to do so using approved legal procedures. In a criminal case, the government's lawyer is called the prosecutor -- usually an assistant district attorney (state court cases) or assistant U.S. attorney (federal court cases). Criminal defendants may be represented by a public defender, a lawyer appointed by the court, or a private attorney hired by the defendant. In a civil case, parties wanting a lawyer to represent them must hire their own lawyer. (Evansberry)
The Judge
The judge presides over court proceedings from the "bench," which is usually an elevated platform. The judge has five basic tasks:
to preside over the proceedings and see that order is maintained;
to determine whether any of the evidence that the parties want to use is illegal or improper;
in jury trials, to give the jury instructions about the law that applies to the case and the standards it must use in deciding the case before it begins its deliberations about the facts in the case;
in "bench" trials (cases tried before the judge, without a jury), to determine the facts and decide the case; and
to sentence convicted criminal defendants. (Evansberry)
The Jury
The group of people seated in the boxed-in area on one side of the courtroom is the jury. The judge decides the law in the case and instructs the jury on the law. It's the jury's role to decide the facts in the case, and to apply the law on which the judge has instructed it in order to reach a verdict. In cases where the evidence conflicts, it's the jury's job to resolve the conflict and decide what really happened. For example, in a criminal case, the jury might listen to the testimony of a witness who claims she saw the defendant commit the crime and then listen to the testimony of the defendant's friend, who claims the defendant was with him in another part of town when the crime was committed. It's the jurors' job to decide who is telling the truth. (Lashly)
Court Reporter
The court reporter sits near the witness stand in the courtroom and records everything that is said during the trial (or introduced into evidence) by typing it on a stenographic machine or by making an electronic sound recording. This becomes the official record of the trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or requests a transcript. Court reporters don't work only in the courtroom. They also record depositions in attorneys' offices and some conferences in judges' chambers.
The great majority of court reporters use a stenotype, a machine that translates keystrokes into symbols that correspond to the spoken word. Some use shorthand and a few use a steno mask, repeating everything that is said in the courtroom into a mask connected to a tape recorder, and transcribing it later. Finally, electronic sound recording uses microphones placed in the courtroom to record proceedings on a multi-track tape, which is monitored by a clerk's office employee (who need not be trained as a court reporter). (Lashly)
Court Interpreter
In cases in which a party or witness does not speak or understand English, his or her testimony may be interpreted by a court interpreter, whose job is to present a verbatim rendition of the testimony. It is the English rendition by the interpreter that becomes part of the official court record. The court interpreter's job is to interpret exactly what the witness or defendant says, without commenting on it, even if the interpreter believes the person is lying. If a witness doesn't understand a question, the interpreter may not use his or her own words to explain. Rather, the interpreter translates the witness's request for explanation to the attorney (or whoever asked the question), and that person must explain or rephrase what he or she said. The interpreter then translates that explanation or rephrasing for the witness. (Evansberry)
Courtroom Clerk
The courtroom clerk (sometimes called the courtroom deputy) is usually seated in the courtroom near the judge. The courtroom clerk administers oaths to witnesses and interpreters, takes care of records and exhibits, keeps minutes of proceedings, prepares judgment and verdict forms, and generally helps the judge keep the trial running smoothly. The courtroom deputy is usually employed by the office of the clerk of court. (Evansberry)
So here is the lay out....
SOURCES:
Lashly, Arthur V. "Who Are the Delinquents?" Junior-Senior High School Clearing House 8.7, Classroom Procedures (1934): 391-93. Who Are The People In Court. York County Pennsylvania, 3 Oct. 2002. Web. May-June 2004.
Evansberry, Dan S. "In the Courtroom: Who Does What? - FindLaw."Findlaw. Thomas Reuters, 8 Jan. 2012. Web. 06 May 2016.
Thursday, April 28, 2016
blog 7
Natural Law
Throughout one's law career Natural Law, just as Modern Law, is a very important part of the learning process.
Natural law is a philosophy that certain rights or values are inherent by virtue of human nature and universally cognizable through human reason. Historically, natural law refers to the use of reason to analyze both social and personal human nature to deduce binding rules of moral behavior.
