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130 Cards in this Set

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Four philosophies behind American Law
Natural Law
Legal Positivism
Sociological Jurisprudence
Legal Realism
Classifications of Law
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
Three types of crimes under criminal law
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
Types of torts
Intentional - assault, battery, trespass

Unintentional - negligence

Strict liability -- (defective product sold to public)
Standard of evidence for civil action
Proponderance of the evidence - more than likely true
Standard of proof for criminal action
Beyond a reasonable doubt (very nearly certain)
What are the institutional sources of law?
1. Constitutions
2. Statutes ..> Administrative agencies & uniform state law and model acts
3. Common law
What is the enabling act?
Statutes that authorizes administrative agencies to exist and which list the specific areas to be administered by it
What is Legal Realism?
Philosophy that determines what reasonable people would do in a certain situation
What is sociological jurisprudence?
evaluates a legal rule by looking at its social effect
What is Natural Law?
Emphasize person's right to make individual choices.
What is legal positivism?
The law is the law; distinguishes law from morality
What is the Erie doctrine?
There is no federal common law.
Stare decisis
process used by judges to analyze past cases to determine if any exist that have similar facts and legal issues
In what way are administrative agencies law making bodies?
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
What three things does the constitution do?
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
What are some of the limitations of state powers?
no treaties with foreign nations; cannot coin money; build post office; tax imports or exports; or do anything else that the fed goverment preempts
What powers do the states have?
Has police power within its borders - general health, safety, and welfare of its citizens; intrastate commerce; anything else not given to the fed government
What does Article I of the constitution say?
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
Article II?
Vests power to the president with ability to include a cabinet
Article III?
Establishes the supreme court and other inferior courts congress may establish
What is judicial review? Which case established this notion?
It is a situation in which the court could have exercised original, concurrent jurisdiction. Established in Marbury v. Madison.
Bill of Rights - brief description
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
Fourteenth Amendment/Equal protection clause
prohibits states from making or enforcing law which diminish privileges and immunities of any citizen of US; states must provide DUE PROCESS
Right to privacy
supreme court established this though it does not exist in the constitution
What do you need to know about due process? What are the two types?
Two types: substantive due process & procedural due process

Due process means fundamental fairness in law & it must involve STATE action
Three traits that prevent substantive due process
overbreadth - too broad; too big a group

arbitrary/unreasonable/capricious

vagueness - when a person of normal intelligence cannot understand the statute's language
Procedural due process
1. notice - informed of the charges against her
2. opportunity to be heard
Three important concepts in Article I
appoint judges
appoint ambassadors
make treaties
commander in chief
Some presidential powers
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
What two types of jurisdiction must a court have to hear a case?
Subject matter
Personal
What are different types of subject matter jurisdiction?
limited vs. general
original vs. appellate
exclusive vs. concurrent
What's important to know about subject matter jurisdiction?
It can never be waived. It can be raised by anyone at any point in litigation, including appeal
How does a court acquire personal jurisdiction?
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
What is a long-arm statute?
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)
What kind of case does the Court of Appeals of the Federal Circuit have exclusive appellate jurisdiction over?
copyright/trademark, decisions of US claims court, us court of vet appeal; us court of international trade
What is venue?
Location within a particular jurisdiction where trial should take place
What comprises the federal court system?
supreme court
circuit courts - 13
90 federal district courts
some specialty courts - tax court; court of international claims
What is in rem jurisdiction?
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
What is quasi in rem jurisdiction?
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
Name some federal specialty courts.
US Court of International Trade

US Claims Court

US Tax Court

US Court of Military Appeals

US court of veterans appeals
The supreme court has original jurisdiction over which kinds of cases?
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
In which kind of cases do US district courts have original jurisdiction?
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)
What about US court of appeals & jurisdiction?
13 circuits; 11 circuits by region plus court of appeals for DC & court of appeals for federal circuit
What does diversity of citizenship mean?
civil action b/w citizens of different states exceeding 50K
What are federal question cases?
case is an action arising under the constitution, law, or treaties of the US
What's the difference between primary law and secondary law?
primary is mandatory; secondary is persuasive

primary law is constitutions, admin rules, statutes, case law of the state

secondary - same things of different states
What are the criteria for a past case to be considered precedent?
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
What is in rem jurisdiction?
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
What is quasi in rem jurisdiction?
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
Name some federal specialty courts.
US Court of International Trade

US Claims Court

US Tax Court

US Court of Military Appeals

US court of veterans appeals
The supreme court has original jurisdiction over which kinds of cases?
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
In which kind of cases do US district courts have original jurisdiction?
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)
What about US court of appeals & jurisdiction?
13 circuits; 11 circuits by region plus court of appeals for DC & court of appeals for federal circuit
What does diversity of citizenship mean?
civil action b/w citizens of different states exceeding 50K
What are federal question cases?
case is an action arising under the constitution, law, or treaties of the US
What's the difference between primary law and secondary law?
primary is mandatory; secondary is persuasive

primary law is constitutions, admin rules, statutes, case law of the state

secondary - same things of different states
What are the criteria for a past case to be considered precedent?
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
2 main types of cases in which the US District Court has original jurisdiction
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,
Original jurisdiction?

