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201 Cards in this Set
- Front
- Back
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Function of Law |
maintain stability and permit change peacefully |
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Two Classifications of Law |
Substantive and Procedural |
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Substantive Law |
creates legal rights and duties |
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Procedural Law |
create rules for enforcing substantive laws |
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what type of law is hazing |
substantive and procedural sub: right and duty to report hazing and right not to be hazed pro: will be expelled if convicted of hazing |
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Public Law |
state sponsored laws |
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Private Law |
anything not concerning state or government |
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Civil Law Terms |
initiator: Plantiff sue defendant Liable |
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Criminal Law Terms |
initiator: Plantiff prosecute defendant guilty |
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Civil Requirements |
Burden of Proof Preponderance of the Evidence 51/49 more likely than not |
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Criminal Requirements |
Burden of Proof Beyond a Reasonable Doubt Higher Standard than civil |
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sources of Law |
Constitution Judicial Law Legislative Law Administrative Law |
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Judicial Law Courts |
decision made in a court room US Supreme Court- Appellant Court- Trial Court (not judged) State Court- Appellant Court- Trial Court |
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Legislative/Statutory Law Example |
ObamaCare |
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Judicial Law |
common law system or inquisitorial system |
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Judicial Law Ezample |
Roe vs Wade |
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US Common Law System: type and who initiates the litigation |
Adversarial System: people initiate litigation |
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Adversarial system only works if |
both sides are represented equally |
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Common Law Stare Decisis |
"let the decision stand"- look back to prior cases |
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Civil Law Questions |
who is liable how much are the damages |
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Criminal Law Questions |
Is this person guilty What is the punishment |
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Business Ethical Decision Questions |
what makes the most sense economically what does the law say what is the right thing to do |
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ethical fundamentlism |
belief of central authority, belief there is a guide to live daily life |
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ethical relativism |
no universal principle or set of principles by which to live daily life- opposite of ethical fundamentalism |
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situational ethics |
should put yourself in the shoes of another before judging them |
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utilitarianism |
greatest balance of pleasure of pain |
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utilitarianism cost benefit analysis |
weighing consequences Ford- Pinto Car Case (Gas Tank) |
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deontological Ethics |
must make decisions based on a duty |
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Kant is known for |
Categorical Imperativism |
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Categorical Imperitivism |
ok to become a universal law respect rationality of all human beings and always treat them as an end and never treat them as a means only |
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Social Egalitarianism Rawls known for |
distributive justice |
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distributive justice |
make the decision to give the greatest opportunity/ benefit to the least advantaged |
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social egalitarianism should |
put on a veil of ignorance maintain minimum wage viewpoint of the employee and employer #2 |
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social egalitarianism example |
free community college |
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social egalitarianism tend to be more |
liberals |
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Libretarians |
responsibility of government is to protect private property rights |
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libertarians tend to be more |
conservative |
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Libertarian Robert Nozick Laws |
just original acquisition just transfer just recertification |
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libertarians want government to |
leave them alone |
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libertarian belief |
wealthy can give away money, but the wealthy has to decide to do it if the government taxes to obtain money for the people it is deemed unjust |
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social responsibility |
company has an additional responsibility to the community beside to make money disney extending benefits to gay couples |
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company's only responsibility is to |
make money |
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federal courts |
less then state courts (amount wise) appointed for life- was a huge incentive best lawyers get the job presidents can appoint younger justices with their viewpoint so the Pres's vies can live on |
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Federal Court Circuits |
11 in total + DC Circuit 1st- NE Corner 9th- Cali 8th- AR/Missouri 5th- Texas |
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district courts have |
judge, jury, baliff |
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Court of Appeals have |
no jury, no baliff |
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US Supreme Court is in |
DC |
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US Supreme Court needs |
2 states arguing appeal by right and writ of certiorari |
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discretionary review |
court decides to take on case- writ of certiorari |
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special courts |
bankruptcy, tax |
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State Court |
more than Federal Court judges are elected |
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Inferior Trial Court |
no jury Judge Judy |
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State Supreme Court example |
US Supreme Court |
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Court of Appeals example |
Appellate Court |
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District Court example |
(Inferior) Trial Courts |
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state courts |