The term "natural law" is ambiguous. It refers to a type of moral theory, as well as to a type of legal theory, but the core claims of the two kinds of theory are logically independent. It does not refer to the laws of nature, the laws that science aims to describe. According to natural law moral theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings and the nature of the world. While being logically independent of natural law legal theory, the two theories intersect. (Kernermen)
(Divine Natural Law
Proponents of divine natural law contend that law must be made to conform to the commands they believe were laid down or inspired by God, or some other deity, who governs according to principles of compassion, truth, and justice. These naturalists assert that the legitimacy of any enacted human law must be measured by its consonance with divine principles of right and wrong. Such principles can be found in various Scriptures, church doctrine, papal decrees, and the decisions of ecclesiastical courts and councils. Human laws that are inconsistent with divine principles of morality, naturalists maintain,are invalid and should neither be enforced nor obeyed. St. Thomas Aquinas, a theologian and philosopher from the thirteenth century, was a leading exponent of divine natural law.) (Harper Collins)
Two Kinds of Natural Law Theory
At the outset, it is important to distinguish two kinds of theory that go by the name of natural law. The first is a theory of morality that is roughly characterized by the following theses. First, moral propositions have what is sometimes called objective standing in the sense that such propositions are the bearers of objective truth-value; that is, moral propositions can be objectively true or false. (Kernemen)
The second thesis constituting the core of natural law moral theory is the claim that standards of morality are in some sense derived from, or entailed by, the nature of the world and the nature of human beings. St. Thomas Aquinas, for example, identifies the rational nature of human beings as that which defines moral law: "the rule and measure of human acts is the reason, which is the first principle of human acts". On this common view, since human beings are by nature rational beings, it is morally appropriate that they should behave in a way that conforms to their rational nature. (Kernermen)
Morality
principles concerning the distinction between right and wrong or good and bad behavior (ethnicity)
But there is another kind of natural law theory having to do with the relationship of morality to law. According to natural law theory of law, there is no clean division between the notion of law and the notion of morality. Though there are different versions of natural law theory, all subscribe to the thesis that there are at least some laws that depend for their "authority" not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity. The idea that the concepts of law and morality intersect in some way is called the Overlap Thesis. (American Heritage)
Overlap Thesis
The overlap thesis is all of the natural laws such as original natural law, historical natural law, biblical natural law, divine natural, etc combined together into one statement when figuring if someone did or did not break the law. The main thing in law student rookies is the core or the origin of where everything came from. In most of my readings I have studied the court cases and positions and everything you would think to come out of law school but there are many things such as natural law that I never nor would I have given any thought to. It is all about going back to where everything came from and getting facts- once you have solid facts, you cannot go wrong!
So study study study the origin of law and everything the law went through and how it developed over time before trying to solve any modern-day cases.
So study study study the origin of law and everything the law went through and how it developed over time before trying to solve any modern-day cases.
sources:
Random House Kernerman Webster's College Dictionary, © 2010 K Dictionaries Ltd. Copyright 2005, 1997, 1991 by Random House, Inc. All rights reserved.
HarperCollins Publishers 1991, 1994, 1998, 2000, 2003, 2006, 2007, 2009, 2011, 2014
blog 6
THE DAY HAS COME THAT YOU HAVE ALL BEEN WAITING FOR... IT IS INTERVIEW TIME!!!!!!!!!
This week I had the opportunity to interview an actual lawyer. His name is and he just moved in right next to me. Below I will have a video/recording of the interview or if you are unable to occupy that I will have a list of the questions and answers that I asked him.
Q/A
- How long have you been a lawyer?
- How long did it take you to become a lawyer?
- Where did you attend school?
- How many years of school did it take you to receive a law degree?
- Were all of the years in school worth it?
- What classes were mandatory?
- What classes are not mandatory but you would advise to take?
- Describe a lesson plan in the daily life of a law student.
- What was the most challenging thing about school?
- What has been your favorite part through this process?
- What has been your least favorite part through this process?
- What helped you choose with type of law to study/go into?
- What kind of law are you involved in?
- Where do you work?
- Did you ever intern anywhere?
- What was your first job (lawyer wise)
- Explain the process from your 4 yr college to law school to getting a job to now?
- What made you want to be a lawyer?
- What has been the craziest thing you have had to deal with?
- What does it mean/take to be a good lawyer?
- Do grades or class rank matter in school? Should you worry?
Here are some other interviews and just videos of advice about law school of other law students and lawyers... Enjoy! I will get back with you guys next week.
This video is a very broad video of a
simple layer of advice about law school.
This video may or may not bore you or put you to sleep but if you listen closely you can really hear some of the best advice on making it through the first year of law school. The first year of law school is the most important!
Sources-
Daily, Barbra S. "Cowgirl in the City: OCI -- Interview Questions Every Law Student Should Be Able to Answer." Cowgirl in the City: OCI -- Interview Questions Every Law Student Should Be Able to Answer. Cowgirl City, 29 Aug. 2012. Web. 15 Apr. 2016.
