Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
204 Cards in this Set
- Front
- Back
|
Law |
established by authority, society, or custom as a body or system of rules |
|
|
functions of law |
keeping peace, shaping moral standards, promotes social justice, etc. |
|
|
Three major grouping of legal systems |
romano-germanic civil law islamic law anglo-american common law |
|
|
Complexity |
federalism and global |
|
|
Romano-germanic |
legal system from Roman and Germanic practice that sets out national law codes |
|
|
French Civil Code |
1804, Code Napoleon based on jus commune general principles |
|
|
German Civil Code |
1896, based on jus commune, incredibly technical |
|
|
national codes |
German and French civil codes |
|
|
Countries that use french civil code |
latin america, spain, poland, belgium, netherlands, etc. |
|
|
Countries that use German civil code |
Austria, Greece, Hungary, Japan, South Korea, Turkey |
|
|
Islamic law system |
Shari'a Law |
|
|
Shari'a law, where? |
principle source of law in Saudi Arabia and other islamic countries |
|
|
Shari'a law, what? |
Primarily a moral code, Koran and Sunna |
|
|
Sunna |
traditional teachings and practices of Prophet Muhammad |
|
|
Anglo-American |
Common law system, based on customary practice of courts |
|
|
Where is anglo-american used |
Britain, australia, canada, india, new zealand, and US |
|
|
Civil Law |
codes |
|
|
Common law |
case law |
|
|
origins of our law |
inherited much from british law, |
|
|
U.S. Law primary sources |
constitution, statutes, regulations, case law, and executive orders |
|
|
constitution |
state and law |
|
|
statutes |
passed by congress and state legislatures |
|
|
Regulations |
promulgated by federal and state agencies |
|
|
Executive orders |
issued by federal and state executive branch |
|
|
Four roles of U.S. Constitution |
1. 3 branches of government 2. Control relationship between national and state 3. Define and preserve personal liberty 4. Allow government to perpetuate itself |
|
|
Three branches of government |
Legislative, Executive, and Judicial |
|
|
statutes |
find U.S. code online |
|
|
Case law |
findlaw.com (common law) |
|
|
Secondary sources of U.S. Law |
books, articles, and comments legal encyclopedias restatements |
|
|
Criminal Law |
Dangerous behavior outlawed by society, government prosecutes, guilt is determined, punishment or fine imposed |
|
|
Civil Law |
regulates rights and duties, victim not government Guilt not determined compensation is ordered |
|
|
Substantive Law |
defines the rights of the people |
|
|
Procedural Law |
establishes processes for settling siputes |
|
|
Public Law |
sets the duties of government to its citizens |
|
|
Private Law |
regulates duties between individuals |
|
|
Case analysis |
plaintiff, defendant, legal citation, facts, issue, and exerpts |
|
|
Plaintiff |
the party suing
|
|
|
defendent |
party being sued |
|
|
Legal citation |
where to find the case in a law library |
|
|
Facts |
background information |
|
|
issue |
question being decided |
|
|
excerpts |
decision, holding, and the court's rationale |
|
|
Soldano v. O'daniels |
don't have a duty to allow use of a telephone |
|
|
English roots |
diveded into shires, have meetings two or three times a year, mostly nobleman, feudalism |
|
|
feudalism |
king owned all land, gave it to most trusted men |
|
|
Legislative Branch |
ability to create new laws, Congress votes |
|
|
Congress |
100 members, two from each state |
|
|
House of Representatives |
435 members size depends on size of state |
|
|
Executive branch |
authority to enforce laws president is head of the armed forces proposes statutes signs or vetoes oversees either administrative or state agencies |
|
|
Judicial Branch |
gives the right to interpret laws and determine validity |
|
|
Head of judicial branch |
supreme court |
|
|
administrative agencies |
oversee day-to-day application of law in dozens of commercial and other areas |
|
|
Checks and balances |
president vetos congress, congress can impeach president, supreme court can void laws, president appoints supreme court judges |
|
|
Statutes |
passed laws that can cover any topic, as long as it does not violate the Constitution |
|
|
Statute Process |
bill is proposed by congress vote, must win majority vote goes to white house for approval president can veto but congress can override with a 2/3 vote bill passes with 2/3 vote |
