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339 Cards in this Set
- Front
- Back
What is a statute
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an approved bill
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What is an ordinance
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local level law
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A trial is based on _________
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testimony
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US law is based on precedent, also called _____ _______
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stare decisis
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What is dranshop liability?
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if you serve a visibly intoxicated person, you are liable
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The name of the case is called the _______
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caption
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Who is the appellant?
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The party who is appealing the decision
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Who is the appellee?
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the person who won at the lower level and is being appealed against
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Whose name usually appears first in a citation?
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The plaintiff
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What does a citation tell you and what are its parts?
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A citation tells you where a case can be found.
Volume, Book (by geographic region), # of book, page number |
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What is an opinion?
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The unanimous decision of the court.
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When a judge concurs the decision, what does this mean?
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He agrees with the verdict, but for different reason
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What is a case of first impression?
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When an issue is brought about in court for the first time
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A primary source is written by the ___
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law itself
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Law reviews and Legal Encyclopedias are considered _________ _______
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Secondary Sources
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Explain Public Law
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Law that involves the rights of society which are represented by the government
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What are the three categories of public law?
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Criminal, Constitutional, and Administrative
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What are the four public classifications of crime?
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Treason, Misdemeanors, Felony's, and summary offenses
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What is a felony?
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A crime punishable by more than a year in jail
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What is a misdemeanor?
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A crime punishable by less than a year in jail
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When one is convicted of a summary offense, what is their punishment?
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A fine
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What does Actus Reus mean?
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You must prove the defendant committed the crime
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What does Mens Rea mean?
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Criminal Intent
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How is the caption named in public law cases?
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Society vs. Defendant
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How many articles and amendments in the constitution?
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7 Articles, 27 amendments
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What do the first three articles of the constitution accomplish?
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Creates doctrine of "separation of the powers"
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What is the 27th amendment?
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Congress cannot give itself a pay raise
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What are the four types of private law?
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Contracts, torts, property, and family
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What are the five elements of a contract
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Offer
Acceptance Consideration Capacity Legality |
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What is a tort?
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A private civil wrong
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What are the three kinds of torts?
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Negligence, Intentional, Products Liability
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What is negligence?
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Failure to do what a reasonable person would do under the circumstances
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What are the four elements of negligence?
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Duty
Breach of Duty Proximate Cause Damages |
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What are the five elements of an intentional tort?
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Assault
Battery Defamation Invasion of Privacy False Imprisonment |
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What is the difference between real property and personal property?
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Real property is everything attached to the land, Personal property is everything not attached to the land
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What is family law?
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Encompasses the rights, duties, and obligations involving marriages, civil unions, domestic partnership, child support, etc
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What is alimony?
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The award of money to support a former spouse
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What is a prenuptial agreement?
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A contract parties enter into before marriage on how the assets will be distributed upon divorce
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What is palimony?
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when parties live together, they agree to share assets and determine how they will be distributed
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What is a contract?
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Enforcement of promises voluntarily made
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What are the five elements of contracts
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Offer
Acceptance Consideration Capacity Legality |
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What must the contract offer cite?
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Subject Matter
Quantity Price |
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An advertisement at a stated price is merely an invitation to do what?
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Negotiate
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Define an acceptance of a contract
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An acceptance is a manifestation by the offeree to be bound by the terms of the offer
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A dissenting opinion is written when?
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A judge disagrees with the result reached by the majority
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What is status and process?
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A concept in which one can determine who might be the winner of a particular case based on the groups of people the law favors
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What is an administrative agency?
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A governmental body charged with administering and implementing particular legislation
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Administrative agencies are created through congressional action called _________ ____
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Enabling Acts
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What is the federal register?
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A Daily publication where administrative agencies' regulations are promulgated
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What is a unilateral contract?
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When one party makes a promise in exchange for an act
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What is a bilateral contract?
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When the parties exchange mutual promises to do some future act
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What is a tort
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Private civil wrong committed against another for which the law provides an award of money damages
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What are 3 types of civil wrongs in a business setting
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Unintentional, Intentional, Strict Liability
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What is Strict Liability?
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The responsibility imposed upon a business regardless of the care exercised or the precautions taken to prevent the harm
This liability may arise from owning a dangerous animal or by selling a defective product |
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What do Recoverable Damages include?
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Recoverable damages include lost wages, medical expenses, harm to property, and pain and suffering
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What is negligence?
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Failure to do what a reasonable person would do under the circumstances
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What are four elements of negligence?
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A duty must be owed
There must be a breach of duty The negligence must be the proximate cause of the harm The aggrieved party must sustain damages |
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The ______ has the burden of proving all four elements of negligence by the preponderance of evidence
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Plaintiff
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What is a duty of care
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Establishes the type of behavior a person must exhibit in a given situation
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In cases of negligence, what standard of care does a person hold?
