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231 Cards in this Set
- Front
- Back
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Continuing Nuisance
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If the damages from the nuisance will or does vary over time
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Judicial System
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System of courts that interprets and applies the law. Provides a mechanism for the resolution of disputes
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Trail court:
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Original jurisdiction. Can hear any type of civil or criminal case. A court where trails take place. Initially hears cases.
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Court of Appeals
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A court that is empowered to hear an appeal of a trial court or other lower tribunal, intended to correct errors
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Supreme Court
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Highest judicial body w/n that jurisdictions court system. Rulings are not subject to further review.
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Federal District Court
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general trial courts of the US courts. Courts of Law, equity, and admirality.
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Circuit court of appeals
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set legal precedent in regions of millions of people, serves as final arbiter on most federal cases
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US Supreme Court
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highest judicial body. consists of one chief justice and eight associate judges. primarily an appelate court, but has a small original jurisdiction
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Legislature
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deliberative assembly w/n the power to pass, amend, and repeal laws. Laws created by legislature are statutory laws
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State Legislature
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legislative branch of a political subdivision in a federal system
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Municipalities
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administrative division composed of a defined territory, usually a town, city, or village. general- purpose district
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rules and ordinances
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set of procedural regulations adopted by courts which are mandatory for courts and lawyers to follow w/n that jurisdiction. The statutes in a city or town
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congress
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formal meeting of representatives of different groups
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senate
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a deliberative assembly of legislature of parliament who make parliamentary decisions
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house of representatives
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many legislature bodies in many countries. sometimes it is the lower house if there is also a senate
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executive branch
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sole authority and responsibility for daily administration of state bureaucracy. carries out the laws of the land
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president
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leader of an organization
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governor
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governing official usually the executive of a non-sovereign level of government.
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executive agencies
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managerial and budgetary seperate in order to carry out executive functions
"machinery of government" |
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police
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people empowered to enforce the law, protect property and reduce civil disorder
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Municipalities
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administrative division composed of a defined territory, usually a town, city, or village. general- purpose district
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rules and ordinances
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set of procedural regulations adopted by courts which are mandatory for courts and lawyers to follow w/n that jurisdiction. The statutes in a city or town
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congress
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formal meeting of representatives of different groups
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senate
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a deliberative assembly of legislature of parliament who make parliamentary decisions
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house of representatives
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many legislature bodies in many countries. sometimes it is the lower house if there is also a senate
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executive branch
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sole authority and responsibility for daily administration of state bureaucracy. carries out the laws of the land
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president
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leader of an organization
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governor
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governing official usually the executive of a non-sovereign level of government.
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executive agencies
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managerial and budgetary seperate in order to carry out executive functions
"machinery of government" |
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police
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people empowered to enforce the law, protect property and reduce civil disorder
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Municipalities
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administrative division composed of a defined territory, usually a town, city, or village. general- purpose district
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rules and ordinances
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set of procedural regulations adopted by courts which are mandatory for courts and lawyers to follow w/n that jurisdiction. The statutes in a city or town
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congress
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formal meeting of representatives of different groups
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senate
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a deliberative assembly of legislature of parliament who make parliamentary decisions
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house of representatives
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many legislature bodies in many countries. sometimes it is the lower house if there is also a senate
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executive branch
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sole authority and responsibility for daily administration of state bureaucracy. carries out the laws of the land
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president
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leader of an organization
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governor
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governing official usually the executive of a non-sovereign level of government.
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executive agencies
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managerial and budgetary seperate in order to carry out executive functions
"machinery of government" |
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police
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people empowered to enforce the law, protect property and reduce civil disorder
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Municipalities
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administrative division composed of a defined territory, usually a town, city, or village. general- purpose district
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rules and ordinances
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set of procedural regulations adopted by courts which are mandatory for courts and lawyers to follow w/n that jurisdiction. The statutes in a city or town
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congress
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formal meeting of representatives of different groups
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senate
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a deliberative assembly of legislature of parliament who make parliamentary decisions
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house of representatives
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many legislature bodies in many countries. sometimes it is the lower house if there is also a senate
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executive branch
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sole authority and responsibility for daily administration of state bureaucracy. carries out the laws of the land
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president
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leader of an organization
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governor
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governing official usually the executive of a non-sovereign level of government.
