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180 Cards in this Set

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system in which opposing parties initiate and present their case
adversary system
system in which the judiciary initiates, conducts and decides cases
inquisitorial system
body of law based upon principles distinct from common law and providing remedies not available at law
equity
decision of a court of equity
decree
a general legal principle
maxim
supreme law of the land
U.S. Constitution
defines duties that exist between persons or between citizens and their governments, excluding duty not to commit crimes
civil law
"to stand by the decisions"
doesn't preclude courts from correcting erroneous decisions or from choosing among conflicting precedents
Stare Decisis
comprises the judgements and decrees of the courts recognizing, affirming & enforcing usages & customs of immemorial antiquity
Common Law
defines, regulates and creates legal rights
substantive law
establishes methods of enforcing those rights
procedural law
addresses relationship between government and persons
public law
deals with relationship between persons (business law is mainly this)
private law
law concerned with wrongs committed against public as a whole
criminal law
the party against whom legal action is saught
defendant
the party who initiates a civil suit
plaintiff
law which deals with establishment of duties and powers of agencies in executive branch
administrative law
compilations of common law on various subjects. summarizes law and are secondary source of legal analysis athough don't have force of law
restatement of law
an aggrement between or among independent nations
treaty
legislation issued by the president or a govenor
executive order
permits only the federal courts to hear a case
exclusive federal jurisdiction
authority of federal or state courts to hear the same case
concurrent federal jurisdiction
any case arising under the constitution, statutes, or treaties of the U.S.
Federal Quest
1. plaintiffs aren't from the same state as deffendents
2. foreign country brings an action against citizens of U.S.
3. when citizens of different countries are in a fight
diversity of citizenship
autority of a court to decide a particular kind of case
subject matter jurisdiction
based on claims against a person in contrast to jurisdiction over properties
in personam jurisdiction
expands their jurisdiction reach beyond those persons who may be personally served w/in the state
long-arm statutes
jurisdiction based on claims against property
inrem jurisdiction
quasi-inrem - jurisdiction over property not based on claims against it
attachment jurisdiction
particular geographical place where a court with jursidiction may hear a case
venue
discretionary review by a higher court
writ of certorari
mandatory review by a higher court
appeal by rights
series of responsive, formal, written statements by each side to a law suit
pleadings
initial pleading by the plaintiff stating his case
complaint
notice given to inform a person of a lawuit against her
summons
judgement against a defendent who fails to respond to a complaint
default judgement
motion to dismiss for failure to state a claim
demurrer
defendants pleading in response to the plaintiffs complaint
answer
plaintiff's pleading in response to the defendants answer
reply
final binding determination on the merits made by the judge after the pleadings
judgment on the pleadings
binding determinations on the merits made by the judge before trial
summary judgement
pretrial xchange of info b/w opp. parties to a lawsuit
discovery
prelim. exam. of potential jurors
voirdire
final binding determination on the merits made by the judge after a trial has begun but before the jury renders a verdict
directed verdict
only if: 1. judge commited prejudicial error
2. verdict is against weight of evidence
3. damages are excessive
4. trial wasn't fair
reasons for a new trial
a final binding det. on the merits made by the judge after and contrary to the jury's verdict
Judgment N.O.V.
consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute w/o the involvment of 3rd parties
negotiation
3rd party acts as an intermediary b/w disputing parties
conciliation
demands enforcement
execution
implement the court's judgement
garnishment
nonbinding process in which a 3rd paty acts as an intermediary b/w the disputing parties & proposes solutions for them to consider
mediation
mock trial followed by negotiation
summary jury trial
nonjudicial proceeding where a neutral 3rd party selected by disputants renders a binding decision
arbitration
federal law takes precedence over conflicting state laws
supremacy clause
the federal government's law is supremem by virtue of the supremacy clause of the constitution
federal supremacy and preemtion
first right of the federal government to reg. matters w/in its powers to the possible exclusion of state reg.