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A person must conform to the standard of care of a “reasonable person under the circumstances”
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True/False: Generally, the law does make a distinction concerning the standard of care between adults of different ages
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False
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Negligence of a professional is known as __________
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malpractice
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What standard of care is a minor held to?
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A minor is held to the standard of care of a child of similar age, intelligence, and experience
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What is the Good Samaritan Status
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In the event of an emergency situation, this status encourages professionals to offer assistance when needed and only imposes liability in the event of gross misconduct
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What is a trespasser
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One who comes upon the premises of another without consent and with no legal right to be on the property
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What duty of care does one owe a trespasser?
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The only duty owed to a trespasser is to avoid injuring them through willful and wanton misconduct
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What is the attractive nuisance doctrine
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created to safeguard children who trespass on the land of another that contains an inviting but dangerous condition
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What is a licensee?
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A person who comes on the property of another with the owner consent or with the legal right to be on the land
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What is the most common type of licensee?
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Social Guest
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What is the duty of care for a licensee?
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The owner of the property is responsible for defects that were known of, or should have been known of, and the guest would not have known of.
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What is the duty of care for a business visitor?
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The owner of the property is responsible for defects that were known of, or should have been known of, and the guest would not have known of. There is also a duty for the owner to inspect his or her property for defects
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What is proximate cause?
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requires that there be a reasonable connection between the negligence of the defendant and the harm suffered by the plaintiff
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What is the legal definition of damages?
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The amount of money awarded to an injured person as the result of the wrongful or improper conduct of the defendant
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What are Compensatory Damages?
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the purpose of compensatory damages is to make an injured party whole by providing a sum of money that will return the aggrieved party to a position as though nothing ever happened
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What are Punitive Damages?
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May be claimed if the conduct of the wrongdoer is outrageous. The law will punish the party by awarding an additional sum of money to prevent the conduct from ever occurring again
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What is contributory negligence? Which States follow this rule?
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the failure of the plaintiff to act as a reasonable person under the circumstances.
North Carolina, Virginia, Alabama, Maryland, and the District of Columbia follow this rule |
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What is comparative negligence?
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As long as the plaintiff’s negligence is not greater than that of the defendant, the plaintiff may recover damages
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What is imputed negligence?
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because of a special relationship that exists between the parties, one person can be held liable for the negligence of another.
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What is an independent contractor?
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One who undertakes to preform the act requested on his own and is not subject to the control of an employer
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What are considered intentional torts?
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Theories of Liability include actions for a battery, assault, invasion of privacy, defamation, infliction of emotional distress, and false imprisonment
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What is emotional distress?
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A person who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable to that person for any bodily harm that may result from the emotional distress.
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What is Battery?
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The intentional touching of the body of another or an object closely associated with the body in an offensive or harmful manner
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What is an Assault?
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An act intended to put another in fear of an immediate battery
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What is considered to be invasion of privacy?
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An unwarranted intrusion of a person’s right to be left alone
Truth is not a defense to invasion of privacy |
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What is Defamation?
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A statement is defamatory if it is false and tends to harm the reputation of another or to lower him in the estimation of the community.
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What are the two categories of defamation?
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Libel and Slander
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What is Libel?
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The publication of defamatory matter by written or printed words
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What is Slander?
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Defamatory communication that is verbal or oral in nature
In order for the defamatory comment to be actionable, it must be conveyed to a third person, known as publication |
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What is False Imprisonment?
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The unlawful detention of a person against his or her will in a specific area
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What are the five elements of contract interference
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An enforceable contract
The defendant’s awareness of that contractual relationship The defendant’s intentional inducement to breach the contract A wrongful interference by the defendant to breach the agreement Actual damages |
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What is products liability?
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Defective products include those things that contain a manufacturing defect, lack of a proper warning, or a defect in the product’s design making it unsafe to a user or consumer
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What is the official definition of a crime
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an offense against society as determined by the legislature or considered a public wrong that carries the punishment of imprisonment or some other public sanction
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What is a white collar crime?
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illegal actions perpetrated in a business setting
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What is Burglary?
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Entering a building or occupied structure with the intent to commit a crime unless the premises is open to the public
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What is criminal trespassing?
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When a person enters the land of another without permission or no legal right to be there
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What is larceny?
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the taking and carrying away of property that belongs to another without the owner’s consent and with the intention of depriving the owner of the goods permanently
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What is embezzlement?
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The act by which someone takes ownership of property that has been entrusted to him with the fraudulent to deprive the owner of the property
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What is Robbery?
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Larceny by force or the threat of force
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What is the crime of receiving stolen property?
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When one intentionally obtains or disposes of property of another knowing that it has been stolen or believing that it has probably been stolen
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What is electronic fencing?
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When one uses the internet to sell property gained through unlawful means
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What is conspiracy?
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An all encompassing crime that allows the government to file charges against anyone who has participated in the planning or committing of a crime and to hold each liable for the actions of the other
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What is bribery?