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executive agencies
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managerial and budgetary seperate in order to carry out executive functions
"machinery of government" |
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police
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people empowered to enforce the law, protect property and reduce civil disorder
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FBI
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agency of US department of justice, serves as both a federal criminal investigative body and an internal intelligece agency
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Discovery
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entire effort of a party to obtain info. before trial thru demands for production of a multitude of info
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Theory of Broad Rights
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Parties will go to trial w/ as much knowledge as possible, and that neither party has an secrets, besides ones that will accuse a party
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Initial Interview
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first meeting with lawyer to set out facts and determine if they can help a party
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Lawyers Letter
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Letter stating legal claim, makes demands for restitution owing to recipients legal wrongdoing
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Jurisdiction
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authority granted to formally constituted legal body to administer justice w/n a defined area of responsibility
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Service of Process
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procedure to give legal notice to defendant of a courts exercise of jurisdiction over that person
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Summons
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legal document issued by a court or a government administrative agency
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complaint
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formal legal document that sets out the facts and legal reasons that the plantiff believes are sufficient to support a claim against the defendant.
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cause of action
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Claim, set of facts that is sufficient to justify the right to sue. what is written on the complaint
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answer
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first pleading by defenedant, served upon plaitiff w/n a certain time after civil complaint
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pleadings
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formal writen statement to establish the issue to be decided by the court
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interrogatories
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formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify facts that will be presented in the trial
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request for documents
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request that another party provide any documents that it has that pertain to the suject matter of the lawsuit
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depositions
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out of court testimony of a witness that is reduced to writing for court use
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pre-trial conference
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meeting of parties to a case prior to trial. held before a judge or magistrate who posses fewer judicial powers than a judge
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opening statements
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first occasion a judge has to hear from a lawyer in the trial, serves as a roadmap for the facts
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direct examination
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interrogation by the attorny who called the witness
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cross examination
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questioning by the opposing attorny
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expert testimony
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statements during trail or deposition by a specialist qualified as an expert on the subject relevant
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closing arguments
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final argument made by attorny on behalf of their client after all evidence has been produced on both sides
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burden of proof
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in a civil case - plaintiff must show by a preponderance of evidence to win a case, and in a criminal case they must show beyond reasonable doubt.
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motions
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request to the judge to make a decision about the case
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verdict
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formal finding of a fact made by jury on matters or questions submitted by a judge
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JNOV
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a call for the judge to over-rule the decision made by the jury - to reverse the verdict
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closing arguments
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final argument made by attorny on behalf of their client after all evidence has been produced on both sides
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Appeal
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a process for requesting a formal change to an official decision
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burden of proof
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in a civil case - plaintiff must show by a preponderance of evidence to win a case, and in a criminal case they must show beyond reasonable doubt.
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appeal as of right
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an appeal guaranteed by statute or some underlying constitutional or legal principal
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motions
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request to the judge to make a decision about the case
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Writ of Certiorari
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order by a higher court directing a lower court to send the record in a case for review
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verdict
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formal finding of a fact made by jury on matters or questions submitted by a judge
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standard of review
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is the amount of weight given by one court in reviewing the decision of a lower court
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JNOV
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a call for the judge to over-rule the decision made by the jury - to reverse the verdict
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Public Nuisance
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injury, loss, or damage is suffered by a local community as a whole
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Appeal
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a process for requesting a formal change to an official decision
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appeal as of right
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an appeal guaranteed by statute or some underlying constitutional or legal principal
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Writ of Certiorari
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order by a higher court directing a lower court to send the record in a case for review
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standard of review
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is the amount of weight given by one court in reviewing the decision of a lower court
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Public Nuisance
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injury, loss, or damage is suffered by a local community as a whole
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servitude of land
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limited real right to the land of someone which confers with the owner of a dominant piece of land
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dissenting opinion
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opinion written by one or more judges expressing disagreement w/ the majority opinion of the court.
