Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
119 Cards in this Set
- Front
- Back
|
Common Law
|
Laws that come from the courts
|
|
|
Statutory Law
|
Laws that come from the state and federal legislatures
|
|
|
Statutes
|
Laws that come from the state and federal legislatures
|
|
|
Precedent
|
Prior case
|
|
|
Theory of Staredecisis
|
Latin phrase meaning "let the decision stand." This theory creates common law
|
|
|
Who can overturn statutes?
|
The judicial system
|
|
|
Substantive Rules
|
State parties' rights; what you can and can't do
|
|
|
Procedural Rules
|
Process for settling disputes
|
|
|
Main Purposes of the U.S. Constitution
|
1. established govt
2. established state powers |
|
|
Delegated Powers
|
Powers delegated to the federal govt
|
|
|
Reserved Powers
|
Powers reserved by the state governments
|
|
|
Federal vs. State Powers
|
Powers of the federal govt are delegated by the U.S. Constitution. All other powers are automatically given to the state governments
|
|
|
State Constitutions
|
Create state government. All state governments have 3 branches: executive, judicial, and legislative
|
|
|
Equity
|
An equitable remedy when the legal remedy is unjust or insufficient
|
|
|
Injunction
|
An equitable remedy. Prohibitory; "don't do..."
|
|
|
Specific Performance
|
An equitable remedy. Court order to do something you have already agreed to do. In the case of a seller/buyer dispute, it usually only occurs if the item is unique or rare
|
|
|
Administrative Law
|
Laws created by agencies
|
|
|
Criminal Law
|
Statutory. Seeks to impose a fine or imprisonment for its violation. Government prosecutes the offender
|
|
|
Civil Law
|
Disputes between two parties. State isn't involved, but only provides a level playing field for the parties. Victim sues the offender
|
|
|
Double Jeopardy
|
No double jeopardy between civil and criminal offenses. Offender can be prosecuted by the govt in a criminal suit and the victim can sue the offender in a civil case
|
|
|
Law and Ethics
|
Law is at the bottom of ethics
|
|
|
Legal Positivism
|
Decisions stand, regardless of morality. "Law is what the sovereign says it is"
Most people are legal positivists to a degree |
|
|
Natural Law
|
Laws must have a good moral basis. "An unjust law is no law at all and need not be obeyed"
|
|
|
Legal Realism
|
Enforcers determine if the law is applied in a fair and consistent way. "Enforcement of the law is more important than the law itself"
|
|
|
Jurisprudence
|
"What is law" (i.e. legal positivism, natural law, and legal realism).
Schools of thought that affect how the law is interpreted. |
|
|
Jury Nullification
|
Part of natural law. Jury decides written law doesn't apply to the case due to other circumstances
|
|
|
Stakeholders
|
Those who are impacted
|
|
|
Types of Alternative Dispute Resolution (ADR)
|
1. Negotiation
2. Mediation 3. Arbitration |
|
|
Three Areas of Law
|
1. Alternative Dispute Resolution (ADR)
2. Litigation / court system 3. Civil suits |
|
|
ADR: Negotiation
|
-Parties made offers and counteroffers for settlement
-Done face-to-face or through lawyers |
|
|
ADR: Mediation
|
-Usually mutual decision to go to mediation
-Tries to lead parties to a compromise -Keeps parties on point, staying away from pettiness and focusing on major issues |
|
|
What powers do mediators have?
|
None. They don't have power to render a decision or make parties do anything
|
|
|
Is mediation required?
|
Required when ordered by a judge. Always recommended though
|
|
|
ADR: Arbitration
|
-Normally binding decision rendered (called an award)
-Award dictates winner and tells parties what to do -Closed, private system. Doesn't go into case books. |
|
|
Is arbitration required?
|
Can be required when ordered by a judge or when specified in a contract (i.e. credit card and insurance contracts)
|
|
|
Arbitration and the Courts
|
-Going into arbitration means you cannot later sue.