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The act of offering something of value to another with the intent of influencing that person’s opinion or to have something done in return by that entity
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What is Money Laundering?
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Using a business to hide the transaction of illegal funds
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What is Insider Trading?
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Using information not available to the public to make financial decisions about stocks
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What are the two theories of insider trading?
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Classical Theory - Imposes liability on corporate insiders who trade on the basis of confidential information obtained by reason of their position within the business
Misappropriation Theory - Imposes liability on outsiders who trade based on the confidential information obtained by reason of their relationship with the person possessing the information |
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What is chapter 7 bankruptcy?
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extinguishes or liquidates all debts
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What is chapter 11 bankruptcy?
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adjusts debts either by reducing them or extending the period of payback
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What is chapter 13 bankruptcy?
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Allows reorganization of plans to repay debt
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What is a Respondeat Superior?
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doctrine allowing criminal liability of a business
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What does the Fourth Amendment say?
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The Fourth Amendment prohibits unlawful search and seizure and that all warrants must be issued upon probable cause
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How are warrants issued?
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Police officers must present evidence before a judge to be granted probable cause for a warrant
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What are the exceptions to needing a warrant
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Plain View
Emergency Search Incident to an Arrest Hot Pursuit Consent Search Incident to a General Police Measure Stop and Frisk |
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What is the obligation of a crime victim and or a witness?
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When either the victim or witness files a criminal complaint with the police
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Explain the preliminary hearing?
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Held before the District Justice
To determine whether or not there is probable cause that the defendant committed the crimes charged against them This hearing does not determine guilt |
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Explain the Arraignment?
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Takes place in the Court of Common Pleas
The District Attorney draws up an information a formal list of charges against the defendant This is to insure the defendant knows the charges against them and to determine if the defendant has a lawyer The defendant does not have to be present for the Arraignment |
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The trial is __ days after the Arraignment
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30
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The trial consists of the following events:?
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Opening statement
Case in chief - The prosecutor’s attempt at establishing the defendant's guilt Defense Each side is permitted to make a closing speech The judge charges the jury to make a decision Verdict |
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In federal court, the ___________________ is utilized to determine that probable cause exists
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Grand Jury Indictment
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The grand jury consists of __ people and a majority vote is required to indict.
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23
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What is an infamous crime?
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A crime that is punishable by imprisonment for more than 1 year
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What does the 8th amendment guarantee?
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The 8th amendment protects cruel and unusual punisment
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The creation of statutory law is the primary function of the legislature, what is statutory law?
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Designed to address specific problems in our society and to set forth rules and to regulate areas of concern
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What is Common Law?
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Common law is the empowerment of the judiciary to interpret the laws and establish standards of care
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What are opinions?
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(1) Judicial pronouncements that are rendered in the form of written explanations so that the parties to the litigation can understand the court’s reasoning
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When the case is appealed to a higher court, the person who appeals the decision is the ________
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Appellant
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the person against whom an appeal is filed is the _________
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Appellee
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What is the Majority Opinion?
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(a) A decision reached by more than half of the judges on a committee
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What is a dissenting opinion?
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(a) An opinion written by a judge who disagrees with the opinion - has no value
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What is a concurring opinion?
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(a) when the jurist agrees with the opinion but has a different logic in doing so
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What are the four main parts of a case?
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(a) The Action
(b) The Facts (c) The Issue (d) The Opinion of the Court |
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When a decision is _________, the appellate court determines the lower court made the correct decision
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Affirmed
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A case may be ________ when the appellate court finds that there was an error in the decision making or more evidence is needed
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remanded
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What is Binding Authority?
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Binding authority is finding a ruling exactly on point within the same jurisdiction
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What is Persuasive Authority?
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Persuasive authority is using rulings from other jurisdictions
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What are Form Books?
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Outline the necessary format for legal documents
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What is a treatise?
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A treatise is dedicated to a single topic or area of law and describes the law in basic succinct paragraphs, often referred to as “Black Letter Law”
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What is a Restatement?
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Considered a form of a treatise
Explains the law in relatively simple paragraphs which cite to a wide variety of cases on the issue |
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What are digests?
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Digests are compilations that list the primary sources of case law by topic
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Explain Case Law
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Written decisions issued by judges
Cases are collected in large volumes of books known as reporters |
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What are Statutes?
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Statutes, also referred to as Codes, are statements of the law passed by the legislative body of a given jurisdiction
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Statutes trump case law unless deemed _______________
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unconstitutional
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What is the Burden of Proof?
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The burden of proof is the obligation resting on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position.
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What is Common Law Marriage?
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A marriage in which the parties have the capacity to marry, agree to be married, and hold themselves out to the world as being married. This concept is no longer recognized in Pennsylvania
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What is a concurring opinion?
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An opinion written by a judge who agrees with the outcome of the case but wants to note a difference in logic for reaching the decision
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What is a court clerk?
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A court clerk keeps track of the exhibits, administers the oath to all who testify, and oversees the jury
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What is a dissenting opinion?