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prima facie element
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evidence which is sufficient to prove a particular proposition or fact
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negligence
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conduct that is not acceptable because it falls short of the reasonable person standard
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elements of negligence
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Duty , Breach, Causation, Harm
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foreseeability
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holding an actor only responsible for the foreseeable actions
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compensatory damages
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are paid to plaintiff to compensate for loss, injury, or harm suffered
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punitive damages
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above and beyond compensatory damages, to reform defendant from participating in similar acts.
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ways to defend a tort case
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1. deny and refute 2. prove an affirmative defense 3. estoppel, laches res judicata, 4. permit defense
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Estoppel
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a legal doctrine that prevents a party from denying or asserting something that has already been established as a truth
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Laches
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delaying trial
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res judicata
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a case where there has already been a final judgement and is no longer subject to appeal
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Equitable relief
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discretion of court to grant directed at a particular person or business. Ex: Injunction
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civil action
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a lawsuit where one party sues another - includes everything sans criminal law
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toxic tort
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plaintiff claims exposure to a chemical caused injury or disease
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summary judgement
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determination made by court w/o a full trial
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strict liability
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abnormally dangerous activity. makes a person legally responsible for damages w/o proving negligence
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emotional distress
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mental distress or anxiety suffered as a response to an experience. must still prove physical damages.
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joint and several liability
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when two or more persons are reliable. one can be held responsible for the entire groups actions
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SLAPPS
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Lawsuit intended to silence critics by burdening them w/ a lawsuit until they drop their opposition. Ex: Slander
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statute of limitations
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maximum amount of time after an even that legal proceedings may be initiated
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indivisibility
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legal document stating that a copyright is a single, indivisible right that its owner can only assign as a whole.
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contribution
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a payment btwn defendents w/ joint and several liability to divide liability
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indemnity
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sum paid by A to B, by way of compensation for a particular loss suffered by B. An insurer for the damages
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causation
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the casual relationship btwn conduct and result
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expert testimony
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a witness who is believed to have a expertise in a particular subject beyond the average person.
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Daubert standard
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rule of evidence regaurding expert testimoney. Expert must prove the facts for the specific situation. Must prove fact by a testible and acceptable method. must prove method in court, reliability of information.
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Frye Standard
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expert opinion is generally accepted and reliable in scientific community
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Litigation
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any lawsuit or other resort to the courts to determine a legal question or matter
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preponderance standard
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civil cases more likely to be true than not
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beyond reasonable doubt
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criminal cases, must be proven that a reasonable person would not have any doubt of the outcome
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risk
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chance of danger or loss. hazard and outrage
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voluntariness
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choice being made by a person's free will.
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control
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ability to purposly direct, or suppress change
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fairness
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judges leeway in applying equity law in their jurisdiction to cases
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dread
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extreme fear
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outrage
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public opposition to a policy which does not reflect knowledge of the situation. element that causes people to react differently even if the hazard is the same
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outrage factors
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1. voluntary vs. forced 2. natural vs. industrial 3. fair or not 4. familiar or exotic 5. chronic vs. catastrophic
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risk communication
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identification, assessment, and prioritization of risk .
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environmental justice
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refers to an equitable spatial distribution of burdens and benefits to minorities
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risk management
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identification, assessment, and priorization of risks and try to minimize it
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arbitrary and capricious
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a court finding will only be changed if there is no reasonable basis for the decision
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administrative law
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governs the activities of an administrative agency of government
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agency power
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responsible for oversight and administration of specific functions delgated to them
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rulemaking
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process agencies use to create regulations. legislatures first set broad policy mandates by passing statutes and then agencies create more detailed regulations
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adjudication
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judge reviews evidence to come to a decision which determines rights and obligations btwn parties involved
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administrative procedure act
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governs the way an administrative agencies of the US may propose and establish regulations and review agency decisions
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Organic Act
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any act that has an agency mange certain federal lands
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judicial review
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legislative and executive actions are subject to reveiw, and possible invalidation by judiciary
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standing
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the right to file a petition under the circumstances
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ripeness
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refers to the readiness of a case for litigation, goal is to prevent premature adjudication
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exhaustion of remedies
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plaintiff must seek relief elsewhere and exhaust all other possibilities before going to to court.