(inferior) trail courts, appellant courts, and state supreme courts |
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alternative dispute resolution |
negotiation conciliation mediation arbitration |
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negotiation |
just between two parties disputing |
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conciliation |
independent 3rd party to help facilitate conversation |
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mediation |
independent 3rd party to help facilitate conversation often puts forth a solution no binding resolution most likely a former judge or lawyer |
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arbitration |
independent 3rd party to help facilitate conversation puts forth a solution with a binding resolution most likely a former judge or lawyer bound to apply same laws as a judge |
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arbitration options |
compensatory voluntary |
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compensatory |
employee sign a contract stating that if there is a dispute, must go to Arbitration, not a court |
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voluntary |
2 people disagree and both decide to go to Arbitration |
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litigation must decide between |
state or federal court system |
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litigation must have |
jurisdiction (authority to hear case) and venue (proper location for case) |
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two types of jurisdiction |
over the person over the subject matter |
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jurisdiction over the subject matter |
can court hear this type of case |
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jurisdiction over the subject matter federal jurisdiction(exclusive matter over bankruptcy, admirality, patent, etc) and concurrent jurisdiction for cases involving |
federal question- Henderson has freedom of speech diversity of citizenship (75k, plus parties, from different state, it can go to state court) |
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jurisdiction over the subject matter if a federal court lacks the subject matter jurisdiction, state courts have |
exclusive jurisdiction |
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jurisdiction over the person |
in peronam in rem quasi in rem |
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in personam |
only if person been to state |
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in rem |
property- if person own property in Montana and harm someone |
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quasi in rem |
property somewhere else to settle another case |
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OBU curfew is an example of a |
federal case |
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job of the jury |
decide the facts |
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job of the judge |
determine the law |
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pleadings |
formal documents filed with the court that give notice of the parties' claims and defenses |
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pleading complaint and summons |
state what the fuss is about |
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summons |
makes the defendant answer in 30 days or default to defendant is assumed |
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answer |
defense simply denies complaint |
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demurrer |
motion to dismiss |
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lots of money spent in the ________ phase of civil procedure |
discovery |
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discovery parts |
deposition interrogatories production of documents request for admissions |
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discovery deposition |
under oath statement before a court reporter and lawyer asks questions of other parties, not client their lawyer would be present |
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interrogatories |
same as deposition but written down |
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production of documents |
record of bills and documents of everyone |
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request for Admissions |
request the other party to admit dafault |
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motions and briefs |
judgment on the pleading motion for the summary judgement if no issue of material fact and dispute then the judge can decide case as matter of law |
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trial parts |
jury selection, opening statement, direct examination, cross examination, directed verdict, closing argument, jury instructions, verdict, appeal, enforcement |
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jury selection voir dire |
first time lawyer has to connect with jury |
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jury selection |
unlimited number of challenges for a cause predetermined number of peremptory challenges- need no specific reason to boot |
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opening statement |
both parties tell jury what will happen/ what they are planing to prove |
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direct examination |
lawyer asking question of client and their witnesses can ask direct questions |
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cross examination |
lawyer questions to other party |
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directed verdict |
move for dismissal |
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jury instructions |
judge gives jury instructions for jury to choose from |
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verdict |
motion for new trial motion for a judgement not withstanding the verdict remittitur |
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motion for a judgement not withstanding the verdict |
call for judge to ignore the jury and make own decision |
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remittitur |
ask judge to reduce the sentence |
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appeal |
appeal legal issue, not factual only to judge |
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enforcement |
garnishment- take % out of income to pay off dues to others imprisonment |
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garnishment if fail to respond, the law firm |
is issued with a need of garnishment, not their client |
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rulemaking |
process by which an administrative agency promulgates rules of law |
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legislative rules |
substantive rules issued by an admin agency under the authority delegated to it by the legislature |
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interpretative rules |
statements issued by an admin agency indicating how it construes its governing statutes |
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procedural rules |
rules issued by an admin agency establishing its orgazination, method of operation and rules of conduct of practice before the agency |
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enforcement |