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A judge writes a dissent when he or she disagrees with the result reached by the majority; the dissent has no value as precedent
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What is a judicial decree?
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A judicial command, order, or precept, written or oral, from a court; a direction that a court has the authority to give and an individual is bound to obey.
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What is legislative enactment?
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the act of making or enacting laws
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What is a social host?
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One who furnishes alcoholic beverages to a guest
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What is Voyeurism?
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A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs or films the intimate areas of another person without their consent and knowledge and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place
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What is Public Law?
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Public Law involves the rights of society, and those rights are usually represented by a governmental agency
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Example of public law is a crime of ______
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murder
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What is Private Law?
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Private law involves matters between individuals
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What are examples of Private Law?
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Examples: leasing of an apartment, medical malpractice, purchasing a new car
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What are the major classifications of private law?
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Major classifications: contract law, tort law, property law, and family law
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What is a crime?
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A crime is a violation of those duties that an individual owes to his or her community and the breach of which requires the offender to make satisfaction to the public
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Who is violated by a crime?
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A crime is a violation of the rights of society and not the individual victim of the crime
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A ________ _________ can force a victim to testify against the accused if there is a compelling societal interest
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District Attorney
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Criminal laws are established by the legislature and are broken down into different categories based upon one thing - What is it?
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Criminal laws are established by the legislature and are broken down into different categories based upon one thing - the penalty for the offense
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How is treson defined?
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Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid or comfort
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What is needed to convict someone of treason?
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Can only be convicted if two witnesses testify or if the defendant confesses openly
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What is the burden of proof for a crime?
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The government has the burden of proving a defendant guilty beyond a reasonable doubt
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Which elements are necessary for criminal prosecution?
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Both Actus Reus and Mens Rea are necessary for criminal prosecution
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What is constitutional relativity? How did this come about?
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The Constitution is purposely written in broad and often vague terms so that it can adapt to changing times
This power was given to the judiciary in the decision of Marbury v. Madison |
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Article _ empowers the legislature to make the laws which the executive branch enforces pursuant to the authority to the President in Article _. Article _ designates the judiciary as that branch of government that interprets the Constitution
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I, II, III
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What is article IV of the Constitution?
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Each state will enforce and recognize the laws, legal records, and results of lawsuits from every other state. No state shall discriminate against citizens from another state
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What is article V of the Constitution
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Congress may propose Amendments to the Constitution based upon a two-thirds vote of both Houses of Congress or two-thirds of the states can call a convention to propose Amendments. Three-fourths of the states must ratify the proposed change before it may become an Amendment to the Constitution
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What is article VI of the constitution?
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This Constitution, and the laws and treaties made under it, are the supreme laws of the land
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What is article VII of the constitution?
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The Constitution became effective on September 17, 1787
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What is the first amendment?
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Citizens have the right to freedom of speech, press, and to assemble peaceably
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What is the second amendment?
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Citizens have the right to bear arms
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What is the third amendment?
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Citizens cannot be required to house soldiers in their homes during peace time
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What is the fourth amendment?
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Citizens are protected against unreasonable searches and seizures of both their person and their property
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What is the fifth amendment?
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No person can be tried twice for the same crime or be forced to testify against himself. A person’s life, liberty, or property cannot be taken away by the government without going through the proper and fair legal procedures
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What is the sixth amendment?
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A defendant in a criminal trial is entitled to legal representation and must be provided with a speedy and public trial by an impartial jury
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What is the seventh amendment?
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Citizens are entitled to jury trials in civil cases involving more than twenty dollars
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What is the eighth amendment?
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A court cannot impose cruel and unusual punishment or excessive bail on defendants
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What is the ninth amendment?
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Rights that are not specifically mentioned within the Constitution are held by citizens
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What is the tenth amendment?
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Rights that are not delegated to the federal government are reserved for the states and the citizens
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What is the eleventh amendment?
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Citizens are not permitted to sue states where they are not residents
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What is the twelfth amendment?
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The Electoral College will select the President and Vice President
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What is the thirteenth amendment?
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Slavery and involuntary servitude is abolished
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What is the fourteenth amendment?
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No state can make or enforce any laws which will take away the privileges and immunities of citizens; nor deprive any person of live, liberty, or property, without due process of law; nor deny any person within its borders the equal protection of its laws
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What is the fifteenth amendment?
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Citizens of all races and colors have the right to vote
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What is the sixteenth amendment
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Congress may tax income
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What is the seventeenth amendment?
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When a senator is required to leave office before his or her term in congress expires, the governor of the Senator’s state can appoint another to fill the position until the citizens of the state elect a new Senator
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What is the eighteenth amendment
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The manufacture, sale, or transportation of intoxicating liquors is prohibited. [REPEALED]
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What is the nineteenth amendment?
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Both male and female citizens have the right to vote
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What is the twentieth amendment?
