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111 Cards in this Set
- Front
- Back
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What is "law"? |
A rule of civil conduct prescribed by the supreme power in a state commanding what is right & prohibiting what is wrong. |
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Positive Law |
Written laws of a country that apply to its citizens. - May result in legal conduct, but may not be ethical. |
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Primary Sources of Law |
Establish rights & obligations of parties. Used to decide cases that are heard by courts. Sources include: - Constitutions - Statutes - Regulations - Case Law |
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Secondary Sources of Law |
Summarize & clarify the primary sources of law. Used as guidance in interpreting primary sources of law. Sources include: - Encyclopedias - Compilations - Articles |
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Constitutional Law |
"Supreme Law of the Land". (State Constitutions & U.S. Constitutions, but State Constitutions should not conflict with the U.S. Constitution) Final judgment in cases. |
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Statutory Law |
Laws enacted by elected legislative bodies. (Congress/State Legislatures) |
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Ordinances |
Passed by local governments. (City council, county commission) - Executive orders fall into this category |
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Uniform Statutes |
Proposed model legislation. - Only become enforceable when they are enacted by a state's legislature |
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Administrative Law |
Rules, orders, & decisions of federal and state agencies. |
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Federal Agencies |
Power delegated by Congress to create rules and carryout the purpose of laws passed by Congress. Operated by cabinet departments. (Ex: FDA, EPA, USPTO) |
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Independent Agencies |
Officers serve fixed terms & can only be fired for cause. President can appoint for 3-5 years. (Ex. SEC, FCC, FTC) |
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Case Law (Common Law) |
Judicial Law - judge-made Legal rules announced in court decisions, which then become precedent for determining later controversies with similar facts. |
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Common Law (Where to Find Decisions) |
- Common Law is established through court opinions - Opinions are found in volumes of books called "reporters" |
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Stare decisis |
"To stand by that which is decided" Legal doctrine based on precedent. Makes laws more stable & predictable |
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Legal Remedies |
Monetary value (Money, property, land) |
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Equitable Remedies |
Legal, personal value (Injunctions, specific performance, rescission) Appropriate when monetary damages are not enough to address the wrong |
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Legal Reasoning (IRAC) |
Method used by judges & lawyers to determine what law applies to disputes - Issue - Reasoning - Application - Conclusion |
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Jurisprudence |
The study of law & ethical values used in defining what law should be. |
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Positivist School of Jurisprudence Thought |
Written laws of a given country or society. Issued by government. Laws lack moral components & provide minimum ethical standard Must be obeyed regardless of whether they are "just" |
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Natural Law School of Jurisprudence Thought |
Assumes that law, rights, & ethics are based on universal moral principles inherent in nature that people can discover through natural intelligence or reason What is fair, right, & according to individuals' own sensibilities. - Natural rights |
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Substantive Law |
- Laws that define, describe, regulate, & create legal rights & obligations - Rules that govern people's relations with each other (Ex: Contracts, torts, property) |
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Procedural Law |
- Laws that establish the processes for enforcing the rights established by substantive law and settling disputes. (Ex: Procedures for filing lawsuits, statutes of limitation, search warrants) |
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Criminal Law (Substantive & Procedural) |
Substantive (Ex: It is a felony to commit murder.) Procedural (Ex: A search warrant is required for a search of an individual's house for evidence.) |
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Civil Law (Substantive & Procedural) |
Substantive (Ex: Remedies are available to a person who is harmed by another's negligence.) Procedural (Ex: Statute of limitations states that an injured party has 1 year from date of injury to file a lawsuit.) |
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Civil Law (Definition, Objective, & Burden of Proof) |
- Rules that define & regulate the rights & duties between persons or between persons and the government. - Compensatory Objective Plaintiff's burden of proof "Preponderance of the evidence" (< 50%) |
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Criminal Law (Definition, Objective, & Burden of Proof) |
- Rules designed to protect the public & vindicate wrongs committed against society. - Punitive Objective - Government's burden of proof "Beyond a reasonable doubt" |
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Double Jeopardy |
Prevents the same government from prosecuting the defendant more than once for the same criminal offense. |
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Code of Federal Regulations |
A compilation of rules & regulations issued by Federal administrative agencies. |
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Article III of U.S. Constitution |
Establishes the Supreme Court. |
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Article I of the U.S. Constitution |
Gives Congress power to create U.S. District Courts & U.S. Courts of Appeals. |
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Judicial Review |
The power of federal courts & state courts to determine the constitutionality of of statues, administrative laws, & executive orders. Important check on legislative & executive branches. Established in Marbury v Madison |
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Jurisdiction |
The power to speak the law. |
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Subject Matter Jurisdiction |
Jurisdiction over the subject matter of the dispute. |
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Personal Jurisdiction (In Personam) |
Jurisdiction over the defendant or the property that is the subject of the lawsuit. |
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Personal Jurisdiction (Definition) |
Based on defendant's residence, location, or activities in the state. |
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State Long Arm Statutes |
States use to assert personal jurisdiction over nonresident defendants who have engaged in certain activities in the state. |