-Courts say arbitration awards stand unless you can show gross misconduct or malfeasance on arbitrator's part. -A mistake in applying the law will not be overturned by a court. |
|
|
Litigation
|
Lawsuits. Process of filing claims in court and ultimately going to trial
|
|
|
Jurisdiction
|
Power to speak the law.
If a court lacks jurisdiction, its decision is void. |
|
|
Personal Jurisdiction
|
Determines what state you can file suit in.
"Can I make you personally responsible?" |
|
|
In Rem Jurisdiction
|
Determines what state you can file suit in.
Jurisdiction over the thing (who owns the thing) |
|
|
Subject Matter Jurisdiction
|
Determines which court level to file suit in
|
|
|
Tx Court System:
Local Trial Courts of Limited Jurisdiction |
1. Justice (JP) Courts
2. Municipal Courts |
|
|
Tx Court System:
County Trial Courts of Limited Jurisdiction |
1. Constitutional County Courts
2. Statutory County Courts (aka County Courts at Law) |
|
|
Tx Court System:
State Trial Courts of General and Special Jurisdiction |
District Courts
|
|
|
Tx Court System:
Intermediate Appellate Courts |
Courts of Appeals
|
|
|
Tx Court System:
Highest Appellate Courts |
1. Texas Supreme Court
2. Court of Criminal Appeals |
|
|
Justice (JP) Courts
|
-Limited jurisdiction
-Civil suits up to $10,000 -Class C misdemeanors (crimes punishable by fine only) -JPs are elected and don't have to be lawyers -Statutory courts -Lowest level courts |
|
|
Justice (JP) Courts in Texas
|
822 courts
822 JPs |
|
|
Constitutional County Courts
|
-Limited jurisdiction
-Civil suits of $200 - $10,000 -Judges are elected and don't have to be lawyers -Established by state constitution -One court in each county |
|
|
Constitutional County Courts in Texas
|
254 courts
254 judges |
|
|
County Courts at Law (aka Statutory County Courts)
|
-Civil suits up to $100,000
-Hear all litigation cases -Judges have to be lawyers -Created as needed, so may not be in every county |
|
|
County Courts at Law (aka Statutory County Courts) in Texas
|
230 courts
230 judges Established in 84 counties |
|
|
State District Courts
|
-General trial courts of the state
-Original jurisdiction in civil suits from $200 or $500 with no maximum limit -Original jurisdiction in felony cases -Can hear any suit above county jurisdiction -Some general, some specialized (i.e. only hear criminal, family) -Statutory courts -Every county served by a district court -Judges must be lawyers -More rigid system |
|
|
State District Courts in Texas
|
449 courts
449 judges 352 districts with only one county 97 districts have 2+ counties 13 district courts are criminal |
|
|
Trial vs Appeal
|
Trial: point at which evidence is introduced. Questions of law. Purpose is to get facts before facts deciders
Appeal: no new facts introduced. Only read transcripts of trials |
|
|
Civil Trial vs Criminal Trial
|
Civil:
1. Judge gives questions to the jury 2. Jury decides the facts (answers the questions) 3. Judge applies the law to the facts Criminal: 1. Jury applies the law to the facts 2. Jury returns a general verdict--guilt or innocence 3. If guilty, judge determines punishment |
|
|
Hung jury
|
aka Mistrial
Anything besides 12-0 vote of guilt. Defendant can be retried. |
|
|
Mistrial
|
aka Hung Jury
Anything besides 12-0 vote of guilt. Defendant can be retried. |
|
|
Burden of Proof: Criminal vs Civil
|
Criminal: guilt must be PROVEN beyond a reasonable doubt. Higher burden of proof.
Civil: preponderance ("by the greater weight") of the evidence. Guilt/fault is more likely than not. Lower burden of proof. |
|
|
Felony
|
Mandatory punishment of at least 2 years in prison.