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arbitrary
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not supported by fair or substantial cause or reason
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post hoc reasoning
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where on e event is asserted to be a the cause of a latter event simply by having happened earlier. "but for"
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review-ability
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a litigant must consider which issues and orders that arose in litigation are reviewable by the court of appeals
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plain meaning rule
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statutes are to be interpreted using ordinary meaning of language unless the statute specifically states otherwise - the law is to be read word for word and should not divert from its true meaning
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Iron Triangle
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policy making relationship between congressional committees, federal agencies, and industry.
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private attorney general
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private party who brings a lawsuit considered to be public interest
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federalism
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political concept in which a group of members govern a land. sovereignty is constitutionally divided between central governing authorities
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common law
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developed by judges through decisions of courts and smaller tribunals. conceptual foundation for statues and regulations
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statutory law
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written law set down by legislature
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precedents
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a legal case establishing a principal or rule that a court may utilize when deciding subsequent cases
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torts
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a wrong that involves a breach of civil duty owed to someone else
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injunctive relief
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a party is required to do or refrain from doing certain things
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equity
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legal principals that supplement strict rules of law. allow courts to use their discretion and apply justice in accordance w/ natural law
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vicarious liability
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the responsibility of the superior for the acts of the subordinate
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nuisance
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that which causes offense, annoyance, trouble, or injury
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private nuisance
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interference w/ the right of specific people to their right to quiet enjoyment
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permanent nuisance
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caused by a single act, resulting in permanent injury
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U.S Legal System
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Constitution, seperation of powers, executive, legislative, judicial, administrative agencies
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sources of law
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common law, statutory law, international law, precedent, judicial interpretation
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US Judicial System
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State and Federal systems, trial court, court of appeals, supreme court
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Lifecycle of a case
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Initial interview, jurisdiction, cause of action, pleadings (summons, complaint, answer), discovery, pre-trial conference, opening statement, witness, evidence, closing statement, burden of proof, motions, jury instructions, liability, damages, verdict, JNOV, Appeal as of right, Writ of Certiorari, Appellate Briefs, record on appeal, standard of review
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Briefing a case
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Facts, Issue(s), Holding, Reasoning
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Six stages of environmental law
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1. common law and conservation era
2. federal assistance for state problems 3. rise of modern environmental movement 4. erecting the federal regulatory infrastructure 5. extending and refining regulatory strategies 6. regulatory recoil and return to private law |
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CAA
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basic framework for federal regulations of air pollution
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CWA
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bans not permitted discharge into surface waters,
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FIFRA
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Federal insecticide, fungicide, and rodenticide Act
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Marine protection, research, and sanctuaries act
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stopped ocean dumping
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Endangered Species Act
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1973. prohibits federal action that jeopordizes the habitat of protected species
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Toxic Substance Control act
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1976. EPA regulates manufacture/ distribution/ and use of chemical substances
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RCRA
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manage hazardouse waste
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CERCLA
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1980's. strict liability for release of hazard substances.
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tort law
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defines what a legal injury and what is not
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LCD model of torts
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liability, causation, damages
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theory of liability
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prove damage and causation
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intentional tort
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prima facie case - proven that tortfeeser showed intent and want to damage
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Right to Farm laws
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deny nuisance suits against farmers who use accepted farming practices
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Trespass
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a physical invasion of property causing damages
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statute of limitations
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maximum amount of time after an even that legal proceedings may be initiated
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negligence
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one who fails to avoid avoidable injuries to other ought to bear the cost of those injuries
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"reasonable person" standard of conduct
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each person has the duty to behave as a reasonable person would under the same circumstance.
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defense attempts in negligence case
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1. custom 2. industry practices 3. state of art (?)
