Intro To Law

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Gregg v. Georgia
Court ruled that

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capital punishment serves as retribution because its not random and has been used in previous cases

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when a case is litigated before a judge rather than a jury

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it is called a bench trial

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law of the location/conflict of laws

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lex loci

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on behalf of (for a minor)

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ex facie

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service of process

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a) means of obtaining jurisdiction over a person
b)a formal notification that a law suit has been filed

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already been adjudicated

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res judicata

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principle by which the courts f one jurisdicition may acceded or give effect to the laws or decisions of another

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Commity
e.g. full faith and credit

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statements in a legal opinion that refer to facts or situations not presently before the court are known as

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Dicta

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Primary sources

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Common Law
Statutory law
Administrative law
Constitution
U.S. States Report

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protection from self-incrimination

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miranda rights

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can be given lethal overdose, assissted suicide

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death w/ dignity act

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secondary sources

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are persuasive but not binding
contracts
treaties
black laws dictionary
corpus juris secundum

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statues/legislation

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statutory law

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verdicts from previous cases

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common law

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rules

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administrative law

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laws made by the legislatures are referred to as

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statutory laws

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"let the decision stand"
principle in common law of adherring to a precedent when deciding a legal case

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stare decisis

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in civil actions, the federal courts have subject matter jurisdiction over

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a) claims based on the constitution federal laws or treaties [when federal question is involved]
b) suits between citizens of different states that involve claims exceeding $75,000 [diversity jurisdiction]

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The Erie Doctrine requires

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federal courts to apply the substantive law of the forum state

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depositions and written interrogatories are

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tools of discovery

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examination of prospective jurors

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voir dire

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if smith assaulted jones in marquette, MI the criminal case would most likely be entitled ?

Civil case?

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State of MI v. Smith

Jones V. Smith
plaintiff v. defendant

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the cite 495 US 14 indicates that

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case would be found on the 14th pg of volume 495

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how many U.S. district courts are there?

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94

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The rule of 4

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# of supreme court justices that must agree to hear a case

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Court in Cruzan v. Missouri held

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that a state may require clear and convincing evidence of an individuals desire to not use life-supports before a surrogate can make this decision

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Civil wrongs are referred to as

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torts

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Hatch acts

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prohibit federal employees from certain political activities

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Status offenses

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sex offenders, juveniles/statues may cause you to be prohibited

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Cy pres

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look to original intent of grant

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The facts of a case will be determined by

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the trial court

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a special appearance is made when

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an individual wants to challenge personal jurisdiction they

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in rem

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property

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pro se

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of yourself

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non conveniens

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inconvenient forum

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the due process clause can be found in the

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5th & 14th amendments

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the most common burden of proof in a civil trial is

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a preponderance of the evidence (is more likely than not)

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clear and convincing evidence

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civil standard (i.e) determination on an unfit parent

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beyond a reasonable doubt

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criminal case standard

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Individuals have a substantive due process right to assisted suicide

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no historical precendence

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Individuals have a protected liberty interest in being assisted in suicide

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no historical precedence

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true or false: limitations on assisted suicide violate protections against cruel and unusual punishment

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False

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The trail courts in the michigan system are called

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dictrict courts & circuit courts

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In rem jurisdiction refers to jurisdiction over

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the property

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In dorsey v. gregg the court held

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that alternative service had been wrongfully allowed, as the supporting affidavit was insufficient

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When a lawsuit is sent back to the same court from which it came, it is said to have been

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remanded

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a state's inherent right to enact laws to protect the health, welfare, safety and morals of the public is called

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the police power

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Which Federal Judicial Circuit is Michigan in?

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6th

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Failing to answer a summons and complaint will most likely result in

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the awarding of a default judgment

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Stare Decisis applies to

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majority decisions
reported decisions
decisions within the same jurisdiction

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T/F-The exclusionary rule limits the number of jurors that one can dismiss without cause.

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False

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T/F-Contingency Fees are also referred to as quantum meruit.

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False

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Quantum meruit

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as much as he or she deserves

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Exclusionary rule

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excludes improperyl gained evidence

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T/F Misprision of felony is another term for the crime of fals arrest.

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False

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Misprision of felony

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idea that you must turn people in if you've witnessed them in criminal activity

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T/F-The courts favor the granting of summary judgment

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False-courts feel that it deprives party of their day in court

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T/F-An order to make oneself available as a witness is called a subpoena

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True

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T/F-A motion for additur must always be joined with a request for a judgment notwithstanding the verdict.

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False

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T/F-Proper venue if another term for jurisdiction.

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False

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Proper venue

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location of court

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T/F-In MI, social workers enjoy the protection of privileged communications with their clients

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False-in MI social workers do not enjoy such rights

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T/F-A writ of certiorari places a lien on your real property

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False

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a writ of certiorari

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request for the supreme court to hear your case

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lien

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the legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation.

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T/F-a client has an absolute right to fire their attorney

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true

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Megan's laws refer to

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laws that require the registration and publication of convicted sexual offenders

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T/F-A motion for an interlocutory appeal is made at the end of most bench trials

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False

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When is an interlocutory appeal made?