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Subject Matter Jurisdiction (Definition) |
Courts that can decide cases based on a wide range of issues or specific types of issues depending on their jurisdiction. |
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Federal Court Jurisdiction |
Exclusive subject matter jurisdiction over certain types of cases stipulated in some federal statutes or the U.S. Constitution. - Federal Crimes, Patent & Copyright Claims, Antitrust, Military, Bankruptcy, International Treaties, Federal Crimes |
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Diversity of Citizenship |
- Federal Court Jurisdiction - Plaintiff & defendant are residents of different states AND the amount of controversy is <$75K |
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Concurrent Jurisdiction |
- Both state & federal courts have jurisdiction to hear a case. - Plaintiff chooses with which court to file the case. |
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Court Structure |
- TN Supreme Court - Court of Appeals/Court of Criminal Appeals - Circuit Court/Chancery Court - Juvenile/General Sessions/Municipal Court |
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Cases Chancery Courts Can Hear |
- Civil - Probate |
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Cases Civil Courts Can Hear |
- Civil - Criminal |
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Purpose of Appellate Courts |
- Limited to review of questions of law to determine of the lower court committed an error. - Review is based on trial record. |
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Which Circuit Court of Appeals Does TN Reside? |
6th Circuit Court of Appeals Located in Cincinnati |
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American Rule |
Each party pays its own legal costs. |
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English Rule |
The losing party pays the legal costs of both parties. |
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Lack of Proper Summons Service |
Results in dismissal of lawsuit upon motion of the defendant.
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Failure to File an Answer |
Results in default judgment in favor of the plaintiff. |
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Motion to Dismiss |
Filed by defendant prior to filing an Answer. |
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Motion for Summary Judgment |
Request for the court to grant a judgment in the moving party's favor without a trial. - Supported by submitted evidence |
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Discovery |
Process by which parties search for & obtain from the other party information that is relevant to the case. |
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Deposition |
Oral statements made under oath in response to oral questions. |
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Interrogatories |
Written answers given to written questions. |
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Request for the Production of Documents |
Providing copies of documents. |
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Request for Admissions |
Submits to the other party admission of truths where applicable. |
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Res Judicata |
Doctrine that bars subsequent litigation against the same defendant over the same civil dispute that has already been fully litigated. |
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Mediation |
A neutral third party acts as a mediator to facilitate communication between parties & guide them toward a voluntary settlement.
- Do not impose a solution |
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Arbitration |
Arbitrators hold a hearing regarding a dispute submitted and make a final & binding decision (award) in the matter. |
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Setting Aside an Arbitration Award |
Courts RARELY set aside arbitration awards even if the arbitrator makes an erroneous finding of fact or interprets law incorrectly. |
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Federalism |
Form of government where lawmaking authority is divided between two sovereigns - the federal government and the states |
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3 Branches of U.S. Government |
- Executive ( Enforces laws) - Legislative (Makes laws) - Judicial (Interprets laws) |
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Privileges & Immunities Clauses |
Prohibits states from imposing unreasonable burdens on citizens from other states. Substantial reason is required for a state to treat non-citizens differently than its own citizens. |
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Full Faith & Credit Clause |
Ensures that judgments of one state will be honored & enforced in all states (Ex: Wills, child support agreements, marriages) |
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Congress' Derives Its Powers |
Powers are derived from Art. 1, Section 8 |
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Commerce Clause |
Promotes national commercial activity by preventing states from engaging in protectionism. BUT court held that Federal laws prohibiting sale & distribution of pot may be enforced by fedearl authorities in states that legalized pot for medical purposes. |
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Dormant Commerce Clause |
Only Congress can regulate activities that substantially affect interstate commerce & that states cannot legislate in areas affecting interstate commerce. Limitation on states is not specifically stated in the commerce clause. |
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Tort |
A civil wrong. A breach of legal duty owed to another that causes them harm or injury. Tort law designed to compensate those who suffer a lose or injury due to another party's violation of certain legally protected interests. |
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Tortfeasor |
A person who commits a tort. |
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State Common Law |
Primary source of law that governs most tort actions. |
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Restatement of Torts |
Secondary source of of law that is an authoritative compilation of general legal principals of tort law followed in most states. |
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Intentional Torts |
Wrongs resulting from deliberate actions of the defendant. |
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Negligence Torts |
Occur when the defendant's actions were unreasonably careless or unsafe. |
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Strict Liability Torts |
Liability without fault - do not depend on the degree of carefulness or the fault of the defendant, but are established when certain actions cause damages. |
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Differences Between Torts & Crimes |
Torts are private wrongs that give rise to civil actions. Crimes are public wrongs prosecuted by the government. |
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Damages in Tort Actions |
Compensatory Damages - awarded to compensate for actual losses. |
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Special Damages |
Economic Damages - monetary losses suffered by the victim |
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General Damages |