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The President and Vice-President begin their terms on January 20; Senators and Representatives January 3. If the President-Elect died before being sworn in, the Vice-President-Elect becomes President
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What is the twenty-first amendment?
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The Eighteenth Amendment enforcing prohibition of intoxicating liquors is repealed
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What is the twenty-second amendment?
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The President may not be elected more than twice
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What is the twenty-third amendment?
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The District of Columbia is entitled to representation at the Electoral College
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What is the twenty-fourth amendment?
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Citizens cannot be charged a fee in order to vote
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What is the twenty-fifth amendment?
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When the President cannot perform his official duties, the Vice President will assume the duties of the President. The President can be impeached upon a two-thirds vote of Congress
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What is the twenty-sixth amendment?
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Citizens who are eighteen years of age and older have the right to vote
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What is the twenty-seventh amendment?
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Members of Congress cannot raise their pay while in office. Any law that provides for a pay raise for Congress cannot take effect until after the election, which follows the vote, granting the raise.
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What is an administrative agency?
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An administrative agency is a governmental body charged with administering and implementing particular legislation
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What is adjudication?
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Making a formal judgment or decision about a problem or disputed matter
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Review and overturning of an agency’s adverse determination is very _______
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limited
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Explain the offer of the contract
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A proposal by one party (offeror) to the other (offeree) manifesting a willingness to enter into a valid contract
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What is the consideration of a contract?
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Refers to what each party gives up in return for the actor promise of the other
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Explain having the capacity to enter the contract?
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Ensuring full understanding of the contract and the ability to understand fully is present
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The purpose and subject matter of the contract must be _____l
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legal
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When can a mistaken contract be void?
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A mistaken contract caused by both parties is voidable
A mistaken contract caused by one party is voidable when the effect of the contract is such that the enforcement of the contract would be unconscionable. Or, the other party had reason to know of the mistake or his fault caused the mistake The grounds for a justifiable mistake include: When the risk of the contract is granted to one person When one has limited knowledge that seems sufficient but turns out not to be |
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What is property law?
|
Property law deals with the rights and duties that arise out of the ownership or possession of real property and personal property
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What is real property?
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Real Property includes land and everything attached to that land
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What is personal property
|
Personal Property consists of all other property and would include a book, a car, money, or even a folding chair
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What is the difference between tangible and intangible property?
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Tangible property is a physical object
Intangible property is not a physical object Usually evidenced by a legal document |
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Explain a fixture
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A fixture is an item of personal property which, by reason of its being attached to a building, becomes part of the real estate
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What is family law and who is it regulated by?
|
Family Law encompasses the rights, duties, and obligations involving marriages, civil unions, domestic partnerships, divorce, custody, child support, paternity, and other family related issues. Regulated by the state
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What is marriage?
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Marriage is a contract between a man and a woman whereby they take each other to be husband and wife for life
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Legal dissolution of a marriage is called a _______
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divorce
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An _________ occurs when there is a legal impediment to a marriage so that the union is declared null and void from its inception
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Annulment
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What is Alimony?
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Alimony refers to the legal obligations of an individual to provide periodic payments for the support and maintenance of the spouse or former spouse
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What is Child Support?
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Child Support is that sum of money awarded to the custodial parent or caregiver for the support of a minor child
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What are Prenuptial Agreements?
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A contract entered into before the marriage or civil union that spells financial responsibility if the union fails
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What is Palimony?
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Support and division of property given to a non-married partner based upon a contract entered into by the parties before they separate
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True/false: It is possible to violate both private and public law
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True
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What is a Contract
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A contract is the voluntary exchange of promises between two or more entities creating a legal obligation in court
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What is the Uniform Commercial Code?
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A uniform act that regulates the sale of goods and certain other commercial transactions
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What is a Unilateral Contract?
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When one party makes a promise in exchange for an act, a unilateral contract is formed
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What is a Bilateral Contract?
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A bilateral contract is created when the parties exchange mutual promises to do some future act
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What is an Express Contract?
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An Express contract is one in which the parties spell out the specifics of their agreement in direct terms
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What is an Implied Contract?
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A contract is implied-in-fact when the promises are inferred by the conduct of the parties in view of the surrounding circumstances
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What are Implied-in-law contracts
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made to prevent unjust treatment
Example: A patient who must pay for their emergency room treatment |
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A _____ contract satisfies all of the requirements of a binding and enforceable contract
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Valid
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A contract is ________ if one of the legal parties has the legal right to withdraw from the arrangement without liability
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Voidable
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A contract is _____________ when it satisfies the technical requirements of a valid contract but will not be enforced by the court
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Unenforceable
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What is an offer
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An offer is a proposal by one party (offeror) to the other (offeree) manifesting a willingness to enter into a valid contract
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What are the three requirements of an offer
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Three requirements of an offer
A definite proposal Made with the intent to contract An advertisement is merely an invitation to discuss Communicated to the party for whom the offer is intended |
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An offer may be revoked __ ___ ____ before acceptance
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At Any time
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An __________ is the unconditional promise by a party to be bound by the terms of the offer
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Acceptance
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A change in the proposal by the offeree ___________ _ _________ of the offer and becomes a counter-offer
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Constitutes a Rejection
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What is the postal reorganization act?