|
|
Stare decisis |
let the decision stand |
|
|
court orders |
binding obligation issued by a judge |
|
|
Injunction |
court order to stop doing something, have authority to imprison |
|
|
Treaties |
must be ratified by a 2/3 vote by the Senate |
|
|
Legal positivism |
whatever the sovereign declares to be the law is the law |
|
|
Natural law |
st. thomas aquinas, good is to be done and promoted |
|
|
legal realism |
what counts is who enforces that law and by what process |
|
|
State Court System |
Trial courts and appellate courts |
|
|
trial courts |
almost all cases begin here, courts can only hear cases under their jurisdiction |
|
|
appellate courts |
appeal courts generally accept the facts given by trial courts and review the case |
|
|
Jurisdiction |
power of a court to hear a case |
|
|
Two kinds of civil lawsuits in federal courts |
federal question cases and diversity cases |
|
|
federal question cases |
claim based on US Constitution, a federal statute, or a federal treaty |
|
|
Diversity cases |
when the plaintiff and defendant are citizens of two different sates, and the amount in dispute is greater than $75,000 |
|
|
trial courts for federal system |
nation is divided into 94 districts |
|
|
How many circuits exist in US accourt of Appeals |
12 circuits |
|
|
how many judges hear appellate cases |
3 judges |
|
|
Us Court of Appeals for the Federal Court |
Hears from specialized trial courts |
|
|
Steps in a pleading |
Complaint, answer, counter-claim, reply |
|
|
pleadings |
papers that begin a lawsuit |
|
|
Variations on pleadings |
class actions and default judement |
|
|
Class actions |
affects a large number of time |
|
|
default judgement |
defendant fails to answer in time |
|
|
Step after pleadings |
Discovery |
|
|
Types of Discovery |
Interrogatories, deposition, production of evidence, physical or mental exam, E-Discovery |
|
|
depositions |
interview under oath done by opposing lawyer |
|
|
Motion |
file if one side thinks the other has not adequately answered interrogatories |
|
|
motion for proctective order |
request to the court that the other side be made to reduce the number of depositions |
|
|
Other steps before trial |
summary judgement and final preparation |
|
|
summary judgement |
ruling by the court that no trial is necessary because there are no essential facts in dispute |
|
|
Final Preparation |
both sides make a list of witnesses and rehearse questions with their own witnesses |
|
|
Adversary System |
presumes that the truth will be found if lawyers are allowed to question witnesses from both sides |
|
|
Procedural rules for a trial |
burden of proof |
|
|
burden of proof |
plaintiff must convince the jury |
|
|
burden of proof in a civil case |
preponderance of evidence, slightly more likely to be true |
|
|
burden of proof in a criminal case |
must be beyond a reasonable doubt |
|
|
Plaintiffs Case |
opening arguments plaintiff calls witnesses Defendant questions witnesses defendant moves for directed verdict |
|
|
directed verdict |
asking the judge to decide if the plaintiff has a case worth proceeding with |
|
|
Defendants Case |
Opening arguments, defendants calls witnesses plaintiff questions witnesses Closing arguments |
|
|
After both sides rest |
jury instructions and deliberation/verdict |
|
|
jury instructions |
judge instructs the jury to evaluate the case |
|
|
deliberation and verdict |
sometimes unanimous other times a majority (at least 7) or a 10-2 vote |
|
|
Small claims division trial court |
hears only civil suits under $2,500 |
|
|
Municipal division trial court |
hears traffic cases and minor criminal suits |
|
|
Juvenile division trial courts |
only hears cases involving minors |
|
|
probate division trial court |
settles estates of deceased persons |
|
|
Land division trial court |
hears land and real property disputes |
|
|
Domestic relations division trial court |
handles marital and child custody issues |
|
|
Motions after the verdict |
loser might request the judge to overturn the verdict on a legal technicality or on a claim that jury ignored evidence |
|
|
settlement |
at any point either side can settle the case |
|
|
What circuit is west virginia in |
district 4 |
|
|
ADR |
Alternative Dispute Resolution |
|
|
Benefits of ADR |
quicker decisions, reduced cost/discovery, etc. |
