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84 Cards in this Set
- Front
- Back
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What is the definition of Law?
(not the Blacks Law Dictionary version) |
The law consists of rules that regulate the conduct of individuals, businesses and other organizations within society. It is intended to protect persons and their property against unwanted interference from others. In other words the law forbids persons from engaging in certain undesireable activities.
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What is the definition of Law?
(the Blacks Law Dictionary version) |
Law in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is law
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What are the functions of the law (name three for test)
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Keep the peace
Shape moral standards promote social justice maintain the status quo facilitate orderly change facilitate planning provide a basis for compromise maximizing individual freedom |
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What is the nature and origin of common law?
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Common law is developed by judges who issued their opinions when deciding a case
the principles announced in these cases become precedent for later judges deciding cases It originated from the English system of law |
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Prior to the Norman conquest disputes were settled in England by
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the landholder for which the presant worked
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The decisions of common law are kept where
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Year books
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Define Cause of Action
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a cause of action is a set of facts sufficient to justify a right to sue. It is the legal theory upon which a plaintiff brings suit
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A cause of action generally encompasses
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the legal theory
and the remedy |
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Specific causes of action are
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contract-based actions
statutory causes of actions torts suits in equity |
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the elements a of a cause of action are
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points a plaintiff must prove to win a case
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The elements of negligence are
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defendant owed duty of care to plaintiff
defendant breached that duty Plaintiff was harmed plaintiffs injury or harm was caused by defendant's breach |
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what are the three equitable remedies
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specific performance,
injunction (mandatory and prohibitive) and rescission |
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Where does law come from
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constitutional law
statutory law administrative law common law |
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what is statutory law
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enacted by a legislative body
congress state city council |
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what is administrative law
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law by executive order
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stare decisis
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A decision making rule which provides that a court must follow decsions of a higher court in the same jurisdiction in a case involving the same or similar facts and issues
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what is the specific perfomance remedy
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requires you to perform terms of a contract
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what is recision remedy
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requires the undoning of a contract
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what is the injunction remedy
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prohibitory- can't do something
mandatory-must do something |
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If you are seeking an equitable remedy know that
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you are not entitled to a jury
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who decides the equitable remedy
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a judge, NO JURY
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An executive agency is
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appointed by the executive branch of the government
usually changes with the administration For example, the Department of Homeland Security |
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An independent regulatory agency agency is
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an agency such as the Environmental Protection Agency enacted by Congress to carry out legislation
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the supreme law of the land is the
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constitution
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to codify a law is to
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take the statutes and organize by subject
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the diversity of citizenship jurisdiction applies to and applies when
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Federal court
citizens are from different states and claims are more than 75,000 |
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The two questions of jurisdiction that apply to federal court are
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subject matter jurisdiction
diversity of citizenship jurisdiction |
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federal question jurisdiction in federal court applies
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plantiff has alleged violation of the Contstitution, laws or treaties of the united states
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in personam jurisdiction
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gives the court jurisdiction over the parties of a lawsuit
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in rem jurisdiction
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a court may have jurisdiction to hear and decide a case because it has juridiction over the property at issue in the lawsuit
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quasi in rem jurisdiction
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a plaintiff who obtains a judgement against a defendent in one state may utilize the court system of another state to attach property of the defendants that is located in the second state
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long arm statute
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a statute that extends a state's jurisdiction to non-residents who were not served a summons within the state, the non resident must have had some minimum contact with the state
defendants who have 1)committed torts within the state 2) entered into a contract in the state or that effects the state 3) transacted other business in the state that allegedly caused injury to another person |
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limited jurisdiction courts are
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specialized in nature, like bankruptcy
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general jurisdiction courts
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hear cases that are general in nature and not subject to limited jurisdiction coruts, testimony and evidence are recorded and stored for future reference
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exclusive jurisdiction
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jurisdiction held by only one court
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concurrent jurisdiction
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jurisdiction held by more than one court
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the correct formal names of the three courts through which a civil action may potentially proceed in the Kansas judicial system
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District Court of Sedgwick County (TRIAL COURT)
Kansas Court of Appeals Kansas Supreme Court |
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the correct formal names of the three courts through which a civil action may potentially proceed through the federal court system
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US district Court (TRIAL COURT)
US Circuit Court of Appeals US Supreme Court |
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When you live in Wichita and appeal a federal court case, where would you go
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10th Circuit Court of Appeals, Denver, Colorado
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Three primary basis for personal jurisdiction
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residency
filing and pleading long arm |
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name some limited jurisdiction courts
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traffic
juvenile justice of the peace probate family law misdemeanor criminal law cases small claims courts |
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Intermediate Appellate courts follow what process
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reveiw trial court record to determine if there have been any errors at trial that would reverse a decision
no new evidence or testimony is permitted file legal breifs and oral statements are made |
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The supreme court is composed of
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nine justices, nominated by the president and confirmed by the senate
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who appoints the cheif justice
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the president
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who is the current chief justice
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john roberts
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what is a petition for certiorari
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asks the supreme court to hear a case
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what is a writ of certiorari
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An official notice that the supreme court will hear a case
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Long arm jurisdiction
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doctrine which provides a state court in a civil matter with personal jurisdiction over a non-resident defendant based upon the defedant's conduct in that state.