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made during the trial

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T/F-Subject matter jurisdiction can be waived.

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false

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T/F-Federal Courts are precluded from issuing advisory opinions.

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True-you need to have standing real controversy

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T/F-Unless specifically indicated, or if special circumstances warrant otherwise, precedent-setting decisions are given retrospective effect.

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True

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states that a ruling given in any state be upheld in any other the other states.

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full faith & credit

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a persons right to be treated in accordance with the constitution during arrest, trial, etc.

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Due process

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when a case is taken after trial court for review to ensure that no errors occurred
-review trial courts procedures + applications of the law

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appellate courts

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three necessary elements of a contract

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1. offer
2. acceptance
3.consideration-something of value is exchanged

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out of court statement by someone other than declarant offered for proof of matter asserted

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Hearsay

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Criminal offenses

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theft
assault
battery

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Civil

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excessive force
Due process

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Limitations in Seeking Relief

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1. you need an actual case or controversy
2. justiciability

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Justiciability

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Standing, rightness, and absence of res judicata

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Immunity

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Preferential protection from lawsuits

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Article III, Section 2

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case or controversy

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to be justiciable, a case must be well suited for

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judicial determination

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A ripeness inquiry focuses on

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whether a case has developed sufficiently to be before a court for adjudication

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focuses on whether the plaintiff who filed the lawsuit is the right person or entitity to be bringing this particular claim before the court.

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standing

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to have standing, a plaintiff must have

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a legally sufficient personal interest in the dispute and must be adversely affected bu the defendants conduct

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With few notable exceptions, one person cannot sue for

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recover for another person who has been legally injured

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the standing requirement ensures that

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the injured person is in control of the decision to sue, prevents undesired and unnecessary suits, and prevents people who have marginal or derivative interest from filing multiple suits

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mootness

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there is no reason to try a case unless there has been some direct adverse effect on some party

-there is no case of controversy

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Habeas Corpus

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questioning reasoning for ones incarceration

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Political questions doctrine

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provides that the judicial branch is not entitled to decide questions that more properly should be decided by the executive and legislative branches of the federal government

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The Act of State Doctrine

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provides that the american courts should not determine the validity of public acts committed by a foreign sovereign within its own territory
-is pragmatic
-prevents our courts from making pronouncements about matters over which they have no power
-it is based on the relationships among the three branches of the federal government

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there is a time period, established by the legislature, withing which an action must be brought upon claims or to be enforced

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Statute of Limitations

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doctrince can be used in some circumstances to deny a plaintiff an equitable remedy

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Equitable Doctrine of Laches

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Claim Preclusion/Res Judicata

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Provides that a final decision by a comptent court on a lawsuits merits concludes the litigation of the parties and constitutes a bar (puts an end to) a new suit

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Law provides immunity from tort liability when

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to do so is though to be in the best interest of the public

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Immunity does not mean that the conduct is not tortuous in character, but only that

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for policy reasons the law denies liability resulting from the tort

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Sovereign Immunity

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a rule of law holding that a nation or state, or its political subdivisions, is exempt from being sued, without its consent, in its own courts or elsewhere.
-often criticized as being erroneously conceived, anachronistic, and unjust.
-occasionally modified by court decisions, and various state and federal statutes
-immunity of government officials

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interspousal immunity

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prevents suits in tort between husbands and wives because according to the courts spouses are considered to be one person

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Parental immunity

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limited types of suits children can bring against their parents

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immunity through contract

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-parties can create their own immunities by agreeing not to sue
-an immunity provision in a contract is construed against the party as a result of unfair negotiations

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factors that the court considers in determining whether to enforce the agreement are

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the subject matter involved, the clause itself, the relation of the parties, and the relative bargaining power of the parties

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before addressing the power of the court to award various types of relief, we should

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establish that courts do not have a monopoly or resovling private disputes

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The court will reward relief once a person has extablished

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a substantive right through judicial procedures

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judicial relief can assume many different forms called

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remedies

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the most common remedy

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is awarding money damages in the form of compensatory damages, and where permissible, punitive damages

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Additional remedies

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include injuctive relief, restitution, declaratory judgment, and reformation

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Injuctive relief

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requiring someone to do or refrain from doing something

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restoring a person to a previous position to prevent unjuct enrichment

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restitution

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Declaratory judgment

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a judicial determination of the parties' rights

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Reformation

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judicially rewriting a written instrument to reflect the real agreement of the parties

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Common law remedies 1) when parties want the courts opinion concerning their legal rights, without seeking damages or injuctive relief, they seek

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declaratory judgment

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Common Law remedies

both the common law remedies of ejectment and replevin seek

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restitution

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an ejectment occurs when

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a trespasser secures full possession of the land and the owner brings an action to regain possession, as well as damages for the unlawful detention of possession.
-usually involves a title dispute between plaintiff and defendant, and the ejectment action settles this dispute

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Relevin

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is an action used to recover possession of personal property wrongfully taken.
-once the action is brought, the goods are seized from the defendant after proper notice has been given

