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130 Cards in this Set
- Front
- Back
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Four philosophies behind American Law
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Natural Law
Legal Positivism Sociological Jurisprudence Legal Realism |
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Classifications of Law
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Civil & Criminal
Crim --> Substantive or Procedural Civ --> Substantive or Proc. Civ --> Sub --> Tort or Contract Civ --> Sub --> Tort --> law or equity Civ -->Sub--> contract--> law or equity |
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Three types of crimes under criminal law
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Treason
Felony - max possible punishment is fine or imprisonment for more than one year Misdemeanor - max possible punishment is a fine or imprisonment for less than one year |
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Types of torts
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Intentional - assault, battery, trespass
Unintentional - negligence Strict liability -- (defective product sold to public) |
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Standard of evidence for civil action
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Proponderance of the evidence - more than likely true
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Standard of proof for criminal action
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Beyond a reasonable doubt (very nearly certain)
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What are the institutional sources of law?
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1. Constitutions
2. Statutes ..> Administrative agencies & uniform state law and model acts 3. Common law |
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What is the enabling act?
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Statutes that authorizes administrative agencies to exist and which list the specific areas to be administered by it
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What is Legal Realism?
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Philosophy that determines what reasonable people would do in a certain situation
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What is sociological jurisprudence?
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evaluates a legal rule by looking at its social effect
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What is Natural Law?
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Emphasize person's right to make individual choices.
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What is legal positivism?
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The law is the law; distinguishes law from morality
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What is the Erie doctrine?
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There is no federal common law.
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Stare decisis
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process used by judges to analyze past cases to determine if any exist that have similar facts and legal issues
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In what way are administrative agencies law making bodies?
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It has a quasi-judicial function but no one can be incarcerated by an admin agency; the rules & reg as well as the decisions it makes are subject for review by the courts
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What three things does the constitution do?
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1. limits the powers of the states
2. enumerates powers granted to the federal government by the states 3. guarantees certain fundamental rights to americans |
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What are some of the limitations of state powers?
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no treaties with foreign nations; cannot coin money; build post office; tax imports or exports; or do anything else that the fed goverment preempts
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What powers do the states have?
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Has police power within its borders - general health, safety, and welfare of its citizens; intrastate commerce; anything else not given to the fed government
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What does Article I of the constitution say?
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1.Establishes congress & gives it the right to borrow money,
2. regulate interstate commerce & commerce with foreign countries 3.issue currency 4. establish post offices; 5. control patents and copyrights; 6. declare war; 7. create inferior federal courts; 8. serve as legislator for DC 9. make laws to carry out powers of congress 10. control bankruptcy laws |
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Article II?
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Vests power to the president with ability to include a cabinet
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Article III?
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Establishes the supreme court and other inferior courts congress may establish
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What is judicial review? Which case established this notion?
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It is a situation in which the court could have exercised original, concurrent jurisdiction. Established in Marbury v. Madison.
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Bill of Rights - brief description
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1. free speech and assembly
2. arms 3. no soldiers quartered in private homes 4. no unreasonable searches or seizures 5. no double jeopardy or self-incrimination/due process 6. right to speedy trial and counsel 7. right to a jury trial in civil cases over 20 8. no excessive bails or fines; no cruel or unusual punishment 9. cont. powers do not diminish rights of people 10. states retain power not given to fed gov |
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Fourteenth Amendment/Equal protection clause
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prohibits states from making or enforcing law which diminish privileges and immunities of any citizen of US; states must provide DUE PROCESS
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Right to privacy
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supreme court established this though it does not exist in the constitution
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What do you need to know about due process? What are the two types?
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Two types: substantive due process & procedural due process
Due process means fundamental fairness in law & it must involve STATE action |
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Three traits that prevent substantive due process
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overbreadth - too broad; too big a group
arbitrary/unreasonable/capricious vagueness - when a person of normal intelligence cannot understand the statute's language |
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Procedural due process
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1. notice - informed of the charges against her
2. opportunity to be heard |
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Three important concepts in Article I
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appoint judges
appoint ambassadors make treaties commander in chief |
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Some presidential powers
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prohibits bill of attainder - laws against a specific group of people
ex post facto laws - made after the fact forbids suspension of the writ of habeas corpus - order to deliver the body of one held in custody |
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What two types of jurisdiction must a court have to hear a case?
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Subject matter
Personal |
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What are different types of subject matter jurisdiction?
