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51 Cards in this Set
- Front
- Back
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what is Socratic? Definition
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answering a question with a question
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What is a landmark case? Definition
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Remember the name of the case
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What is a word of art? Definition
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Everyone knows the Definition
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what is legal reasoning? Definition
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Cannot be taught. The ability to go through a case study situation.
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What is federalism? Definition
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Two levels of government, federal and state
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what is common law? Definition
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Entire body of all the court cases ever decided
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What is stare decisis? Definition
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it is not a law, it is a process, it's not written anywhere.
The application of precident. |
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What is common law? Definition
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the entire system. unwritten law- not drafted like statutes, it's just out there.
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What is a case brief? Definition and steps
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written the same way as a court case opinion.
Facts, issue, Finding(rule), reason |
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What are the advantages of common law and stare decisis?
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predictability, consistency, stability
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What is the exception to stare decisis?
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it does not apply to public law
private law- contract law, property law, torts law |
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What is judicial review? Definition
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Power of the supreme court to declare anything the government does unconstitutional
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What is considered the most powerful of the Gov?
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The judicial branch because of judicial review
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What is the judicial restraint philosophy? Definition
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Every decision should be based on the constitution
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What is the judicial activist philosophy? Definition
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the supreme court should lead the people in the direction that is best for society
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What is the pendulum of justice? Definition
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sway between judicial activist philosophy and activist philosophy
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What is the difference between a tort and a crime?
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Tort- and injury to a person or damage to property. or a duty to other people
crime- duty to society |
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What is preponderance of evidence? Definition
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Most of the evidence points to something. needed in a civil suit. in a criminal suit you need beyond a reasonable doubt
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Can an act be a tort and a crime?
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yes but a tort isn't always a crime.
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What are the three classifications of torts? Definition
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negligent torts- accidents, intentional torts- intentionally damaging propery or injuring someone, strict liability- if you engage in a ultra hazardous activity you will pay every time regardless
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What are the four required elements to win a negligent tort? list
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duty of due care, breach of duty, proximate cause of damage, provable damage
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What is duty of due care? (negligent tort) Definition
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Exercise ordinary care. What would your peers have done?
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What is proximate cause of damage? (negligent tort) Definition
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breach of duty has to have caused the injury
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What are 2 defenses to negligent torts? list and Definition
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contributory negligence- the prosecutor was negligent and was the cause of the accident.
last clear chance- whoever has the last chance to avoid negligence and don't they're respnsible |
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What are punitive damages? Definition
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punish the defendant
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What is assault? Definition
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putting someone in apprehension of harm
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What is battery? Definition
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Intentionally touching someone without their consent. doesn't require an injury.
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What is objective manifestation of intent? Definition
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Everyone is presumed to know the consequences of their actions
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What is false imprisonment? Definition
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You don't have to know that you were imprisoned.
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What is a defense against strict liability? Definition
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assumption of risk- the injured party assumes the risk
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What is the criminal trial process?
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Voir dire- the process of selecting a jury
opening statements evidence closing arguments verdict |
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What are the 4 elements of a valid contract?
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agreement, consideration, legal capacity, legal purpose
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What is the difference between unilateral and bilateral contracts?
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bilateral- a promise for a promise
unilateral- a promise for an act |
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What is an express contract? Definition
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You have expressed all the terms
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What is an implied in fact contract? Definition
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the missing facts are implied
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What are implied in law contracts? Definition
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quasi contract
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What is unjust enrichment? Definition
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if you could get something without paying for it you would be unjustly enriched
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What are the elements of mutual assent regarding contract acceptance?
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you can only accept an offer that was made to you
the offer has to be serious to accept it has to be exactly what was offered |
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When does an contract acceptance cease?
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you can revoke an offer before it is accepted
offer is rejected or a counter offer is made death illegality expires after a reasonable amount of time |
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When can mutual assent be avoided?
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if there is fraud or misrepresentation
mutual mistake of fact duress, coercion, undue influence |
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What is an illusionary promise? Definition
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you think you have a contract but you only have an agreement
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When do you have consideration?
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bargained for- giving in exchange
legal value- what you bargained for has legal value. could be incurring detriment or giving up a legal right |
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What is peppercorn theory? Definition
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one peppercorn could be sold for whatever you want and that is consideration
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What is past consideration? Definition
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you can't give me something twice
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Who doesn't have legal capacity?
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insane people
drunk or drugged people corporations infants or minors- only have to return what was received to void contract and get money back |
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What is statutes of frauds? Definition
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has to be in writing
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What contracts have to be in writing?
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real estate
guaranty contract- I guarantee payment if the other person doesn't sales of goods contracts that last more than one year |
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What excuses for contract performance?
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impossibility- not hardship
illegality promisee prevents mutual rescission or novation accord and satisfaction |
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What are contract breach remedies?
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Treat as canceled
sue for damages sue for specific performance dur injonction- stop order |
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What is the criminal law procedure?
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Criminal complaint
warrant/summons arrest indictment arraignment discovery |
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What is the litigation process
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complaint
summons answer answer counterclaim reply |