fed. preemption
power of the courts to determine the constitutionality of any leg. or exec. act
judicial review
allocation of powers among the legislative, executive, and judicial branches of govt
separation of powers
actions by govt as opposed to actions taken by priv. indiv.s
state action
congress has power under constitution to rgulate commerce with other nations and among the states. this allows fed. govts to reg. economy and prevents states from burdening interstate commerce
federal commerce power
taxation, spending power, borrowing and coining money, eminent domain
federal fiscal powers
goverment may take private property for public use if it pays compensation
eminent domain
related to economic interest of speaker and audience
commercial speech
regulates and creates legal rights
substantive due process
involves a fair procedure if an individual is deprived of life, liberty and property
procedural due process
fourteenth amend., no state to deny equal protection to person within its borders
equal protection
applies to economin laws; requires govt leg. to bear a reasonable relationship to legitimate govt interests; if it limits liberty or some individuals, but not others: equal protection
rational relationship test
classification must promote a compelling or necessary govt'l interest
strict scrutiny test
legislation must have substantial relationship to an important govt'l objective; used for issues on gender, legitimacy, and citizenship
intermediate test
law that involves a judge, jury and executioner (no seperation of powers)
administrative law
statements issued by agency indicating construction of its governing statute. helps people decide legal questions about law and regulations
interpretive rules
these rules establish procedures of conduct required to practice before agency, identity of agency's org. and method of operation
procedural rules
after investigation formal and informal methods used to resolve conflict
adjudication
wrongs in themselves or moral wrongs
mala in se
not morally wrong but declared wrongfully by law
mala prohibita
punishable by death or by imprisonment in a federal or state penitentiary (fined as well)
felonies
offenses against the state
crimes
crimes punishable by fines or confinemtn in local jail for up to a year (Class A & B)
midemeanors
another kind of wrong, not classified as crime
petty offenses
non-violent crimes
white collar crimes
must show a pettern of racketeering within 10 year period
RICO
criminal intent or mental fault
mens rea
tangible property
personal property
wrongful or fraudulent taking and carrying away by any person of personal property of another with intent to permanently deprive person of property
larceny
a fraudulent conversion of another's property
embezzlement
obtain property by falsely representing an existing fact, have knowledge of falsity and made with intent to defraud
false pretenses
larceny with threat of force or violence
robbery
breaking and entering with intent to commit felony
burglary
threats to obtain money
extortion
offer of money to influence public figure
bribery
intentional and falsely altering a document with intent to defraud
forgery
have insufficient funds to cover check
bad checks
if you know the difference b/w right & wrong, the you are not this. claimed 1% of the time
insanity
arrest; booked; preliminary hearing; arraignment; trial; appeal
steps in criminal prosecution
assault; battery; false imprisonment; infliction of emotional distree; defamation; invasion of property; misrepresentation
intentional torts against persons
an intentional act that creates in another a reasonable apprehension or fear of immediate harmful or offensive contact
assault
an intentional act that brings about harmful or offensive contact to another
battery
an intentional act that confines or restrains another
false imprisonment
an intentional act amounting to extreme and outrageous conduct that causes sever emotional distress to another
infliction of emotional distress
a false statement of fact, not made under privilege, that is communicated to a third person and that causes damage to a person's reputation. for public figures, the plaintiff must also prove actual malice
defamation
the use of another's name or likeness for commercial purposes without permission, wrongful intrusion into a person's private activities, publication of information that places a person in a false light, or disclosure of private facts that an ordinary person would find objectionable
invasion of privacy
a false representation made by one party, through misstatement of facts or through conduct, with the intention of deceiving another and on which the other reasonably relies on his or her detriment
misrepresentation
trespass to land; trespass to personal property; conversion
intentional torts against property
the invasion of another's real porperty without consent or privilege. specific rights and duties apply once a person is expressly or impliedly established as a trespasser
trespass to land
unlawfully damaging or interfering with the owner's right to use, possess, or enjoy his or her personal property
trespass to personal property
a wrongful act in which personal property is taken from its rightful owner or possessor and placed in the service of another
conversion
negligence; defenses to negligence; res ipsa loquitur; negligence per se; special negligence statues
unintentional torts--Negligence
the careless performance of a legally required duty or the failure to perform a legally required act. elements that must be proved are that a legal duty of care exists,, that the defendant breached that duty, and that the breach caused damage or injury to another
negligence
assumption of risk; contributory negligence; comparative negligence
degenses to negligence
a doctrine under which a plaintiff need not prove negligence on the part of the defendant because "the facts speak for themselves"
res ipsa loquitur
a type of negligence that may occur if a person violates a statute or an ordinance providing for a criminal penalty and the violation causes another to be injured
negligence per se
state statutes that prescribe duties and responsibilities in certain circumstances, the violation of which will impose civl liability
special negligence statutes
a person may be held liable, regardless of the degree of care exercised, for damages or injuries caused by his or her product or activity. includes liability for harms caused by abnormally dangerous activites, by wild animal, and by defective products
strict liability
the fraudulent conversion of propery or money owned by one person to whom the property or money was entrusted (tort)
embezzlement
the willful and malicious burning of a building or in some states personal property owned by another
arson
using the mails to defraud the public
mail fraud
agreements courts will enforce, and will give a remedy
contracts
a contract involving the transfer of title to goods from seller to buyer for a price
sale
tangible personal prop.