|
|
Most common forms of ADR |
Negotiation, mediation, arbitration |
|
|
mediation |
neutral person attempts to get parties to reach a voluntary settlement, does not render a decision |
|
|
arbitration |
neutral person renders a binding decision, may be mandatory |
|
|
Hybrid methods of ADR
|
Minitrial, fact finding, judicial referee, or e-dispute resolution |
|
|
litigation |
refers to lawsuits, the process of filing claims, and trials |
|
|
long-arm statue |
gives a court jurisdiction over someone who commits a tort, sign a contract or conducts regular business activities in the state |
|
|
State Supreme Court
|
highest court in the state, most have 7 justices |
|
|
e-discovery |
enormously time-consuming and expensive for companies to locate all relevant material, separate it and furnish it |
|
|
settlement stats |
90% of all cases are settled before trials |
|
|
Voir dire |
to speak the truth |
|
|
preemptory challenges |
right to excuse a juror for virually any reason |
|
|
Judgement no obstante veredicto |
(JNOV) judgement notwithstanding the jury's verdict |
|
|
How many days to file an appeal |
2 days |
|
|
Appeals Court options |
affirm, modify, reverse and remand, harmless error |
|
|
harmless error |
doesn't affect the outcome of the trial |
|
|
Functions of U.S. Contitution |
creates the organization and structure of the federal government, allocates power, limits government's ability to restrict individual rights |
|
|
Federalism, power comes from |
enumerated powers clause |
|
|
Bill of Rights |
1st 10 amendments for individual rights |
|
|
primary source of federal power to regulate business |
Commerce Clause |
|
|
Congress can create and enact |
legislation, impose taxes, spend money, create copyrights, and support the military/declare war |
|
|
Substantial Effect Rule |
Congress may regulate any activity which has a substantial economic effect on interstate commerce |
|
|
Dormant (Negative) Aspect Rule |
States are limited where their actions restrict free flow of interstate commerce |
|
|
Colorado passes a hotel tax of 8% for Colorado residents and 15% for out of state visitors effect which clause |
Supremacy clause |
|
|
Article II of the constitution |
Executive power |
|
|
Article III of the constitution |
Judicial Power |
|
|
two key functions of federal courts |
adjudication and judicial review |
|
|
adjudication |
federal courts hear civil and criminal cases within their jurisdiction |
|
|
Judicial review |
federal courts can declare a statute or governmental action unconstitutional |
|
|
Generally, constitutional protections do NOT apply to |
Acts of (slide 12 ch 4) |
|
|
Fifth amendment |
Procedural due process and the takings clause |
|
|
procedural due process |
government must go through procedures to ensure that the result is fair. |
|
|
the takings clause |
must pay fair price when taking private property for public use |
|
|
14th amendment |
equal protection |
|
|
rational basis test |
based on economic and social relation, usually acceptable |
|
|
intermediate scrutiny |
based on gender, sometimes acceptable |
|
|
Strict Scrutiny test |
race, ethnicity, and fundamental rights, not acceptable |
|
|
Statutory Law |
most new law, legislation passed by either a state legislature or Congress |
|
|
Citizens have some control over statutory law because |
we elect representatives to vote for us |
|
|
law making process |
congress can initiate a bill, or proposed law bill is debated in a committee goes to vote if it passes moves the to the president President can veto if veto then congress can override with 2/3 |
|
|
Why bills are proposed? |
New issues or new worries, unpopular judicial rulings, and criminal law |
|
|
Common Law |
Made up of all the decisions made in the appellate courts |
|
|
Stare decisis |
let the decision stand |
|
|
Administrative law |
Federal agencies have power to make regulations which affect citizens and businesses |
|
|
Administrative Procedure Act |
regulates how agencies operate, in an attempt to reduce the controversy |
|
|
Two types of rule |
legislative and interpretive rulesl |
|
|
legislative rules |
require businesses and people to act a certain way, substantive and procedural |
|
|
interpretive |
these do not change the law, define or apply the laws to new situations |
|
|
subpoena
|
order to appear at a hearing and produce evidence |