Admiralty, maritime, and prize cases
US District Court (exclusive)
Original jurisdiction?

Suits brought by the US, its agencies, or its officers
US District court (exclusive)
Original jurisdiction?

Suits in bankruptcy
US District Court
Original jurisdiction?

Suits against the US or its officers
US District Court
US Claims Court up to 10K
Original jurisdiction?

Suits to compel officers of hte US to perform their duty
US District Court

plaintiff seeks a writ of mandamus
Original jurisdiction?

Removal of suits against federal officers in state court
US District Court
Suits in copyright, patent, trademark, and plan variety protection
US District Court (exclusive)
Suits involving improper collection of IRS and customs duties
US District Court
Suits affecting ambassadors and other public ministers and consuls
US District Court (exclusive as a practical matter but technically concurrent with Supreme Court)
Original jurisdiction?

Suits involving civil rights
US District Court
Original jurisdiction?

Disputes between two or more states
Supreme Court
Original jurisdiction?

Disputes between US and a state
Supreme Court
Original jurisdiction?

Actions by a state against citizens of another state or against aliens
Supreme Court
Original jurisdiction?

Disputes between the US and a state
Supreme Court
the law of the state where the suit is filed

approach in contract cases
lex fori
the law of the state where the contract was to have been performed

approach in contract cases
lex loci solutionis
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
2 additional approaches in contract cases
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)
What applies to contract cases when parties fail to specify a choice of law
Uniform Commercial Code (UCC); not applicable when the subject of the contract is employment, services, construction, or real estate
What does Article IV of the US Constitution say?
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
What is a conflict of law?
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
What is the traditional approach for choice of law tort cases?
apply the law of the state where the wrong was committed (lex loci delicti commissi)
What is the current trend for choice of law cases?
apply significant relationship rule - applies the substantive law of the place having the most significant contacts with the occurrence or event
What is comity?
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
What is a case of first impressions?
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
Which article specifies federal specialty courts?
Article I
List 5 federal specialty courts
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
Which are the two Article I courts and annexed to the US District Courts?
1) Federal Magistrate Court

2) Bankruptcy Court
What is the function of the Federal Magistrate Court?
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
What are some limitations in judicial decision making?
Case or controversy
Bar
Immunity
No advisory opinions; no collusive suits - what does this mean?
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
What does it mean for a party to have standing?
A party's rights must be personally and immediately affected by the issues in the suit.
What does it mean for an issue to be ripe for judicial decision?
It has to be an actual full-blown dispute; can't be on something that might happen in the future
What does it mean for a case to be moot?
If it's irrelevant or academic at any stage of the proceeding including the appeal; case cannot be moot!
When can litigation be barred from being litigated for which main two reasons?
1) statue of limitations

2) doctrine of res judicata
What is a statute of limitations?
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
What is res judicata?
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
What criteria must be present for res judicata to apply?
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
What is sovereign immunity?
applies to any governmental unit; they are immune from tort actions; the government may waive its sovereign immunity in whole or part
What is charitable immunity?
many nonprofits have this; but now they have been restricted by some states bc they can afford insurance protection
What is parental immunity?
unemancipated kids cannot sue their parents; waived in instances of child abuse; most states have this on a limited level
What are two kinds of judicial remedies?
Those decisions initially are based upon whether the case is 1) at law or 2) in equity
how are parties identified in law actions?
plaintiff and defendant
how are parties identified in law actions
petitioner and respondent
How else are actions in law and actions in equity different?
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
what are two kinds of remedies at law?
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.
When legal and equitable issues exist in a single case, what happens?
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.
What is a kind of remedy at law?
Damages, which always result in the payment of money. The purpose of damages always is to make the plaintiff whole.
How are damages calculated?
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)
What are different types of damages?
Compensatory Damages
Punitive Damages
Nominal Damages
Liquidated Damage
Compensatory Damages
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
Quantum meruit
awarded on quasi-contract theory
Punitive damages
Sometimes called exemplary damages, to punish damages is to punish the defendant for outrageous conduct; not allowed in some states
Nominal damages
purpose is to vindicate a right which has been violated when no monetary loss has occurred
Liquidated Damages
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.
Equitable remedies
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)
Types of equitable remedies
Restitution
Injunction
Declaratory Judgment
Rescission
Reformation
Specific Performance
Restitution
focuses on the defendant's gains rather than on the plaintiff's losses
Tracing & constructive trust
Has to do with restitution and calculating losses
Equitable lien
has to do with restitution
Subrogation
has to do with restitution; applies when a person (other than the intermeddler) pays the debt of another
Injunction
a personal order to a respondent to do (or refrain from doing) a specific act. An injunction may be mandatory or preventative
What is a type of injunction
temporary restraining order
ex parte
only one party is heard
declaratory judgment
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
Rescission
equitable remedy available only in contract cases; when granted, the underlying contract is cancelled and made void (as if it never existed)
Reformation
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
What are different types of ADR?
Court-annexed ADR
Arbitration
Mediation
Court Annexed ADR
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
Arbitration
An impartial arbitrator listens to evidence and renders a decision; decision is binding
Mediation
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