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deterrence
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punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong that is done
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strict liability
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abnormally dangerous activity - do not need to prove negligance
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primary jurisdiction
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a court will not determine the outcome of an issue that is within the jurisdiction of an administrative agency, before that agency has made a decision
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cause-in fact
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plaintiff must prove that the defendants actions caused injury
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proximate cause
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an act or ommission that is legally sufficient to result in liability
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substantial factor
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if defendents actions were the primary factor in causing injury
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risk identification
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epidemiological studies, animal bioassays, chemical structure analysis
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risk exposure
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frequency and intensity
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good science
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preliminary assessment of reasoning and methodology . scientifically valid, applies to facts in issues, hypothesis testing, peer-reviewed, general acceptance
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polyfurcation
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dividing a complex trial into smaller seperate parts - seperating issues
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motion to dismiss
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where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief
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rule 11 motion
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every pleading, motion, or legal paper must be signed by an attorney, and must be with the best of that persons knowledge.
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affidavits
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formal sworn statement of facts, signed by author, and witnessed for authenticity
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Paoli 4-part test
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1. significant exposure because of negligence
2. increase risk as result of exposure 3. medical monitoring necessary because of exposure 4. early detection and treatment if possible |
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epidemiology
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study of patterns of health and illness and associated factors at the population level
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relative risk
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risk of an even, relative to exposure, ratio of the probability of the even occuring in exposed group vs. non-exposed group
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attibutable risk
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difference in rate of condition between an exposed population and an unexposed population
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statute of repose
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cuts off certain legal rights if they are not acted on by a certain deadline. much stricter deadline than "limitations" and starts when project is completed rather than when plaintiff discovers
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discovery includes
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interrogatories, motions or requests for production of documents, request for admissions, and depositions
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interrogatories
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formal set of written questions produced by one party and required to be answered by the other in order to clarify facts and what facts will be present in case.
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admission
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a prior statement by an opposing party which can be accepted into evidence over hearsay objection
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deposition
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out - of - court testimony by a witness that is reduced to writing for latter use in court for discovery purposes
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delegation
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assignment of authority and responsibility to another person to carry out specific tasks
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agencies exercise their power by:
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monitoring, rulemaking, and adjudication
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delegation doctrine
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that one branch of government may delegate powers to only its agency
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non-delegation doctrine
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one branch of government cannot authorize another entity to exercise the power which it is constitutionally authorized to exercise itself
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ultra vires principal
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when an agency goes outside or goes beyond the powers given to them
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adjudication
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applying legal standards to facts in a particular case
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basic purposes of APA
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1. require agencies to keep the public informed of procedures and rules
2. provide public participation in rulemaking process 3. establish uniform standards for rulemaking and adjudication 4. define the scope of judicial review |
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formal rulemaking
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full, trial-like process with discovery, motions, evidence, and records
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informal rulemaking
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less than formal, notice and oppertunity for public comment
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statutory defendent
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agency sued for its programmatic actions
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arbitrary standard
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a decision made at the discretion of the judge, and it is not fixed by the law
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abuse of discretion
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failure to take proper considerations of the facts and law when settling a trial
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standard of reviews:
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degrees of deference, arbitrary and capricous, abuse of discretion, substantial evidence
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degree of deference
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review ranges from minimal arbitrary test to judicial take over of question (de novo). Could a reasonable agency official have reached the decision based on records
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feasible and prudent
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refers to the viability of an alternative method whether it can be done and how reasonable the alternative is
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arbitrary and capricious
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- agency incorrect legal standard
- evidence not shown in court - no evidence to support decision - evidence there but not accurate - failure to consider relevant factors |
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Citizen enforcement
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individually or collectively may use legal process to advocate and force compaince with the law
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prudential limitations
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1. a party may only assert his or her own rights and cannot raise claims of a third party who is not before the court
2. plaintiff cannot sue if the injury is widely shared in differing ways with many people 3. zone of interest test |
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environmental law
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comes from thousands of years of history from society saying what is right and what is wrong
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3 types of court
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trial, appeal, supreme
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miranda rights
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you have the right to remain silent, whatever you say can and will be used against you in a court of law
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summons
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notice to appear in court
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complaint
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document stating all wrong-doings
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double jeopardy
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criminally you can not be tried twice for the same crime
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culpability
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measure of how responsible someone is legally and morally
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3 types of liability
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intentional, negligence, strict liability
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