State district court has original jurisdiction. |
|
|
Texas Courts of Appeals
|
-Regional jurisdiction
-Initial appeals from trial courts -Both civil and criminal cases -Party submits writ of errors (application for appeal). Must specifically state what is wrong -Justices only review error(s) specified on writ of errors and look for reversible errors -Judges called Justices -No new evidence introduced -Decide questions of law |
|
|
Number of Texas Courts of Appeals
|
14 courts
80 justices |
|
|
Texas Supreme Court
|
-Appellate court
-Statewide jurisdiction -Final appellate jurisdiction -Only hear civil and juvenile cases -1 court -9 justices |
|
|
Texas Court of Criminal Appeals
|
-Statewide jurisdiction
-Final appellate jurisdiction -Only hear criminal cases -1 court -9 justices |
|
|
Generally, how many justices are on a top-level appellate court?
|
9
|
|
|
Generally, how many justices are on an intermediate appellate court?
|
3
|
|
|
Are justices in Texas elected or appointed?
|
Elected
|
|
|
Federal Courts
|
-Original jurisdiction for federal crimes
-Original jurisdiction in 2 types of civil cases: federal question cases and diversity cases |
|
|
Federal Question Case
|
Involves a claim based on the U.S. Constitution, a federal statute, or a federal treaty
|
|
|
Diversity Case
|
"Diversity of citizenship."
Purpose is to eliminate local bias. Two requirements: 1. Each plaintiff lives in a different state than each defendant. 2. At least $75,000 in good faith dispute. |
|
|
Federal Courts: Specific or Limited Jurisdiction
|
1. U.S. Bankruptcy Courts
2. U.S. Tax Courts |
|
|
U.S. District Courts (aka Federal District Courts)
|
-Primary trial courts
-Every state is served by one -Where most federal cases start -Each court only hears cases within their own jurisdiction |
|
|
U.S. Courts of Appeals
|
-12 circuits
-Every state is served by a circuit -3 justices hear each case |
|
|
U.S. Court of Appeals for the Federal Circuit
|
-Only hears appeals from the specialized federal trial courts
|
|
|
U.S. Supreme Court (aka Federal Supreme Court)
|
-Commonly hears cases about constitutionality.
-Final authority. -Parties submit writ of certiorari (cert), which is a request to hear the case. -Rule of Four: will hear a case if at least 4 justices agree to writ of cert. |
|
|
Rule of Four
|
Applies to the U.S. Supreme Court.
Will hear a case if at least 4 justices agree to writ of cert. |
|
|
Steps in Beginning Litigation
|
1. Pleading
2. Service of Process or Service of Citation |
|
|
Lawyer Fees
|
3 possibilities:
1. Flat fee 2. Hourly rate 3. Contingent fees |
|
|
Contingent Fees
|
Lawyer gets a percentage of the award
|
|
|
In Texas, a pleading for a civil case is called...
|
Original petition
|
|
|
Service of Process or Service of Citation
|
Notifying the other party of the suit. Usually done by govt official within the county. Can't move forward until other party is served. Last resort is to report citation in a newspaper classified ad. After a specified period of time, the other party will be considered served.
|
|
|
Failure to Respond to Service of Process or Service of Citation
|
If you don't show up to court on the date/time specified on the Service of Process or Service of Citation, you lose. Default judgment is made for the plaintiff.
|
|
|
In Texas' lower courts, how long do you have to respond to a Service of Process or Service of Citation?
|
Roughly 3 weeks
|
|
|
Pleading Steps
|
1. petition (civil suit) or complaint (criminal suit)
2. service 3. answer 4. counterclaim |
|
|
Answer to a Pleading
|
Answer is usually a denial, so then plaintiff has to prove the allegations. Assume a counterclaim will be made in response.
|
|
|
Counterclaim to a Pleading
|
Strategically, try to make a counterclaim to a pleading. Plaintiff can drop original suit but will still have to answer to the counterclaim
|
|
|
Class Action
|
Type of pleading. Plaintiff represents entire class of plaintiffs. Most class action suits have moved to federal courts by 2005 statute.
|
|
|
What kind of jurisdiction is Texas?
|
Texas is a plaintiff's jurisdiction.
