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