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limited vs. general
original vs. appellate exclusive vs. concurrent |
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What's important to know about subject matter jurisdiction?
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It can never be waived. It can be raised by anyone at any point in litigation, including appeal
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How does a court acquire personal jurisdiction?
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plaintiff - when they file the complaint
defendant: 1) the consent of the defendant; 2) defendant's domicile in the state 3) long-arm statutes for out-of-state defendants |
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What is a long-arm statute?
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allows the court to reach outside the state boundary lines to require him to defend himself in the forum state (defendant had minimum contact with the forum state)
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What kind of case does the Court of Appeals of the Federal Circuit have exclusive appellate jurisdiction over?
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copyright/trademark, decisions of US claims court, us court of vet appeal; us court of international trade
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What is venue?
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Location within a particular jurisdiction where trial should take place
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What comprises the federal court system?
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supreme court
circuit courts - 13 90 federal district courts some specialty courts - tax court; court of international claims |
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What is in rem jurisdiction?
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a court always has jurisdiction of property located within its geographic boundaries; a suit can still happen even if the court lacks personal jurisdiction over defendant
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What is quasi in rem jurisdiction?
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when the subject matter of the suit does not relate to the property in the court's jurisdiction but the defendant has property in the court's jurisdiction
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Name some federal specialty courts.
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US Court of International Trade
US Claims Court US Tax Court US Court of Military Appeals US court of veterans appeals |
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The supreme court has original jurisdiction over which kinds of cases?
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1. disputes bw two or more states (exclusive)
2. disputes bw US & states 3. actions by a state against a citizen of another state 4. actions in which ambassadors or foreign countries are parties |
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In which kind of cases do US district courts have original jurisdiction?
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1. fed question cases
2. diversity of of citizenship caes 3. bankruptcy 4. copyright/patent 5. civil rights 6. IRS 7. suits against US or its agencies 8. admiralty or maritime 9. ambassadors (concurrent with supreme court) |
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What about US court of appeals & jurisdiction?
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13 circuits; 11 circuits by region plus court of appeals for DC & court of appeals for federal circuit
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What does diversity of citizenship mean?
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civil action b/w citizens of different states exceeding 50K
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What are federal question cases?
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case is an action arising under the constitution, law, or treaties of the US
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What's the difference between primary law and secondary law?
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primary is mandatory; secondary is persuasive
primary law is constitutions, admin rules, statutes, case law of the state secondary - same things of different states |
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What are the criteria for a past case to be considered precedent?
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1. found in a case decided by the present court or by a higher court
2. prior case was published 3. contained in the majority opinion of the court |
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What is in rem jurisdiction?
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a court always has jurisdiction of property located within its geographic boundaries; a suit can still happen even if the court lacks personal jurisdiction over defendant
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What is quasi in rem jurisdiction?
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when the subject matter of the suit does not relate to the property in the court's jurisdiction but the defendant has property in the court's jurisdiction
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Name some federal specialty courts.
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US Court of International Trade
US Claims Court US Tax Court US Court of Military Appeals US court of veterans appeals |
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The supreme court has original jurisdiction over which kinds of cases?
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1. disputes bw two or more states (exclusive)
2. disputes bw US & states 3. actions by a state against a citizen of another state 4. actions in which ambassadors or foreign countries are parties |
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In which kind of cases do US district courts have original jurisdiction?
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1. fed question cases
2. diversity of of citizenship caes 3. bankruptcy 4. copyright/patent 5. civil rights 6. IRS 7. suits against US or its agencies 8. admiralty or maritime 9. ambassadors (concurrent with supreme court) |
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What about US court of appeals & jurisdiction?
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13 circuits; 11 circuits by region plus court of appeals for DC & court of appeals for federal circuit
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What does diversity of citizenship mean?
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civil action b/w citizens of different states exceeding 50K
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What are federal question cases?
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case is an action arising under the constitution, law, or treaties of the US
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What's the difference between primary law and secondary law?
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primary is mandatory; secondary is persuasive
primary law is constitutions, admin rules, statutes, case law of the state secondary - same things of different states |
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What are the criteria for a past case to be considered precedent?
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1. found in a case decided by the present court or by a higher court
2. prior case was published 3. contained in the majority opinion of the court |
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2 main types of cases in which the US District Court has original jurisdiction
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federal questions - an action arising under the Constitution laws, or treaties of the US
Diversity of Citizenship - a civil action between the citizens of different states where the matter exceeds 50,000, |
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Original jurisdiction?
