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115 Cards in this Set

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Federal Law

A body of law at the highest or national level of a federal government, consisting of a constitution, enacted laws and the court decisions pertaining to them. The federal law of the United States consists of the United States Constitution, laws enacted by Congress, and decisions of the Supreme Court and other federal courts.

State Law

In the United States, state law refers to the law of each separate U.S. state. The fifty American states are separate sovereigns, with their own state constitutions, state governments, and state courts.

Supremacy Clause

Establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied.

Codified Law

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law. Codification is the defining feature of civil law jurisdictions.

Administrative Law

Is the body of law that governs the activities of administrative agencies of government. (i.e. taxation, international trade, etc.)



Case Law

Is the body of law that governs the activities of administrative agencies of government.

Common Law

Legal system is characterized by case law developed by judges, courts, and similar tribunals, when giving decisions in individual cases that have precedential effect on future cases.

Equitable Remedy

Equitable remedies are actions that the court prescribes which will serve to resolve the breach or dispute (only when legal remedy is inadequate).

Legal Remedy

Legal remedies allow the non-breaching party to recover monetary damages.

Stare Decisis

The matter is decided (precedence)


Is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.

Civil litigation



The plaintiff is asking the court to order the defendant to remedy a wrong, often in the form of monetary compensation to the plaintiff.


Filed by a private party.


Preponderance of evidence.

Criminal Law

Criminal law is the body of law that deals with crime and the legal punishment of criminal offenses.


Filed by the government.


Beyond a reasonable doubt.

Minimum Contacts

Minimum contacts is a term used in the United States law of civil procedure to determine when it is appropriate for a court in one state to assert personal jurisdiction over a defendant from another state. The United States Supreme Court has decided a number of cases that have established and refined the principle that it is unfair for a court to assert jurisdiction over a party unless that party's contacts with the state in which that court sits are such that the party "could reasonably expect to be haled[1] into court" in that state. This jurisdiction must "not offend traditional notions of fair play and substantial justice".[1] A non-resident defendant may have minimum contacts with the forum state if they 1) have direct contact with the state; 2) have a contract with a resident of the state;[2] 3) have placed their product into the stream of commerce such that it reaches the forum state;[3] 4) seek to serve residents of the forum state;[4] 5) have satisfied the Calder effects test;[5] or 6) have a non-passive website viewed within the forum state.

Personal Jurisdiction

Is the power of a court over the parties in the case. Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits.

Original Jurisdiction

This means the court has the right to hear the case first.

Diversity Jurisdiction

Diversity jurisdiction occurs when the parties are citizens of two different states, or one party is a U.S. citizen and the other is a citizen of a foreign country. A diversity plaintiff may choose to bring the case in federal district court, though state law may be used to decide the case.

Appellate Jurisdiction

This means the court hears an appeal from a court of original jurisdiction. The appeals court uses appellate jurisdiction to review a lower court's decision. Just keep in mind that the appellate court will not hear the entire case. It is not a new trial.

U.S. Supreme Court

Is the highest federal court of the United States. Established pursuant to Article III of the United States Constitution in 1789, it has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. In the legal system of the United States, the Supreme Court is the final interpreter of federal constitutional law, although it may only act within the context of a case in which it has jurisdiction.

Federal-question jurisdiction

In United States law, federal-question jurisdiction is the subject-matter jurisdiction of United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.

Exclusive Jurisdiction

Exists where one court has the power to adjudicate a case to the exclusion of all other courts

Concurrent Jurisdiction

More than one court may take jurisdiction over the case.

What must go to federal court?

Federal court jurisdiction is limited to the types of cases listed in the Constitution and specifically provided for by Congress. For the most part, federal courts only hearcases in which the United States is a party;cases involving violations of the U.S. Constitution or federal laws (under federal-question jurisdiction);cases between citizens of different states if the amount in controversy exceeds $75,000 (under diversity jurisdiction); andbankruptcy, copyright, patent, and maritime law cases.

Venue

Is usually the district or county which is the residence of a principal defendant, where a contract was executed or is to be performed, or where an accident took place. However, the parties may agree to a different venue for convenience (such as where most witnesses are located).

Standing

Is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

State Court System

Circuit Courts-->Court of Appeals-->Supreme Court

Federal Court System

District Courts-->Court of Appeals-->Supreme Court

Pleadings

Pleading is the beginning stage of a lawsuit in which parties formally submit their claims and defenses. The plaintiff submits a complaint stating the cause of action -- the issue or issues in controversy. The defendant submits an answer stating his or her defenses and denials. The defendant may also submit a counterclaim stating a cause of action against the plaintiff. Pleadings serve an important function of providing notice to the defendant that a lawsuit has been instituted concerning a specific controversy or controversies. It also provides notice to the plaintiff of the defendant's intentions in regards to the suit.