goods
failure to properly perform a contractual obligation
breach
agreement to enter contract
mutual assent
exchange between parties
consideration
must be able to enter contract
capacity
words actually stated, either orally or in writing
express contract
contract formed by conduct of the parties
implied contract
exchange of one promise for a return promise
bilateral contract
exchange of promise for performing an act or refraining from doing an act
unilateral contract
can't be enforced. doesn't meet all contractual reqs.
void contract
meets requirements, therefore enforceable
valid contract
one of the parties has the choice of voiding the contract
voidable contract
valid contract that can't be enforced
unenforceable contract
all conditions have been met and all parties have fully performed
executed contract
conditions not all fulfilled, not full performance
executory contract
person making a promis
promisor
person to whom a promise is made
promisee
a doctrine enforcing noncontractual promises where there has been justifiable reliance on the promise & justice requires the enforcement of the promise
promisory estoppel
implied in law contract; an obligation imposed by law to avoid injustice; commonly used with void, enenforceable, or voidable contracts
quasi contracts
definite proposal indicating a willingness to enter into a contract
offer
whom contract is made to
offeree
person who makes the offer
offeror
buy entire outupt of seller's factory for a stated period
output contract
seller will supply buyers requirements for a certain period
requirement contract
cancellation of an offer by an offeror bringing an offer to an end
revocation
offer to hold offer open for stated period with consideration or value give by other person. makes offer irrevocable for that time
option contracts
if merchant makes offer in signed writing that he will hold offer open for a stated or reasonable period, not to exceed 3 months, offer is irrevocable for that time; no consideration needed
firm offer
if offeree communicates an unwillingness to contract, offer terminated
rejection
a counterproposal, shows a willingess to contract under different conditions. acts as a rejection and creates a new offer
counteroffer
must be communicated to offeror in bilateral contract, and must also be communicated in unilateral contract if offeror has no adequate means to learn of performance
acceptance of offer
acceptance that contains terms different from or added to those in the offer. it receives diff. treatment by the CL & the Code
Varian Acceptances
a promise for a promise
bilateral contract
a promise for an act
unilateral contract
a person or institution who manages money or property for another & who must exercise in such mgmt activity a std of care imposed by law or contract
fiduciary
wrongful threat or act that overcomes free will of the party
duress
assent this way makes contract void
physical duress
voidable at option of victim
improper threats (duress)
unfair persuassion of a person by a party in a dominant position based on a rltshp of trust or confidence. renders cont. void; very scrutinized so no one gets screwed
unde influence
is VOID. misrepresentation as to nature of contract
fraud in the execution
is VOIDABLE at the option of the defrauded party
Fraud in the Inducement
misrepresenting the facts
false representation
actively hide facts to keep another from knowing about it
concealment
guilty knowledge with intent to deceive
scienter
both parties mistake smae fact or facts. can be voided by adversely affected party
mutual mistake
one of the parties is mistake. relief granted if non-mistaken party knows or reasonable should know mistake made
unilateral mistake
both parties must give and receive something of value for their respective promises
consideration
promise must have incurred a detriment under the contract
detriment test
consideration is present if promisee incurred a detriment or promisor has received a benefit
benefit test
genuine dispute exists as to amount of debt
disputed debt
no dispute as to amount
undisputed debts
defined as one who has not attained legal majority
minor
a minor may disaffirm a contract anytime before reaching majority and reasonable time after majority
disaffirmance
if a minor ratifies contract after reaching majority, it is valid from the beginning
ratification
goods required for life or health
necessaries
minors under court appointed guardianship, contract is void unless involves necessaries
person under guardianship
liable under quasi-contract for reasonable value of necessaries. may ratify or disaffirm when he does become competent
incompenent
for these contracts, a writing or a memorandum of the writing are required and it must be signed by party to be charged
statute of frauds
promise to pay the debts of another
suretyship
person who promises to pay the debt of another
surety
undertaking to be secondary liable; that is liable if the principal debtor doesn't perform
collateral promise
if oral promise is secondary but a benefit is secured, and main purpose in making promise is to secure benefit (even if benefit never occurs), promise is enforceable. if performance made directly to debto not creditor, promise enforceable and outside statute
main purpose doctrine
complete and exclusive agreemente of the parties
integrated contract