Admiralty, maritime, and prize cases |
US District Court (exclusive)
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Original jurisdiction?
Suits brought by the US, its agencies, or its officers |
US District court (exclusive)
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Original jurisdiction?
Suits in bankruptcy |
US District Court
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Original jurisdiction?
Suits against the US or its officers |
US District Court
US Claims Court up to 10K |
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Original jurisdiction?
Suits to compel officers of hte US to perform their duty |
US District Court
plaintiff seeks a writ of mandamus |
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Original jurisdiction?
Removal of suits against federal officers in state court |
US District Court
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Suits in copyright, patent, trademark, and plan variety protection
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US District Court (exclusive)
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Suits involving improper collection of IRS and customs duties
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US District Court
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Suits affecting ambassadors and other public ministers and consuls
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US District Court (exclusive as a practical matter but technically concurrent with Supreme Court)
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Original jurisdiction?
Suits involving civil rights |
US District Court
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Original jurisdiction?
Disputes between two or more states |
Supreme Court
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Original jurisdiction?
Disputes between US and a state |
Supreme Court
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Original jurisdiction?
Actions by a state against citizens of another state or against aliens |
Supreme Court
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Original jurisdiction?
Disputes between the US and a state |
Supreme Court
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the law of the state where the suit is filed
approach in contract cases |
lex fori
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the law of the state where the contract was to have been performed
approach in contract cases |
lex loci solutionis
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the law of the state where the last act occurred which was required to create a binding contract
approach in contract cases |
lex loci contractus
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2 additional approaches in contract cases
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the law of the state agreed to by the parties as part of their contract; or
the law of the state having the most significant contracts with the events and the parties (significant relationship rule) |
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What applies to contract cases when parties fail to specify a choice of law
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Uniform Commercial Code (UCC); not applicable when the subject of the contract is employment, services, construction, or real estate
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What does Article IV of the US Constitution say?
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Full Faith and Credit Clause - requires each sate to enforce the final judgments of al other states, without regard to the differences in substantive law and public policy from state to state
party who seeks enforcement must seek action in the forum state |
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What is a conflict of law?
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1) when the facts of a case occur in a state other than the forum state
2) when the facts of a case occur in more than one state Lead to choice of law questions |
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What is the traditional approach for choice of law tort cases?
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apply the law of the state where the wrong was committed (lex loci delicti commissi)
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What is the current trend for choice of law cases?
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apply significant relationship rule - applies the substantive law of the place having the most significant contacts with the occurrence or event
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What is comity?
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It relates to the recognition of the public acts of one nation by another nation; international courtesy; usually followed unless there's something repugnant about it
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What is a case of first impressions?
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if there are no applicable statutes and no precedents in the case law of the jurisdiction; common law - look to other jurisdictions; federal or civil system - court's hands are tied
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Which article specifies federal specialty courts?
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Article I
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List 5 federal specialty courts
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1) US Court of International Trade
2) US Claims Court 3) United States Tax Court 4) US Court of Military Appeals 5) US Court of Veterans Appeals |
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Which are the two Article I courts and annexed to the US District Courts?
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1) Federal Magistrate Court
2) Bankruptcy Court |
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What is the function of the Federal Magistrate Court?
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Assists the US District Court in areas such as hearing minor cases, conducting preliminary hearings in federal criminal cases, and conducting pretrial conferences in federal civil cases
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What are some limitations in judicial decision making?
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Case or controversy
Bar Immunity |
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No advisory opinions; no collusive suits - what does this mean?
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Article III specifies that no advisory opinions will be issued by federal courts; an advisory opinion is one based on hypothetical situations
Collusive suits - one based on a friendly agreement to litigate an issue to see how it comes out; or trying to influence the court in a certain direction b/c one party doesn't really fight |
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What does it mean for a party to have standing?
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A party's rights must be personally and immediately affected by the issues in the suit.
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What does it mean for an issue to be ripe for judicial decision?
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It has to be an actual full-blown dispute; can't be on something that might happen in the future
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What does it mean for a case to be moot?
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If it's irrelevant or academic at any stage of the proceeding including the appeal; case cannot be moot!
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When can litigation be barred from being litigated for which main two reasons?
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1) statue of limitations
2) doctrine of res judicata |
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What is a statute of limitations?
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Set by the legislature that requires a civil action in a certain type of case must be filed within a fixed time after the cause of action first arises; most can be tolled bc of infancy, insanity, imprisonment, or court order
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What is res judicata?