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Conduct that would cause a state to exercize long arm jurisdiction
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entering into or breaching a contract in the forum state, committing a tort in the forum state, selling a product in the forum state or engaging in an act of sexual intercourse in the forum state
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what is a summons
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a court order directing the defendant to appear in court and answer the complaint
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what is a cross-claim
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a claim against a party on thes same side of an action
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what is a counterclaim
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a claim for relief that is asserted against an opposing party after an original claim has been made
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discovery
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a legal process during wich each party engages in various activities to discover facts of the case from the other party and witnesses before the trial
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deposition
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oral testimony given by a party or witness prior to a trial, it is given under oath and transcribed
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interrogatories
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written questions submitted by one party to the other party. THey must be answered within a certain period of time
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motion for summary judgment
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a motion that asserts that there are not factual disputes to be decided by the jury that the judge can apply the proper law to the undisputed factsw and decide the case without a jurty
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What are the phases of a trial
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jury selection
opening statements plaintiffs case defendants case rebuttle and rejoinder closing arguments juring instructions jury deliberation entry of judgment |
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a motion to dismiss must have a legal basis what kinds of legal basis could there be
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lack of personal jurisdiction
lack of subject matter jurisdicition improper venue insufficiency of process failure to state a claim upon which relief can be granted |
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how many circuits in the federal court system
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13
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a majority decision is
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the majority of the justices agree to the outcome and the reasoning used to decide a case it is a majority opinion and it becomes precedent for later cases
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a plurality
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a majority agree on the outcome but not to the reason, then the case is decided, but precedent is not set
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a concurring opinion
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agrees with the outcome but not the reasoning
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A dissenting opinion
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does not agree with the decision
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Sources of American Law
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-Constitutional law – Constitution of the United States and the 50 states
-Statutory law – laws passed by Congress, state legislatures and local governing bodies -Common law – opinions of appellate courts -Administrative law – regulations, orders and decisions of administrative agencies |
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substantive law
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the statutory or writtenlaw that governs rights and obligations of those who are subject to it
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Procedural law
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the rules by which a court hears and determines what happens in civil or criminal proceedings.
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Federal statutes are published in
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the United States Code
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Kansas statutes are published in
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Kansas Statutes Annotated (K.S.A.)
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Concurrent jurisdiction
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refers to the power of a court to hear types of cases that may be brought in either state or federal court.
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Exclusive jurisdiction
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refers to the power of a federal court to hear a case that must be brought in federal court or the power of a state court to hear a case that must be brought in state court
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Pretrial Conference Order
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At the close of the discovery phase of a lawsuit, the judge and the attorneys confer and develop a “roadmap” that will govern the remainder of the litigation
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Pretrial Conference Order will decide
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Issues of fact
Issues of law Witness list Exhibit list Unusual evidence questions Date for summary judgment motions Date/length of trial Jury or bench trial |
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Information presented to the appellate court
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Record on Appeal
-Transcript of the trial -Significant pleadings filed in trial court Brief of Appellant Brief of Appellee Oral arguments |
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Brief of Appellant
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booklet identifying the errors allegedly made at trial, the trial evidence relevant to these errors, and the law which suggests the errors entitle appellant to judgment or new trial
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Brief of Appellee
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booklet contesting the facts, law and conclusions in appellant’s brief
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Article 1 Courts
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us bankruptcy court
us tax court |
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article 3 judges are appointed for how long
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lifetime
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WHAT IS AN ELEMENT
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ONE THING, PROPOSITION, FACT IN A GROUP OF THINGS, ALLL OF WHICH MUST BE PROVED IN ORDER TO ESTABLISH A CAUSE OF ACTION, DEFENSE, OR STATUS
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elements of negligence
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defendant owed a duty of care to plaintiff
defendant breached that duty plaintiff was harmed harm to the plaintiff was caused by defendant's breach |
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3 equitable remedies
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injunction
-prohibitory -mandatory recision specific performance |
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What is the process that happens before a trial
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complaint-must list a cause of action
defendant may file a motion to dismiss b/c 1. lack of jurisdiction 2. invalid service of process 3. failure to state a valid cause of action Answer- whether or not he admits or denies allegations pleadings- the paperwork that is filed with the court to initiate and respond to a lawsuit. discovery |
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what are the tools of discovery
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depositions
interrogatories requests for production of documents requests for admisssions |
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what is a request for admission
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a period where all the stuff that is not under dispute is identified
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motion for summary judgement
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applying law to facts that are undisputed indicates that the case is already won
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