Veronad, Gregory. "Law Students." 15 Interview Questions for. Pillsbury Winthrop Shaw Pittman LLP, 31 May 2001. Web. 15 Apr. 2016.
Thursday, April 14, 2016
blog 5
Putting the word "law" into words...
.
the system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties. (Google's definition of law)
The reason I am spitting out all of the facts to you is that throughout my research I have come to the realization that the one thing that makes studying law difficult it the amount of information. There is SO much to the law. Legal history is very important. Throughout the multiple interviews that I have watched from current law students, they always go back to the term legal history. Legal history is the first lesson that is taught in law school becuase you have to study the origin of all laws, lawyers , and why/ how they came about before you learn about today's law. The definition is scratching the surface.
Legal History
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. (Kimper)
Facts of the case
Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.
Legal History
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. (Kimper)
- Social history, often called the new social history, is a broad branch of history that studies the experiences of ordinary people in the past. (Kimper)
Modern Law
With all of that being said and all the facts about history you can read the next step down the "important things to know ladder" is modern law. For example, what is the most recent and popular trial going on. Who is running it? If the case has been closed how did the defendant or executive win?
Here is what a lesson would look like in a classroom when studying legal history...
COURT CASE
Fisher vs. University of Texas:
Facts of the case
Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.
Question
Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?
Facts of the case
Current and former employees of Amgen, Inc. (Amgen) and Amgen Manufacturing, Limited (AML) participated in two employer-sponsored pension plans (the Plans). The Plans included holdings in the Amgen Common Stock Fund which held only Amgen common stock. The plaintiffs were a group of employees who filed a class action suit under the Employee Retirement Income Security Act (ERISA) against Amgen, AML, Amgen’s board of directors, and the Fiduciary Committees of the Plans when the value of the Amgen common stock fell. The plaintiffs alleged that the defendants breached their fiduciary duties under ERISA by allowing the participants to purchase and hold Amgen stock while knowing its price was artificially inflated. The district court granted the defendants’ motion to dismiss, and the plaintiffs appealed. The United States Court of Appeals for the Ninth Circuit reversed and remanded on the grounds that the district court did not properly apply the “presumption of prudence” as illustrated in Quan v. Computer Science Corp. The presumption of prudence explains that the fiduciary who invests assets in the employer’s stock is entitled to a presumption that they acted consistently with ERISA. The court found that even if the presumption of prudence did apply, the plaintiffs had sufficiently argued a violation of the defendant’s fiduciary duty. On remand, the district court again dismissed the action and the Court of Appeals again reversed. The Supreme Court granted certiorari and vacated and remanded the case in light of its decision in Fifth Third Bancorp v. Dudenhoeffer, which held that ERISA fiduciaries who administer employee stock ownership plans are not entitled to a presumption of prudence but are “subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund’s assets.” The appellate court again reversed the dismissal of the complaint on the same grounds.
Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?
This is what would be given before/after the case is closed and not only would a law student have to dig up every single law that relates to any terms of this case situation, but also related it to legal history; which in this case question it gives you a head start by telling you it is somewhere in the lines of the Fourteenth Amendment.
If you would like some practice here are some already solved cases that you can research and pick out the laws and legal history of or visit the last link I have given you down below under sources.
Enjoy!!!!!!
Americold Realty Trust v. Conagra Foods, Inc.
Americold Realty Trust v. Conagra Foods, Inc.
Facts of the case
The plaintiffs, food distributors including Conagra Foods Inc. and Kraft Foodservice, sued Americold Logistics LLC and Americold Realty Trust (Americold) in state court for a breach of contract stemming from a dispute regarding liability for a warehouse fire. Americold sought to remove the case to federal court based on diversity jurisdiction because of the diversity of the trust’s board. No party challenged the propriety of the removal, and the district court addressed the case solely on its merits. Both parties moved for summary judgment, and the district court found in favor of the defendant.
On appeal, the U.S. Court of Appeals of the Tenth Circuit raised the issue of potentially improper removal and asked the parties to submit briefs addressing the issue. The appellate court held that Americold did not meet its burden to demonstrate that diversity jurisdiction was appropriate because the inquiry must extend to the trust’s beneficiaries, not just the trustees.
Question
Is the citizenship of a trust for the purposes of diversity jurisdiction based on the diversity of the trust’s beneficiaries as well as the trustees?