process by which agencies determine whether their rules have been violated |
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adjunction |
formal methods by which an agency resolves disputes |
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judicial review |
acts as a control or check by a court on a particular rule or order on an admin agency |
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legislative control |
includes control over the agency's budget and enabling statue |
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control by executive branch |
includes the President's power appoint members of the agency |
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disclosure of information |
congressionally required public disclosure enhances oversight of agency activities |
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federal premonition |
first right of the federal government to regulate matters within its powers to the possible exclusion of state regulation |
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separation of powers |
allocation of powers among the legislative, executive and judicial branches of government |
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state action |
actions by governments as opposed to actions taken by private individuals |
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federalism |
the division of governing power between the federal government and the states |
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federal supremacy |
federal law takes precedence over conflicting state law |
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powers of government federal commerce power |
exclusive power of federal government to regulate commerce with other nations and among the states |
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powers of government state regulation commerce |
the commerce clause of the Constitution restricts the states' power to regulate activities if the result obstructs interstate commerce |
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powers of government federal fiscal power |
taxation and spending borrowing and coining money eminent domain |
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powers of government federal fiscal power taxation and borrowing |
the constitution grants congress broad powers to tax and spend ;such powers are important to federal government regulation of the economy |
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powers of government federal fiscal power borrowing and coining money |
enables the federal government to establish a national banking system and to control national fiscal and monetary policy |
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powers of government federal fiscal power eminent domain |
the government's power to take private property for public use with the payment of just compenastion |
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1st Amendment Clauses (1791) |
Establishment Free Expression |
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1st Amendment Abridging Freedom of |
speech content vs. conduct |
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1st Amendment Abridging Freedom of Speech example |
Abortion- can protest any time but not anywhere |
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1st Amendment Establishment/ Free Exercise example |
Hobby Lobby not follow ObamaCare |
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14th Amendment (1868) Clauses |
Equal Protection Due Process |
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14st Amendment example |
Middle Eastern Males to be searched- rational basis |
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All criminal law is |
statutory can not be prosecuted if there is no statute |
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crime |
an act that constitutes a wrong against society |
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actus reus |
wrongful physical act |
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mens rea |
mental state (intent or mental fult) |
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types of mens rea |
subjective- purposeful, knowing reckless objective- deviation from the standard of care that most reasonable people would abide by |
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liability without fault examples |
sell alcohol to a minor statutory rape |
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mala prohibita |
action not morally wrong but society declared it to be illegal |
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mala prohibita example |
driving on the left side of the road |
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public law example |
students and Henderson and 14th Amendment |
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mala in se |
action morally wrong |
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felony |
serious crime goes on record max: death, min: year in prison |
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misdemeanor |
less serious crime |
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violation |
least serious crime |
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tort |
private civil wrong or injury other than breach of contract for which a court will provide a remedy in the form of an action for damages |
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tort options from greatest to least |
inflicted intentionally inflicted negligently inflicted without fault
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tort inflicted intentionally example |
punch someone in the face bc you didnt like their shirt- meant to punch someone |
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tort inflicted negligently example |
person driving fast on the ice- didnt mean to cause an accident, but stupidity caused the accident |
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tort inflicted without fault example |
person own a tiger legally, with 80 ft wall, but tiger got out anyways and bit someone product liability- walmart sell lawn mower, still in box and it is defective |
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Negligence elements |
duty- act as a reasonable person breach- fail duty causation- fail to act cause damages/dumb decision damages-bad reaction |
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intentional tort elements |
act by the defendant intent causation damages |
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intentional tort elements intent |
specific general transfered intent |
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intentional tort elements intent specific |
know damages will happen to specific person |
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intentional tort elements intent general |
know thing will happen but not to who |
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intentional tort elements intent transfered intent |
different tort, same person same tort, different person different tort, different person |
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intentional tort elements damages |
required element for some, but not all intentional torts |
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intentional tort elements damages punishment types |
compensatory punative |
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intentional tort elements damages compensatory |