Pre-trial motions

After the preliminary hearing and before a criminal case goes to trial, the prosecutor and the defense team usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

Methods of discovery

This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent "trial by ambush," where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence.

Pre-trial conference

A pretrial conference is a meeting of the parties to a case conducted prior to trial. The conference is held before the trial judge or a magistrate, a judicial officer who possesses fewer judicial powers than a judge.

Trial

A proceeding in which opposing parties in a dispute present evidence and make arguments on the application of the law before a judge or jury.

Post-trial motion

Once the judgment has been rendered, either party may file what is called a post trial motion, or motion which is filed after the trial is over. These post trial motions are filed with the trial court, not with the court of appeals. Most states set specific time limits and restrictions on the type of motions which can be filed following the conclusion of the trial. Some of the most common type of post trial motions include a motion for new trial, a motion for judgment notwithstanding the verdict (JNOV), or a motion to amend or nullify the judgment.

Appeal

An appeal is the process in which cases are reviewed, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law.

Alternative Dispute Resolution (ADR)

Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.

Arbitration

Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.

Mediation

Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.

Criminal Sanctions

In law and legal definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines.

Felony

The most serious type of crime; inherently evil crime. Most crimes against persons and some business-related crimes are felonies.



Misdemeanor

A crime that is less serious than a felony; not inherently evil but prohibited by society. Many crimes against property are misdemeanors.

Violations

A crime that is neither a felony nor a misdemeanor the is usually punishable by a fine.

Corporate Criminal Liability

In criminal law, corporate liability determines the extent to which a corporation as a legal person can be liable for the acts and omissions of the natural persons it employs. It is sometimes regarded as an aspect of criminal vicarious liability, as distinct from the situation in which the wording of a statutory offence specifically attaches liability to the corporation as the principal or joint principal with a human agent.

Responsible Corporate Officer Doctrine

The responsible corporate officer doctrine imposes strict liability on corporate officers based solely on their area of responsibility within the corporation, regardless of their knowledge of the underlying criminal activity or their participation in it.

Burglary

In common law, burglary is defined as "breaking and entering a dwelling at night" with the intent to commit a felony. Modern penal codes have broadened this definition to include daytime thefts from homes, offices, commercial buildings, and other buildings. In addition, the "breaking in" element has been abandoned by most modern definitions of burglary. Thus, unauthorized entering of a building through an unlocked door is sufficient.

Robbery

In common law, robbery is defined as the taking of personal property from another person or business by the use of fear or force.

Theft

Some states have dropped the distinction among the crimes of robbery, burglary, and larceny. Instead, these states group these crimes under the general crime of theft. Most of these states distinguish between grand theft and petit theft. The distinction depends on the value of the property taken.

Larceny

In common law, larceny is defined as the wrongful and fraudulent taking of another person's personal property that is not robbery or burglary. Most personal property--including tangible property, trade secrets, computer programs, and other business property--is subject to larceny. Neither the use of force nor the entry of a building is required. Some states distinguish between grand larceny and petit larceny. This distinction depends on the value of the property taken.

Arson

The malicious or willful burning of the dwelling of another person. Modern penal codes have expanded this definition to include the burning of all types of private, commercial, and public buildings.

Embezzlement

The fraudulent conversion of property by a person to whom that property was entrusted. Typically, embezzlement is committed by employer's employees, agents, or representative (e.g., accountants, lawyers, trust officers, treasurers). Embezzlers often try to cover their tracks by preparing false books, records, or entries. The key element here is that the stolen property was entrusted to the embezzler. This differs from robbery, burglary, and larceny, where property is taken by someone not entrusted with the property.

Extortion

Involves the obtaining of property from another, with his or her consent, induced by wrongful use of actual or threatened force, violence, or fear. Extortion occurs when a person threatens to expose something about another person unless that other person gives money or property. The truth or falsity of the information is immaterial. Extortion of private persons is commonly referred to as blackmail. Extortion of public officials is called extortion under color of official right.

Criminal Fraud

Obtaining title to property through deception or trickery constitutes the crime of false pretenses. This ascribe is commonly referred to as criminal fraud or deceit.

Money Laundering

Many criminals purchase legitimate businesses and run the money through those businesses to "clean" it before they receive the money.

Criminal Process

Arrest


Indictment or Information


Arraignment


Plea Bargain


Criminal Trial



Arrest

Before the police can arrest a person for the commission of a crime, they usually must obtain an arrest warrant based on a showing of probable cause. The police go before a judge and present the evidence they have for arresting the suspect. If the judge finds that there is probable cause to issue the warrant, she will do so. The police will then use the arrest warrant to arrest the suspect. Probable cause is defined as a the substantial likelihood that a person either committed or is about to commit a crime. An arrest can be made without obtaining an arrest warrant if there is no time to obtain one or it is otherwise not feasible to obtain a warrant prior to the arrest. Warrantless arrest must be based on probable cause.