|
|
|
Discovery
|
Allows both sides to uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial. Opportunity for you to find out other party's strategy.
|
|
|
Summary Judgment
|
Both parties agree to important facts, so jury is unnecessary. These usually fail because there's rarely agreement on the facts and appeal will cause the case to go to trial anyways. Disagreements on the facts go to trial.
|
|
|
Primary Types of Discovery
|
1. Written interrogatories
2. Depositions |
|
|
Written Interrogatories
|
One of two primary types of discovery. Written questions other party must answer under oath. Good for gathering basic info.
|
|
|
Depositions
|
aka Oral Depositions. One of two primary types of discovery. Looks essentially like out-of-court testimony. Can be taken of anyone. Done by oppsing lawyer. Everyone present except judge and jury. Interview under oath of other party or potential witnesses. More expensive, but better for getting info.
|
|
|
Jury Selection
|
aka Voir Dire. Strategically, you're trying to keep off jury members that may side with other party.
|
|
|
Challenges for Cause
|
Claiming a potential juror is unacceptable due to showing a significant bias. Judge has to approve challenge for cause.
|
|
|
Peremptory Challenge
|
Automatic strike of a potential juror without having to state a reason. 6 allowances per party.
|
|
|
Utilitarianism
|
Ethical theory of cost-benefit analysis (weighing pros and cons) to determine the way to go.
|
|
|
Jury Numbers
|
Generally 12 jurors with 2 alternates. Very quick cases may not have alternates. Highly publicized cases may have many more than 2.
|
|
|
Plaintiff's Case
|
1. Plaintiff's opening arguments
2. Plaintiff calls witnesses 3. Defendant questions witnesses 4. Defendant may move for directed verdict |
|
|
Defendant's Case
|
1. Defendant's opening arguments
2. Defendant calls witnesses 3. Plaintiff questions witnesses 4. Plaintiff may move for directed verdict 5. Closing arguments from both sides |
|
|
Directed Verdict
|
May be requested by opposing party after your case has been made. Asks judge to decide that other party has no case worth proceeding with. No harm in asking.
|
|
|
Reaching a Verdict
|
12-0 for criminal cases
10-2 for civil cases |
|
|
3 Sources of Law
|
1. common law
2. statutory law 3. administrative law |
|
|
Basic Purpose of U.S. Constitution
|
Framework for government
|
|
|
Separation of Powers
|
Included in U.S. Constitution. 3 branches, and checks and balances.
|
|
|
Marbury v Madison
|
Case established judicial review
|
|
|
Judicial Review
|
Court's ability to determine constitutionality of executive and legislative acts
|
|
|
Interstate Commerce
|
Clause in U.S. Constitution. Has become major tool for federal govt to control states, thereby increasing their power
|
|
|
Substantial Effect Rule
|
Congress may regulate any activity which, in aggregate, may have substantial economic effect on interstate commerce. A way for federal govt to dictate local commerce and activity.
|
|
|
Supremacy Clause
|
a VALID federal statue overrides conflicting state statutes
|
|
|
1st Amendment
|
free speech, religion
|
|
|
5th Amendment
|
1. Due Process Clause
2. Takings Clause 3. Right against self-incrimination |
|
|
14th Amendment
|
1. Equal protection
2. Due Process Clause (applies to states) |
|
|
Purpose of Bill of Rights
|
1st 10 amendments of U.S. Constitution. Intended to restrict what federal govt can do, but doesn't apply to states.
|
|
|
5th Amendment: Takings Clause
|
Federal govt can take your property for public use as long as you are paid fair value for the property
|
|
|
5th and 14th Amendments: Due Process Clauses
|
Govt can't take life, liberty, or property without due process of law. (This is the concept of fairness.)
5th applies to federal. 14th applies to states. |
|
|
14th Amendment: Equal Protection
|
State govt can't make discriminating laws.
|
|
|
Normal Remedy at Law
|
Damages
|
|
|
Role of Constitutional County Judge
|
Administrative officer for county affairs/planning. Heads county commissioners.
|