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Prevents the same facts from being litigated again between the same parties; it applies to a final judgment; a motion for summary judgment; and a dismissal with prejudice to future action
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What criteria must be present for res judicata to apply?
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1) the parties must be the same or must be in privity with the original parties
2) the factual basis must be the same of the first suit |
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What is sovereign immunity?
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applies to any governmental unit; they are immune from tort actions; the government may waive its sovereign immunity in whole or part
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What is charitable immunity?
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many nonprofits have this; but now they have been restricted by some states bc they can afford insurance protection
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What is parental immunity?
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unemancipated kids cannot sue their parents; waived in instances of child abuse; most states have this on a limited level
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What are two kinds of judicial remedies?
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Those decisions initially are based upon whether the case is 1) at law or 2) in equity
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how are parties identified in law actions?
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plaintiff and defendant
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how are parties identified in law actions
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petitioner and respondent
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How else are actions in law and actions in equity different?
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law actions entitled to a jury trial; no juries are allowed in equity actions
final order in law action -> judgment final order in equity action --> decree |
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what are two kinds of remedies at law?
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replevin - requires return of specific personal property in the defendant's possession
ejectment-which requires return of specific real property in the defendant's possession. |
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When legal and equitable issues exist in a single case, what happens?
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The jury determines the facts concerning the legal issues and the judge decides everything concerning the equity issues. If it's necessary to try the different issues separately, it's called a bifurcated trial.
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What is a kind of remedy at law?
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Damages, which always result in the payment of money. The purpose of damages always is to make the plaintiff whole.
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How are damages calculated?
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They must have been foreseeable at the time a contract was made or at the time the tort occurs.
Plaintiff has a duty to mitigate damages (minimize losses) |
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What are different types of damages?
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Compensatory Damages
Punitive Damages Nominal Damages Liquidated Damage |
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Compensatory Damages
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Focus on the plaintiff's losses; general damages are damages anyone in the plaintiff's situation would incur; special damages are specific are unique to a particular plaintiff
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Quantum meruit
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awarded on quasi-contract theory
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Punitive damages
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Sometimes called exemplary damages, to punish damages is to punish the defendant for outrageous conduct; not allowed in some states
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Nominal damages
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purpose is to vindicate a right which has been violated when no monetary loss has occurred
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Liquidated Damages
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Damages agreed to by the parties at the time the contract is made and represent the parties' reasonable estimate of losses in the event of breach.
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Equitable remedies
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Fashioned by courts to achieve fairness when legal remedies are inadequate for that purpose; plaintiff's objective is to demonstrate that he has no adequate remedy at law (money cannot compensate)
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Types of equitable remedies
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Restitution
Injunction Declaratory Judgment Rescission Reformation Specific Performance |
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Restitution
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focuses on the defendant's gains rather than on the plaintiff's losses
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Tracing & constructive trust
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Has to do with restitution and calculating losses
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Equitable lien
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has to do with restitution
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Subrogation
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has to do with restitution; applies when a person (other than the intermeddler) pays the debt of another
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Injunction
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a personal order to a respondent to do (or refrain from doing) a specific act. An injunction may be mandatory or preventative
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What is a type of injunction
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temporary restraining order
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ex parte
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only one party is heard
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declaratory judgment
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a suit which asks the court to declare the rights of parties in an impending dispute; the dispute must be imminent; also, one of the parties must be in danger of facing personal prosecution or great financial burden; can be obtained in nearly every type of case
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Rescission
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equitable remedy available only in contract cases; when granted, the underlying contract is cancelled and made void (as if it never existed)
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Reformation
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reformation is an equitable remedy available only in contract cases; it is sought to correct errors in the document evidencing a contract or in a deed of conveyance when the document (or the deed) does not reflect the parties' agreement accurately
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What are different types of ADR?
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Court-annexed ADR
Arbitration Mediation |
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Court Annexed ADR
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parties are required to submit to a type of pretrial arbitration or pretrial conference before their cases are docketed for trial; the presiding officer assists in laying all the issues on the table, with the goals of disposing of non-issues and of bringing the parties to a compromise position.
Can't solve it, then they have to proceed to trial |
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Arbitration
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An impartial arbitrator listens to evidence and renders a decision; decision is binding
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Mediation
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voluntary method of dispute resolution; the primary distinction between arbitration and mediation is that mediation is not binding on the parties; less structured than an arbitration proceeding; sometimes makes recommendations bu never makes decisions
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