Indictment

The charge of having committed a crime (usually a felony), based on a the judgment of a grand jury.

Information

The charge of having committed a crime (usually misdemeanor), based on the judgment of a judge (magistrate).

Arraignment

A hearing during which the accused is brought before a court and is (1) informed of the charges against him or her and (2) asked to enter a plea.

Nolo contendere

The accused agrees to the imposition of the penalty but does not admit guilt.

Plea Bargain

An agreement in which the accused admits to a lesser crime than charged. In return, the government agrees to impose a lesser sentence than might have been obtained and the case gone to trial.

Criminal Trial

At a criminal trial, all jurors must unanimously agree before the accused is found guilty of the crime charged.

Exclusionary Rule

A law that prohibits the use of illegally obtained evidence in a criminal trial.


Fruit: the evidence


Tree: the officer who provides it

Good faith exception

This exception allows evidence otherwise obtained illegally to be introduced as evidence against the accused if the police officers who conducted the unreasonable search reasonably believed that they were acting pursuant to a lawful search warrant.

Intentional Torts

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff's injuries.

Assault

(1) The threat of immediate harm or offensive contact, or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary.

Battery

Unauthorized and harmful or offensive physical contact with another person that causes injury. Basically, the interest protected here is each person's reasonable sense of dignity and safety. Direct physical contact, such as intentionally hitting someone with a fist is batter. Indirect physical contact between the victim and the perpetrator is also battery, as long as injury results. Assault and battery often occur together, although they do not have to.

Transferred Intent Doctrine

Sometimes a person acts with the intent to injure one person but actually injures another. The transferred intent doctrine applies to such situations. Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim of the act. The victim can then sue the defendant.

False Imprisonment

The intentional confinement or restraint of another person without authority or justification without that person's consent. The victim may be restrained or confined by physical force, barriers, threats of physical harm, or the perpetrator's false assertion of legal authority. A threat of future harm or moral pressure is not considered false imprisonment. The false imprisonment must be complete.

Invasion of Privacy

The law recognizes each person's right to live his or her life without being subjected to unwarranted and undesired publicity. A violation of this right constitutes this tort. If a fact is public information, there is no claim to privacy. However, a fact that was once public (e.g., commission of a crime) may become private after the passage of time. Placing someone in a "false light" constitutes an invasion of privacy.

Defamation

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally or accidentally published to a third party. Opinions however, are not actionable.

Libel

A false statement that appears in writing or other fixed medium.

Slander

An oral defamatory statement.

Disparagement or Trade Libel

False statements about a competitor's products, services, property, or business reputation. The plaintiff must show that the defendant (1) made an untrue statement about " "; (2) published that untrue statement to a third party; (3) knew the statement was not true; and (4) made the statement maliciously.

Fraud

The intentional defrauding of a person out of money, property, or something else of value. Four things must be proven: (1) The wrongdoer made a false representation of material fact, (2) The wrongdoer had knowledge that the representation was false and intended to deceive the innocent party, (3) The innocent party justifiably relied on the misrepresentation, and (4) The innocent party was injured.

Intention Infliction of Emotional Distress

A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. Many states require that this mental distress be manifested by some form of physical injury, discomfort, or illness.

Malicious Prosecution

1) The plaintiff in the original lawsuit (now the defendant) instituted or was responsible for instituting the original lawsuit.


2) There was no probable cause for the first lawsuit (it was a frivolous lawsuit).


3) The plaintiff the original action brought it with malice.


4) The original lawsuit was terminated in favor of the original defendant (now the plaintiff).


5) The current plaintiff suffered injury as a result of the original lawsuit.

Negligence

A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.


1) The defendant owed a duty of care to the plaintiff


2) The defendant breached this duty of care


3) The plaintiff suffered injury


4) The defendant's negligent act caused the plaintiff's injury


5) The defendant's negligent act was the proximate cause of the plaintiff's injuries.

Duty of Care

The obligation people owe each other not to cause any unreasonable harm or risk of harm.


The reasonable person standard


The reasonable professional standard

Breach of the Duty of Care

A failure to exercise care or to act as a reasonable person would act.

Injury to Plaintiff

A plaintiff's personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant's negligence.

Actual Cause

The actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven. Causation in fact.

Proximate Cause

A point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions. Foreseeability.

Special Negligence Doctrines

Professional Malpractice


Negligent Infliction of Emotional Distress


Negligence Per Se


Res Ipsa Loquitur


Good Samaritan Laws

Professional malpractice

The liability of a professional who breaches his or her duty of ordinary care.