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Statute making it illegal to send unsolicited products to customers in the mail
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What are auctions with reserve?
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Auctions where The auctioneer may reject the highest bid and remove the item from sale
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What are auctions without reserve?
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Auctions where The item must be sold to the highest bidder, regardless of the bid
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What is an Illusory Promise?
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A promise in which the act of performance is left solely to the discretion of one party
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What is a Moral Obligation?
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Doing something out of “love and affection”
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What is past consideration?
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Paying someone for something they did in the past
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What is surety?
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Someone who is primarily liable for the debt as though he or she borrowed the money
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What is a guarantor?
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Someone who is secondarily liable for the debt, after the debtor has defaulted
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When one of the individuals in the contract does not have the ________ to fully understand the ramifications of the contractual obligation, mutual assent to bargain is lacking.
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capacity
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What is the Statute of Frauds
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A statute ruling that certain types of contracts must be in writing
Generally pertains to the following agreements Contracts that cannot be performed within one year Contracts involving the sale or lease of real estate Contracts to be liable for the debts of another Contracts for the sale of goods over $500 |
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What did The Electronic Signature in Global and National Commerce Act do?
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Legalized the electronic signature
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What is a consumer?
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A consumer refers to an individual who enters into a transaction primarily for personal, family, or household purposes
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What is a good?
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A good means all things that are movable at the time of identification to a contract for sale.
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What is a seller?
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A seller means a person that sells or contracts to sell goods
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What is a sale
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A sale consists in the passing of title from the seller to the buyer for a price
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What is a merchant?
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A merchant is a person that deals in goods of that kind or otherwise holds itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction
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What is a buyer?
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A buyer buys goods in good faith
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What is a bill of lading?
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A bill of lading refers to a document evidencing the receipt of goods for shipment issued by an entity engaged in the business of transporting or forwarding goods
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What is Entrustment?
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Any entrustment of the possession of goods to a merchant who deals in goods of that kind gives the entity the power to transfer all rights of the entruster to a buyer in the ordinary course of business
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What is a Shipment Contract?
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The risk of loss will pass to the buyer when confirming goods are delivered to the carrier
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What is the Destination Contract?
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The risk of loss will pass to the buyer when confirming goods are delivered to the destination
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What is a Bailee?
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A third party who holds the buyer’s goods
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The liability of the goods transfers to the _____ upon delivery to a bailee
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buyer
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True/False: Merchants can revoke their offer to buy or sell goods
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False
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Businesses act through their ______ whether it is an employee or third party
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agents
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What is an example of an expressed and an implied agent?
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Expressed: Lawyer
Implied: Sales Clerk |
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What is Expressed Authority?
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An agent’s power is transcribed publicly
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What is Apparent Authority?
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A master’s conduct would lead a reasonable person to believe that the agent is acting on behalf of the master
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Which business type is the most common and simple, while being the least expensive to form?
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The Sole Proprietorship is the least expensive, most simple, and common business to form
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Which Business Organization has the greatest risk
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Sole Proprietorship has the greatest risk
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Which Business Organization has the greatest risk?
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Sole Proprietorship
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How can liability be reduced in a sole proprietorship
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Liability can be reduced by combining ownership with a spouse
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When does a sole proprietorship terminate?
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The business terminates whenever the owner stops doing business
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What is a partnership
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A partnership is an association of two or more entities to carry on a business as co-owners
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What are the three elements of a partnership
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Three elements of a partnership
The sharing of profits or loss by two or more people Joint ownership of the assets of the business An equal right in the management of the enterprise |
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What is Joint and Several Liability?
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A creditor must first seek satisfaction of the debt out of the partnership assets
If the partnership assets are not sufficient, the creditor may advance a claim against any single partner or all of the partners for the remaining partnership obligations |
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What is indemnification?
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When one partner sues the other partner or partners for reimbursement of partnership debts
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How are partnerships taxed?
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The profits of the business are apportioned to each partner to pay personal income tax on
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When will a partnership terminate
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The partnership will terminate at the expiration of the term of the partnership, when the business objectives have been reached, or when the partners agree to terminate the operation
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What is a dissolution
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When a partner ceases to be associated with the venture
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What is winding up?
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The process involving the collection and distribution of the partnership assets
Order of the distribution of assets: Third party creditors Refund of loans made to or for the firm by the partners The refund of capital contributions Distribution of the balance of assets |
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What is Buy-Sell Agreement
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Document that creates a process in advance on how the remaining partners are to buy out the leaving partner
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What is a limited partnership?
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A limited partnership is a business entity that consists of one or more general partners and one or more limited partners
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What is the liability of a limited partner?