The plaintiffs, food distributors including Conagra Foods Inc. and Kraft Foodservice, sued Americold Logistics LLC and Americold Realty Trust (Americold) in state court for a breach of contract stemming from a dispute regarding liability for a warehouse fire. Americold sought to remove the case to federal court based on diversity jurisdiction because of the diversity of the trust’s board. No party challenged the propriety of the removal, and the district court addressed the case solely on its merits. Both parties moved for summary judgment, and the district court found in favor of the defendant.
On appeal, the U.S. Court of Appeals of the Tenth Circuit raised the issue of potentially improper removal and asked the parties to submit briefs addressing the issue. The appellate court held that Americold did not meet its burden to demonstrate that diversity jurisdiction was appropriate because the inquiry must extend to the trust’s beneficiaries, not just the trustees.
Question
Is the citizenship of a trust for the purposes of diversity jurisdiction based on the diversity of the trust’s beneficiaries as well as the trustees?
Amgen, Inc. v. Harris
Facts of the case
Current and former employees of Amgen, Inc. (Amgen) and Amgen Manufacturing, Limited (AML) participated in two employer-sponsored pension plans (the Plans). The Plans included holdings in the Amgen Common Stock Fund which held only Amgen common stock. The plaintiffs were a group of employees who filed a class action suit under the Employee Retirement Income Security Act (ERISA) against Amgen, AML, Amgen’s board of directors, and the Fiduciary Committees of the Plans when the value of the Amgen common stock fell. The plaintiffs alleged that the defendants breached their fiduciary duties under ERISA by allowing the participants to purchase and hold Amgen stock while knowing its price was artificially inflated. The district court granted the defendants’ motion to dismiss, and the plaintiffs appealed. The United States Court of Appeals for the Ninth Circuit reversed and remanded on the grounds that the district court did not properly apply the “presumption of prudence” as illustrated in Quan v. Computer Science Corp. The presumption of prudence explains that the fiduciary who invests assets in the employer’s stock is entitled to a presumption that they acted consistently with ERISA. The court found that even if the presumption of prudence did apply, the plaintiffs had sufficiently argued a violation of the defendant’s fiduciary duty. On remand, the district court again dismissed the action and the Court of Appeals again reversed. The Supreme Court granted certiorari and vacated and remanded the case in light of its decision in Fifth Third Bancorp v. Dudenhoeffer, which held that ERISA fiduciaries who administer employee stock ownership plans are not entitled to a presumption of prudence but are “subject to the same duty of prudence that applies to ERISA fiduciaries in general, except that they need not diversify the fund’s assets.” The appellate court again reversed the dismissal of the complaint on the same grounds.
Question
Did the plaintiffs in this case “plausibly allege” a breach of the duty of prudence?
DIRECTTV, Inc. v. Imburgia
Facts of the case
On September 7, 2008, Amy Imburgia filed a class action lawsuit against DIRECTV, Inc. (DIRECTV), and argued that DIRECTV had improperly charged early termination fees to its customers. In 2011, the U.S. Supreme Court decided AT&T Mobility LLC v. Concepcion, in which the Court held that the Federal Arbitration Act preempted California precedent that had previously held that, in certain circumstances, arbitration clauses in customer agreements were unenforceable. Less than one month after that decision, DIRECTV moved to stay or dismiss the plaintiffs’ case and compel arbitration, which DIRECTV argued it had not done previously because it thought the arbitration clause in its customer agreement was void under California precedent. The trial court denied the motion and the California Court of Appeal for the Second District affirmed by holding that the language of the customer agreement subjected the arbitration clause to state law.
Question
Did the California Court of Appeal err in holding that a reference to state law in an arbitration clause required the application of that state law despite its preemption by the Federal Arbitration Act?
Be sure to write your own conclusions on each case, lawyers can have opinion too.
S O U R C E S
https://www.oyez.org/cases/2015
"Fisher v. University of Texas." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 14, 2016. <https://www.oyez.org/cases/2015/14-981>
"Americold Realty Trust v. Conagra Foods, Inc., et al.." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 14, 2016. <https://www.oyez.org/cases/2015/14-1382>
"Amgen, Inc. v. Harris." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 14, 2016. <https://www.oyez.org/cases/2015/15-278>
"DIRECTV, Inc. v. Imburgia." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 14, 2016. <https://www.oyez.org/cases/2015/14-462>
Monday, March 14, 2016
blog 4
HISTORY
Today I will be discussing the history of Law on a very broad basis. First thing is first lets start with the beginning of course.
What is the origin of law?
The Origin of Law is the background to our diverse legal systems today, and stretches back from a time before man was ableat he wanted to live by. (Graham)
Where does the law come from?