Non-Economic Damages - non-monetary aspects of the harm suffered by the victim |
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Punitive Damages |
Awarded to the plaintiff (in addition to compensatory damages) in cases where tortfeasor's actions were willful, reprehensible, & malicious. Awarded only in cases of intentional torts & gross negligence. |
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Intentional Torts |
Tortfeasor must intend to commit an act involving deliberate actions. |
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Negligence Torts |
Careless or unintentional conduct. |
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Assault |
An intentional act that causes a person to be "in apprehension of" an immediate harmful or offensive bodily contact. Accomplished by actions or words. |
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Battery |
A harmful or offensive physical contact that is intentionally performed. Intent to hurt the victim is not required. Harm may be emotional or physical. May be preceded by assault, but may occur without assault. |
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False Imprisonment |
Intentional confinement or restraint of another person's activities against their will & without justification. |
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Intentional Infliction of Emotional Distress |
Claim arises from an intentional act of extreme & outrageous conduct resulting in severe emotional distress. |
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Defamation |
An untrue statement of fact about a person that would tend to hurt his reputation. Fact must be communicated to at least one third-party. Statements of opinion are generally not actionable. |
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Slander |
Spoken defamation |
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Libel |
Written defamation |
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Required Elements of Defamation Claim |
1. Untrue statement of fact made about the plaintiff with the intent to harm their reputation. 2. Publication of the untrue statement to a third-party. 3. Damages in the form of economic damages must be proven to establish defendant's liability. |
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Defenses to Defamation |
Truth is an absolute defense to a defamation claim. |
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Invasion of Privacy |
Violation of a person's right to be "left alone". 1. Appropriation of identity 2. Intrusion upon plaintiff's seclusion or into plaintiff's private affairs. 3. Publishing information that places person in false light. 4. Public disclosure of private facts that an ordinary person would find objectionable. |
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Appropriation |
The right of publicity is the unauthorized use of a person's name or likeness for commercial purposes without permission. |
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Fraudulent Misrepresentation |
Involves making intentional misrepresentations for personal gain |
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Required Elements for Fraudulent Misrepresentation Claims |
1. Misrepresentation of material facts with knowledge that they are false. 2. Intent to induce another party to rely on misrepresentations. 3. Justifiable reliance by deceived party. 4. Damages suffered as a result of victim's reliance. 5. Causal connection between misrepresentation and the injury suffered. |
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Business Torts |
Wrongful interference with a contractual relationship. 1. Valid contract must exist between two parties. 2. Third party must know that contract exits. 3. Third party must intentionally induce one of two parties to break contract. |
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Conversion |
The act of depriving an owner of personal property without the owner's consent & without just cause THEFT |
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Negligence |
A tort based on careless conduct that injures another. Negligent actions did not intend to bring about the consequences of the actions. |
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Elements of Negligence |
1. Duty - defendant owed a "duty of care" 2. Breach - defendant breached that duty 3. Injury/damages - Plaintiff suffered legally recognizable injury 4. Causation - Defendant's breach caused the plaintiff's injury (both "cause in fact" & "proximate cause" must be proven |
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Negligence - Duty |
All persons have the duty to exercise "reasonable care" in their dealings with others. No general duty to aid or rescue strangers in peril Each person has a duty to act like an "ordinary, reasonable, prudent person" would in the same circumstances. |
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Duty of Professionals |
Doctors, lawyers, engineers, accountants, etc. are held to higher standards of care based on the special knowledge & ability required for their profession. |
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Duty of Landowners |
Must exercise reasonable care to protect people from harm on their property. Care should be taken to identify & remove risks and to warn invitees of foreseeable risks. |
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Negligence: Causation |
Injured party must show that breach of duty caused resulting harm. |
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"Cause in Fact" |
Actual cause - Defendant's unreasonable conduct must be the cause of plaintiff's injury. |
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"Proximate Cause" |
Legal cause - exists when connection between the defendant's conduct and the resulting injury is strong enough to justify imposing liability. Injuries must be foreseeable. |
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Negligence: Injury/Damages |
Plaintiff must prove that defendant's conduct resulted in injury. Compensatory damages are standard awards. Punitive damages apply only in cases of gross negligence |
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Negligence Per Se |
Negligence "in or of itself" occurs when a defendant has violated a statute or ordinance providing for criminal penalty & that violation causes injury to the plaintiff. |
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Assumption of Risk |
Plaintiff is aware of a risk and still chooses to engage in an activity, then he is barred from recovering damages related to dangers normally associated with the activity. |
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Contributory Negligence |
A plaintiff's own carelessness contributed to his injuries, the defendant is not liable for damages. |
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Comparative Negligence |
Negligence of the plaintiff in connection with her injury does not bar recovery from the defendant. Damages are reduced accordingly. |
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Liability Without Fault |
Tortfeasor was as careful as they could be. They were not negligent, but the nature of the activity in which they were involved makes them liable. |
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Product Liability |
Strict liability that applies to manufacturers & distributors of harmful or defective products. |