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Liability of a limited partner is restricted to that person’s investment
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How will a limited partner be held fully liable?
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If the limited partnership is organized in an improper manner and is not fixed, they will have unlimited exposure
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What is the purpose of the Limited Liability Partnership
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Designated for professionals to avoid personal liability for the malpractice of other partners
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True/False: Since the corporation is its own person, its status is not changed by the death or sale of stock by a shareholder
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True
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Explain the liability of corporations?
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Shareholders are not personally liable for the payment of corporate debt in the absence of a personal guarantee
Only risk is their purchase of stock Shareholders can be found personally liable by piercing the corporate veil |
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What are Subchapter S Corporations?
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Profits are passed on directly to the shareholders and taxed to them, as profits would be in a partnership
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What are qualifications necessary for a subchapter s corporation?
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Must be a domestic corporation formed in a particular state
Entity must be a stand alone company Maximum of 100 shareholders and no shareholder can be a non-resident alien |
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What is a franchise?
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A franchise is an arrangement in which the owner of the trademark, trade name or copyright allows another to offer its products for sale or use in a geographic area
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What is a distributorship
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A manufacturing concern that licenses a dealer to sell its product such as an automobile dealership
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What is a chain cycle business operation
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When the franchisee operates the business under the name of the franchisor and must follow standardized methods of operation
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The _______________________________ was created as a result of the Great Depression to restore confidence in the stock market
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The Securities and Exchange Commission was created as a result of the Great Depression to restore confidence in the stock market
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Explain the Securities Act of 1933
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Authorizes the SEC to regulate the trading of listed securities, investigate securities fraud, regulate securities dealers, supervise mutual funds, and recommend administrative sanctions for violations of the various securities laws
Governs the initial sales of securities by a business and mandates that all information concerning the issuance of securities must be made available to the public Security - Stocks and bonds issued by a corporation A registration statement must be filed with the SEC if a company wishes to go public The SEC’s job is to make sure the public has enough information to determine whether or not one wishes to buy a security |
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Explain the Sarbanes-Oxley Act
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Enacted by Congress after the collapse of the Enron Company and the revelation of massive accounting fraud and misleading corporate financial reports
Seeks to enhance corporate responsibility, enhance financial disclosures, and combat corporate and accounting fraud Only applied to publicly traded companies |
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Explain The Securities Exchange Act of 1934
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Regulates the subsequent sale of securities and requires the registration of security exchanges, brokers, and dealers of the markets in which securities are traded
Aggressive pursuit of insider trading Pursues Tipping |
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What is tipping?
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When someone is “tipped” with information not made public regarding whether or not a stock should be bought or sold
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What is the Private Securities Litigation Reform Act of 1995
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Requires corporations to release financial forecasts and variables that could change those forecasts
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The United Nations was created in ____ to replace the League of Nations
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1945
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What is the General Assembly of the UN?
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“Parliament of nations” - discuss world issues
Authority to adopt resolutions Primarily responsible for analyzing legal matters of interest and in formulating international conventions |
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What is the Security Council of the UN?
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The real power of the UN
15 countries whose purpose is to maintain international security and peace Five permanent members The United States Russia China France England Two remaining members are selected by the general assembly and serve two year terms Impose economic sanctions, order an arms embargo, or even dispatch troops to an area |
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What is the International Court of Justice?
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Located in Hague, Netherlands
Role is to apply international law to legal disputes in attempt to settle controversies Fifteen judges are selected by the Assembly and Securities Council Only 137 Cases from 1945-2008 have been heard The US is not a member |
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What are the political risks of international commerce?
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Governments may place limitations on trade with nations involving national security threats
Expropriation is the taking of property by a foreign government without adequate compensation |
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What are the economic risks of international commerce?
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Fluctuation of exchange rates
Price differences |
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What are the transaction risks of international commerce?
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Non-Payment and Non-Delivery
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What is Pre-Contractual Liability?
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A duty to negotiate in good faith and a duty to proceed with negotiations in accordance with prior representations and promises
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What is Comity?
|
Comity is the concept that represents the international equivalent of full faith and credit
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Upon receipt of goods by a carrier, the carrier generates an irrevocable ____ __ _____ that operates as a receipt for the goods
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Upon receipt of goods by a carrier, the carrier generates an irrevocable bill of lading that operates as a receipt for the goods
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A ________ is the physical transfer of goods by the owner into the hands of another party for safekeeping or some other purpose
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Bailment
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The _______ _____ has exclusive jurisdiction over all controversies of a civil nature in which a state is a party and exclusive jurisdiction over proceedings against ambassadors or other public ministers consistent with the law of nation
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The Supreme Court has exclusive jurisdiction over all controversies of a civil nature in which a state is a party and exclusive jurisdiction over proceedings against ambassadors or other public ministers consistent with the law of nation
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The _______ _____also has appellate jurisdiction or the ability to hear cases on appeal from the federal circuit courts and courts of the states
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The Supreme Court also has appellate jurisdiction or the ability to hear cases on appeal from the federal circuit courts and courts of the states
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Which case legitimized the Supreme Court in the eyes of the public
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Marbury v. Madison legitimized the Supreme Court in the eyes of the public
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The federal courts are frequently described as the __________ of the United States Constitution because their decisions protect the rights and liberties guaranteed by this historic document
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guardians
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The court of original jurisdiction or trial court in the federal system is the District Court, and appeals are entertained by which court?