In the United States, the Constitution is the ultimate source of the law. However, it was never designed to address every specific legal question. Within the boundaries of the Constitution, there are two primary sources of law, common law and statutory law. This law comes from the judicial branch.
(Graham)
Constitution of United States of America 1789 (rev. 1992)
"We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America"
Who invented the first law?
By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first law code, consisting of casuistic statements ("if... then..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone.
Babylonian Law? The Code of Hammurabi refers to a set of rules or laws enacted by the Babylonian King Hammurabi. Around the 23rd Century BC, the Akkadian and Sumerian peoples around the Mesopotamian region eventually developed into the Babylonians, which provides history with a large number of examples of ancient laws, and in fact were so comprehensive that the majority of laws and legal procedures that most cultures of today have, including contracts, deeds, bonds, and judges, were represented. Babylonian Law notes the first instances of marriage and family laws known to have existed, among other common laws still in existence today (Graham)
Where does common law come from?
Common law originated during the Middle Ages in England, and from there was propagated to the colonies of the British Empire, including India, the United States (both the federal system and 49 of its 50 states) (Tani)
When people think of ancient law they think of the Magna Carta or indeed the 10 Commandments, but evidence shows that the theory of law was understood and implemented somewhat for a very long time prior to that, and some form of justice system prevails amongst even the least developed of cultures alive today, and in fact, there are still some basic laws in western society whose origins can be traced back to Roman Times. (Tani)
Roman EmpireEdit
Roman law was heavily influenced by Greek teachings. It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire. Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost not recognized. Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civills. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." (Tani)
Sources:
Graham, Gray R. "Law and the Rule of Law." The Judicial Learning Center. Pheonix Design, 3 Sept. 2015. Web. 14 Apr. 2016.
Tani, Karen. "Legal History Blog." Legal History Blog. University of Pennsylvania, 11 Jan. 2015. Web. 14 Apr. 2016.
Henrey, Wilson H. "Relation of History." View Content. Nebraska State Historical Society Page, 1887. Web. 2008.
Monday, March 7, 2016
blog 3
Moving Forward
Hello fellow bloggers! Today is going to be a little different. I am going to discuss with you why and for what reasons i started this blog and why I chose law as my blogging choice.
About me
I was born in Kentucky and then for parental job reasoning moved to the great state of Tennessee right outside of Nashville, the city of music. I have an older brother who still to this day has an anti women and extreme argumentative attitude towards everything. By everything I mean everything. My parents are the greatest blessing of all. Hard-working, loving, caring, and smart just about sums them up in one sentence. The funny thing is, they are both in the military. Yes, I have grown up in a military home. So this, of course, leads to always hearing about their latest problems at the base, promotions, missions, and obviously the government side of things whether it was legislative or law related, it was my childhood.
Why Why WHY???
Why did I create this blog you ask? Well like I said I grew up in a strictly military home. Therefore I heard about the unfairness it brought yet how awesome it is to be able to say you have worked in that certain field. It really is all related. Government, Economics, The Law, Military, people, and being the president even. How so? Well the president is in charge of it all obviously, the government has to go by the law which then leads to people and what they can or cannot do.
Moving on it always sparked inside of me to read into what was going on around the world since I was only getting a brief discussion of it at the dinner table. The most common things I saw were trials about men who hurt women, bombings where they do not plead the victim guilty, or even just general television like Judge Judy. The list goes on and on. I thought to myself how could this be possible? How could our world revolved to this? And at that moment my friends is when I realized I wanted to make this world fair and help people prove their innocence or help put people who belonged behind bars, behind them. Which soon lead to the idea of being a lawyer, because what better way to reward the privileged?
So when this idea came about was the age where people started asking me what I wanted to be when I grew up and i would respond with "Well I actually want to be a lawyer" and I would receive this look of shock mixed with a you're crazy look. Not to worry that only made me want to accomplish my goal even more.
So when this idea came about was the age where people started asking me what I wanted to be when I grew up and i would respond with "Well I actually want to be a lawyer" and I would receive this look of shock mixed with a you're crazy look. Not to worry that only made me want to accomplish my goal even more.
Why Why Why The Blog?
We all know that becoming a lawyer is one of the hardest things one could do in a lifetime and no one can know everything about the law. There is so much to it. So back to my blog. This blog is to help future lawyers and law students like I have stated countless times. To try to make law school easier by gathering information, ideas, or shortcuts if you will from experienced Lawyers who have been there done that. If someone once told you that you can't do it, I am here to try to justify that! Until next time everyone!
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