|
|
Requirements of a subpoena |
must be relevant and under jurisdiction not unreasonably burdensome on the business must not be priveleged |
|
|
must not be priveleged |
a corporate officer may not be required to incriminate himself |
|
|
Procedures of adjudication |
hearing before an administrative law judge parties have counsel both sides present evidence judge makes ruling |
|
|
appeals go to |
federal court |
|
|
Bystander cases |
you have no duty to assist someone in peril unless you created the danger |
|
|
Tarasoff exception |
special relationship, therapist-patient, bystander |
|
|
Carey V. Davis Exception |
if it is your employer, Bystander |
|
|
Title VI |
employer cannot discriminate against potential workers |
|
|
Conference Committee |
examines all the differences between two bills and tries to reach a compromise |
|
|
3 main points of statutory interpretation |
plain meaning rule, legislative history and intent, public policy |
|
|
plain meaning rule |
common sense definition |
|
|
legislative history and intent |
if language is unclear looks deeper into history |
|
|
Public policy |
history is unclear, courts will rely on general public policies |
|
|
First administrative agency and for what |
ICC for freight and passenger transportation over the rail system |
|
|
ICC |
Interstate Commerce Commission |
|
|
Enabling Legislation for administrative law |
congress describes the problems that need regulations establishes an agency defines agency's power |
|
|
Power of agencies |
make rules, investigate, and then adjudicate |
|
|
to create a new law is to |
promulgate |
|
|
informal rulemaking |
agency must publish a rule and public may submit objections and arguments, with supporting data |
|
|
Formal rulemaking |
congress may require a hearing and agency must prepare a formal, written response to everything that occurred during the meeting |
|
|
Comprehensively regulated industry |
courts assume that companies know they are subject to periodic, unannounced inspections |
|
|
ALJ |
Administrative law judgeg |
|
|
political control over administrative |
congress can defund programs, and president elects them |
|
|
FOIA |
Freedom of Information Act |
|
|
FOIA designed to |
give all of us access to the information that federal agencies are using |
|
|
FOIA does not apply to |
congress, federal courts, or the executive staff |
|
|
Exemptions |
agency has 10 days to respond to a request |
|
|
Privacy Act |
prohibits federal agencies from giving information to other agencies without written consent |
|
|
What year was the constitution drafted |
1787 |
|
|
when did the 13 colonies declare independence |
1776 |
|
|
governed the colonies before the constitution |
Articles of Confederation |
|
|
Articles of Confederation |
gave no real power to central government |
|
|
Drafting of the Constitution |
States sent group of 55 delegates to Philadelphia |
|
|
Constitution is a |
Series of compromises about power |
|
|
Framers wanted this for interstate commerce |
one voice regulating relations with foreign governments, stop states from imposing taxes and regulations on eachother |
|
|
substantial effect rule does not require |
things traveling from one state to another |
|
|
First amendment |
free speech |
|
|
political speech |
protected unless it is intended and likely to create imminent lawless action |
|
|
regulations on first amendment |
time, place, and manner of such speech morality and obscenity Commercial speech |
|
|
commercial speech |
such as advertisements, has the dominant theme of proposing a business transaction |
|
|
two steps of analyzing a due process case |
is the government trying to take liberty or property? If so, how much process is due? |
|
|
Eminent domain |
power of the government to take private property for public use |
|
|
enumerated powers clause |
lists 18 types of laws congress can pass |
|
|
judicial activism |
a court's willingness to decide issues on constitutional grounds |
|
|
Judicial restraint |
a court's attitude that it should leave law-making to legislators |
|
|
incorporation |
rights that are guaranteed at one level are incorporated in the other levels |
|
|
How much process is due? |
neutral factfinder, attachment of property, government employment, and academic suspension |
|
|
Origin of judicial review |
Marbury vs Madison case |