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The court of original jurisdiction or trial court in the federal system is the District Court, and appeals are entertained by the Circuit Court of Appeals
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The Supreme Court of the US will review a lower court’s decision if it presents what?
|
a compelling national question that needs to be answered
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There are __ district courts in the US
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94
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What type of cases can the federal court hear?
|
The type of cases the federal court may hear are limited to questions involving federal law, the US Constitution, and disputes between citizens of different states where the amount in controversy exceeds $75,000
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How many circuit courts are there in the US? What are their purposes?
|
13 circuit courts in the US
11 of them hear cases on appeal from the district courts 12th circuit is devoted to hearing cases from the District of Columbia 13th hears appeals involving tort claims against the US Government, patent cases, and appeals from the US Court of Federal Claims and the Court of International Trade |
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Parties may appeal to the circuit courts as a matter of _____
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right
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When the court of appeals decides a case, that decision is _______ over all of the district courts within that circuit
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binding
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What do the Supreme Court cases usually involve?
|
Cases usually involve important issues about the Constitution or federal law
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|
What is an activist?
|
One who views his or her role as bringing about social change
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Explain being Judicial Restraint-Oriented?
|
A justice that is judicial restraint-oriented tends to believe that his or her role is merely to make sure that a rule is constitutional
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|
What is the supreme court term length
|
Term begins on the first Monday in October and ends when the list of scheduled cases is reached during the summer
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|
What is a writ of certiorari?
|
Latin for “we wish to be informed”
|
|
What are the factors of whether or not the Supreme Court will grant an appeal:
|
A Conflict in the US Court of Appeal decisions on the same issue
A state’s highest court has issued a ruling on an issue that conflicts with a decision of another state’s highest court or with a United States Court of Appeal A State Court or a US Court of Appeal has decided an important question of Federal law that has not been, but should be settled by the Supreme Court |
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A petition for a Writ of Certiorari is ______ granted when the alleged error merely consists of factual mistakes or the misapplication of a properly states rule of law
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rarely
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The court of original jurisdiction in PA is known as the ______ __ ______ _____
|
The court of original jurisdiction in PA is known as the Court of Common Pleas
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What is the Trial Court of PA responsible for?
|
Civil and Criminal Cases
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What is the Family court of PA responsible for?
|
Juvenile Cases and matters involving the family
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What is the Orphan Court of PA responsible for?
|
Deals with matters involving estates
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|
A ____ in a criminal trial generally consists of 12 people whose decisions must be unanimous
|
jury
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|
What is a jurisdiction?
|
Jurisdiction refers to the power of a court to determine the merits of a dispute and to grant an aggrieved party relief
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|
Courts must have jurisdiction over the _______ ______ and the _______ _________ to properly take action
|
Courts must have jurisdiction over the subject matter and the parties involved to properly take action
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What is Subject Matter Jurisdiction
|
The Particular court where the dispute is heard must have the power to hear the kind of case that is in controversy
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|
Explain Jurisdiction over the person
|
Requires the court to have power to exercise its authority over the defendant
The Supreme Court has rules that a state court may exercise personal jurisdiction over a non-resident defendant as long as there are minimum contacts between the defendant and the state in which the suit has been filed |
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What is a venue
|
A venue is the place where a case should be heard
|
|
What is the concept of forum non-conveniens
|
When it is inconvenient for both parties to have the lawsuit at a certain place
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|
What is standing?
|
The plaintiff must actually have a direct and substantial interest in the outcome of the case he or she intends to bring
|
|
What is Full Faith and Credit?
|
Full Faith and Credit is a constitutional mandate that requires each state to uphold the laws and decrees of every other state
|
|
What is Arbitration?
|
When two parties agree to have a third party made a decision
This decision is binding and upheld by the court |
|
What is Mediation?
|
Used primarily in disputes between labor and management but also is suited for disputes between neighbors and family members
Advisory in nature A mediator makes recommendations to the parties in order to aid them in solving their differences |
|
What is Private Judging
|
Used when both sides are time constrained and can afford to hire a private judge, usually a retired judge
|
|
What are non-binding or mini trials
|
Parties submit their case to a panel of experts and a neutral advisor who aids both sides
The panel and advisor suggest the likely outcome if the case were to go to court |
|
What are Neighborhood justice centers?
|
Receive cases from local police or magistrates
Two sides represent themselves before a panel of local residents |