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Compensatory Damages

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awarded to compensate the plaintiff for pecuniary losses that have resulted from the defendants tortuous conduct or breach of contract
-include awards for loss of time or money, bodily pain and suffering, permanent disabilities or disfigurement, injury to reputation, and mental anguish

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damages are usually limited to those

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reasonably forseeable by the defendant as a result of the breach

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in awarding compensatory damages, the courts objective is to

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put the plaintiff in financial position as existed before the commission of the tort or, in a contract case, in the financial position that would have resulted had the promise been fulfilled

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rule of mitigation

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a person who is injured must use whatever means are reasonable to avoid or minimize damages.
-prevents recovery for damages that could have been foreseen and avoided by reasonable effort without undue risk, expense, or humiliation

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When the defendants misconduct causes damages but also operate directly to confer some benefit on the plaintiff, then the plaintiff's damage claim may be diminished by the amount of the benefit conferred

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Benefit Rule

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Compensatory damages may be categorized as

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general or special

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General Damages

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are those that are the natural and necessary result of the wrongful act or omission, and thus can normally be expected to accompany the injury

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Damages that occur so frequently in the tort of battery that they do not have to be specifically pleaded

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Pain and suffering, mental anguish, and the loss of enjoyment of life

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Damages are awarded for injuries that arise from special circumstances of the wrong

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Special damages

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Hedonic Damages

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the loss of enjoyment of life

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Punitive or Exemplary Damages

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damages awarded to punish defendants for their conduct and to deter others from similar conduct
-such an award is appropriate only when a defendant has engaged in aggravated, wanton, reckless, malicious, or oppressive conduct

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Damages awarded when there has been a breach of an agreement or an invasion of a right but there is no evidenceof any special harm

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Nominal damages

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Nominal damages are awarded when

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a judgment for money damages is the only way a common law court can establish the validity of the plaintiffs claim

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Difference between nominal and small compensatory damages

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small compensatory damages are awarded when the actual loss is minor

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Liquidated Damages

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the stipulated sum contained in an agreement in which parties agree in advance about the amount to be paid as compensation for loss in the event of a breach of contract

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Injuction

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is an equitable remedy in the form of a judicial order directing the defendant to act or refrain from acting in a specified way

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Mandatory Injuction

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an order compelling one to do an act

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Prohibitory injuction

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an order prohibiting an act

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Bar & Merger

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a judicial doctrine which provides that claims made by the plaintiff and claims that could have made, but were not, merge into the judgment and are extinguished
-a subsequent suit against the same defendant based on the same claim is barred

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Participation in knowledge or interest. participants who so participate are called

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Privity

Privies

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Restitution

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the restoring of property, or a right, to a person who has been unjustly deprived of it. A writ of restitution is the process by which an apellant may recover something of which he has been deprived under a prior judgment.

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Declaratory judgment

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a determination or decision by a court, which states the right of the parties to a dispute, but does not order or coerce any performance relative to those rights. The procedural and substantive conditions of the usual action must be present. the relief that the court grants is the distinguishing charecteristic

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an action brought requesting that a judge correct a provision contained in a written instrument, so that the instrument expresses the true agreement or intention of the parties

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reformation or "rectification"

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Rescission

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The cancellation of or putting an end to a contract by the parties, or by one of them e.g. for any reason mutually acceptable to the parties, or on the ground of fraud

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Ex Parte Injunction

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An injunction granted without notice to the party being enjoined

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Unconscionable contract

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a contract clause that is too unfair or one-sided

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Equitable Maxims

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short statements of principle used to determine if an equitable remedy should be awarded

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Specific performance

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the actual carrying out of a contract in the particular manner agreed upon. courts of equity will compel and coerce specific performance of a contract in many cases, where damages payable in money, the usual remedy at law, would not adequatly compensate for its nonperformance e.g. in the case of contracts concerning land, or for the sale of a unique chattel

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what is the crowding effect?

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the crowding-out effect is the theory that budget deficits will lead to higher real interest rates, which retard private spending

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What does the crowding-out effect indicates?

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the crowding-out effect indicates that fiscal policy will not be nearly as potent as the simple Keynesian model implies.

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what does the new classical theory indicate?

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the new classical theory indicates that anticipation of higher future taxes (rather than higher interest rates) will reduce private spending when government expenditures are financed by debt

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What are automatic stabilizers?

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Automatic stabilizers are built-in features (unemployment compensation, corporate profit tax, progressive income tax) that tend automatically to promote a budget deficit during a recession and a budget surplus (or smaller deficit) during an inflationary boom.

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what is a major advantage of automatic stabilizers?

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automatic stabilizers have the major advantage of providing needed restraint, or stimuli, without congressional approval--which in turn minimizes the problem of proper timing.

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What should be done in order to shift budget toward a larger deficit (or smaller surplus)

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either an increase in government expenditures or a reduction in taxes should be employed to shift the budget toward a larger deficit (or smaller surplus)

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The use of fiscal policy to stabilize the economy is ?

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difficult and complex

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in the keynesian model, investment is determined by

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factors other than the interest rate