Negligent Infliction of Emotional Distress

A tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct.


Bystanders who witness the injury or death of a relative is the most common but the following must be proven:


1) A close relative was killed or injured by the defendant


2) The plaintiff suffered severe emotional distress


3) The plaintiff's mental distress resulted from sensory and contemporaneous observance of the accident.

Negligence Per Se

Statues often establish duties owed by one person to another. The violation of a statute that proximately causes an injury is this. The plaintiff in such an action must prove that (1) a statute existed, (2) the statute was enacted to prevent the type of injury suffered, and (3) the plaintiff was within a class of persons meant to be protected by the statute.

Res Ipsa Loquitur

A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone's negligence. The burden switches to the defendant to prove that he or she was not negligent.

Good Samaritan laws

A statue that relieves medical professionals from liability for ordinary negligence when they stop and render aid to victims in emergency situations.

Defenses Against Negligence

Superseding or Intervening Event


Assumption of the Risk


Contributory Negligence


Comparative Negligence

Superseding or Intervening Event

An event for which a defendant is not responsible. The defendant is not liable for injuries caused by the superseding or intervening event.

Assumption of the risk

A defense a defendant can use against a plaintiff who knowingly and voluntary enters into or participates in a risky activity that results in injury.

Contributory Negligence

A doctrine that says the plaintiff who is partially at fault for his or her own injury cannot recover against the negligent defendant.

Comparative Negligence

Many states have replaced the doctrine of contributory negligence with the doctrine of comparative negligence, also called comparative fault. Under this doctrine, damages are apportioned according to fault.

No Duty to Rescue

A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party in peril. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue.

Strict Liability

This doctrine holds that (1) there are certain activities that can place the public at risk of injury even if reasonable care is taken and (2) the public should have some means of compensation if such injury occurs.

Product Liability

The liability of manufacturers, sellers, and others for the injuries caused by defective products.

Product Liability: Negligence

A tort related to defective products in which the defendant has breached a duty of due care and caused harm to the plaintiff.



Product Liability: Misrepresentation

A tort in which a seller or lessor fraudulently misrepresents the quality of a product and a buyer is injured thereby.

Product Liability: Strict Liability

A tort doctrine that makes manufactures, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective of fault.

Who is liable?

All in the chain of distribution, all manufacturers, distributors, wholesalers, retailers, lessors and subcomponent manufactures involved in a transaction.

Who can recover?

Because strict liability is a tort doctrine, privity of contract between the plaintiff and the defendant is not required. Users include the purchaser or lessee, family members, guests, employees, customers, and persons who passively enjoy the benefits of the product.

Product Defect

Something wrong, inadequate, or improper in the manufacture, design, packaging, warning, or instructions about a product.

Defect In Manufacture

A defect that occurs when the manufacturer fails to (1) properly assemble a product, (2) properly test a product, or (3) adequately check the quality of a product.

Defect in Design

A defect that occurs when a product is improperly designed.


Risk-utility analysis: This requires the court to consider the gravity of the danger posed by the design, the likelihood that injury will occur, the availability and cost of producing a safer alternative design, the social utility of the product, and other factors.


Consumer expectation test: requires a showing that the product is more dangerous than the ordinary customer would expect.

Failure to Warn

A defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown.

Defect in Packaging

A defect that occurs when a product has been placed in packaging that is insufficiently tamperproof.

Failure to provide adequate instructions

A defect that occurs when a manufacturer does not provide detailed directions for safe assembly and use of a product.

Defenses to Product Liability

Generally known danger


Government contractor defense


Abnormal misuse of a product


Supervening Event


Assumption of the Risk

General known danger

Certain products are inherently dangerous and are known the general population to be so. Manufacturers and sellers are not strictly liable for failing to warn of generally known dangers.

Government contractor defense

Defense and other contractors that manufacture products to government specifications are not usually liable if such a product causes injury.

Abnormal misuse of a product

A manufacture or seller is relieved of product liability if the plaintiff has abnormally misused the product.

Supervening event

The manufacturer or seller is not liable if a product is materially altered or modified after it leaves the seller's possession and the alteration or modification causes an injury.

Assumption of the risk

The defendant must prove (1) the plaintiff knew and appreciated the risk and (2) the plaintiff voluntarily assumed the risk.

Statute of Limitations

A statute that requires an injured person to bring an action within a certain number of years from the time that he or she was injured by a defective product.

Statute of repose

A statute that limits the seller's liability to a certain number of years from the date when the product was first sold.

Contributory negligence

A party who is partially at fault for causing his or her own injuries is barred from recovering damages from the defendant in a product liability action.

Comparative negligence

Liability is assessed proportionately to the degree of fault of each party. Damages are apportioned accordingly.