put injured person back to the place before accident |
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intentional tort elements damages punative |
meant to punish the wrong doer |
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intentional torts to the person |
battery assault false imprisonment intentional infliction of emotional distress |
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intentional torts to the person battery elements |
harmful or offensive contact to the plaintiff's person intent and causation direct or indirect |
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intentional torts to the person battery T or F do not have to be aware of battery for it to happen |
true |
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intentional torts to the person assault |
act by defendant creating 1) reasonable apprehension 2) of immediate harmful or offensive contact intent and causation distinguish fear from apprehension |
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intentional torts to the person assault T or F do not have to be aware of assault for it to happen to you T or F can happen over the phone |
false |
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_________ can negate apprehension |
words |
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intentional torts to the person false imprisonment |
act or omission that confines or restrains plaintiff to a bounded area intent and causation awareness of or be harmed by confinement |
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intentional torts to the person false imprisonment can be |
physical threats or actual action |
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intentional torts to the person intentional infliction of emotional distress |
extreme and outrageous conduct by defendant intentionally or recklessly done causation and damages 1) bystander cases- 9/11 a)present b)close relative c)Defendant knew above 2 facts |
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Intentional Torts to Property |
trespass to land trespass to chattels conversion |
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Intentional Torts to Property trespass to land |
physical invasion of another's land intent and causation |
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Intentional Torts to Property trespass to chattels |
act by defendant that interferes with plaintiff's right of possession intent, causation, damages |
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Intentional Torts to Property conversion |
act by defendant that interferes with plaintiff's right of possession intent, causation, damages interference is so serious that it warrants requiring defendant to pay chattel's full value |
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defamation |
false statement of or concerning published to a 3rd party |
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defamation details |
has to be against a specific person must be herd by another person, cant be alone with person for it to be defamation |
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defamation types |
libel slander |
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defamation libel |
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defamation slander |
spoken |
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defense to intentional tort |
consent right to defense of person or property defense of necessity discipline |
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defense to intentional tort consent example |
football practice and a mean coach |
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defense to intentional tort right to defense of person or property |
person come up with a baseball bat has right to use deadly force when life is threatened |
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defense to intentional tort defense of necessity |
if someone's house is on fire, have a right to go on their property with a water hose |
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defense to intentional tort discipline |
principle and a paddle? |
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negligence duty of care |
act as the reasonably careful person would act in the circumstances would see an appreciable risk of harm to others |
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negligence foreseeability |
specific harm not necessary to foersee |
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negligence foreseeability majority (by state) rule |
physical zone of danger |
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negligence foreseeability minority rule |
everyone is foreseeable if your action directly caused accident |
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negligence specific duties of care |
sudden emergency children professionals owners and occupiers of land |
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negligence specific duties of care sudden emergency |
reasonably careful person in same situation (assuming you did not cause the accident) |
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negligence specific duties of care chldren |
reasonably careful minor of same age and intelligence objective and subjective |
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negligence specific duties of care professionals |
ordinary professionals in good standing doctors |
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negligence specific duties of care owners and occupiers of land |
trespassers licensee invitee |
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negligence specific duties of care owners and occupiers of land trespasser |
no duty until presence is known they dont cause injury willfully |
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negligence specific duties of care owners and occupiers of land licensee |
warn of KNOWN dangers that licensee WOULDNT FIND |
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negligence specific duties of care owners and occupiers of land licensee examples |
party guest plumer
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negligence specific duties of care owners and occupiers of land invitee |
reasonable care to protect against dangerous conditions KNOWN OR UNKNOWN |
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negligence specific duties of care owners and occupiers of land invitee types |
public- State Capital business- Wal Mart |
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negligence specific duties of care owners and occupiers of land attractive nuisance |
reasonable care against dangerous conditions trespasser turns into invitee |
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negligence specific duties of care owners and occupiers of land attractive nuisance example |
pool in the front yard |
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Negligence breach of duty |
violation of statute custom or usage res ipsa loquitur |
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Negligence breach of duty res ipsa loquitur |
the thing speaks for itself permits the jury to infer both negligent conduct and causation |
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public law example |
between Henderson (state school) and student |
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private law example |
between me and OBU (private law) |
