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54 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Constitutional Law |
Federal and state Not designed to resolve every case Can require interpretation |
What levels does it exist at Is it for every case? Is interpretation allowed |
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Citizens united/BCRA |
BCRA states that cit united can't advocate for candidate within 30 days of primary or 60 of general election. 5-4 decision that unconstitutional to suppress political speech based on speakers identity as a corporation. Dissent argues that big dif between human and corporate speakers |
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Statutes |
Federal and state Created by a legislative body Approved or disapproved by executive branch (gov/pres) |
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Model statutes |
Drafted by legal experts, in hopes that they will be used or adopted by state legislatures to provide uniformity in laws between states Ex. Ucc, rupa |
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Common law |
Made by appellate courts Based on fundamentals of previous cases that had similar facts Also know as case law |
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Case precedent |
Once appellate has decided on a particular case, the decision becomes a case precedent Usually only binding within jurisdiction of the court setting the precedent |
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Stare decisis |
V important concept Similar cases with similar facts and issues should have the same judicial outcome |
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Advantages of stare decisis |
Allows some degree of confidence that the law will remain reasonably consistent Requires all lower courts, such as a trial court, to follow the case precedent so that any similar case would be decided according to the precedent |
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Administrative law |
Source of law that regulates the exercise of authority by government agencies Also known as regulations Epa eeoc |
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Administrative law agency powers |
Rulemaking Investigation Adjudication Enforcement |
RIAE |
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Criminal Law vs Civil Law |
Criminal laws are a protection of society, and the violation of them result innpenalties such as fines or jail Civil laws are designed to compensate individuals |
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Substantive law |
Provides individuals with rights and create certain duties |
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Procedural Law |
Provides a structure and set out rules for pursuing substantive rights |
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State courts |
Majority of court cases in the us are filed in state courts Two types: state trial and state appellate |
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Federal courts |
Principal trial courts are the us district courts Federal appellate courts are the us courts of appeals Us supreme court is the ultimate arbiter of federal law |
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Caseload state v federal |
Way more civil cases than criminal Way more state courts cases than federal courts |
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Concurrent vs exclusive |
Sometimes a plaintiff can bring case to either state or federal. This is concurrent Exclusive if only one or the other |
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Class action |
If many people are affected in the same way, they can bring a class action |
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Litigation process |
Pleadings stage Discovery stage Discovery/ requests for production |
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Pleadings stage |
Complaint and summons Answer Counterclaim |
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Discovery stage |
Depositions Interrogatories Requests for production |
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Discovery/requests for production |
Companies should have a well designed document management program(creation and destruction) Dangers of emails and instant messages |
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Motions used during litigation |
To dismiss To compel discovery |
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Judge vs jury |
Judge is the finder of law and jury is a finder of fact |
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Trial process |
Opening statement Direct examination Cross examination Using own witnesses Closing argument Verdict |
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Post trial motions and appeals |
Appellate courts engage in judicial review to decide if there were any errors, and have the power to reverse or modify decisions of trial courts |
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Downsides of litigation, how to avoid |
Cost Time Privacy Expertise Business relationship Include ADR in contract from the start |
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Settlement negotiations |
Cost effective Minimizes publicity Can preserve business relationship Over 95% of cases settle before trial NDA |
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Federal arbitration act |
Two parties use an impartial third party to settle dispute Arbitration preferred over litigation if parties agreed to it |
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Who can sue (3) |
Purchaser Ultimate user Bystander |
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Theories of liability (3) |
Breach of warranty Negligence Strict liability |
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Warranty |
Representation of garuntee made by seller or purchaser |
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Express warranty |
Warranty upon purchase |
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Implied warranty |
Warranty through law, certain requirements for a product to be sold |
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Who can sue for breach of warranty |
Only by purchaser |
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Elements of negligence (3) |
Breach of duty of care Proximate cause Injury |
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Breaches of duty include (3) |
Negligent design of product Negligent manufacture of product Inadequate warnings |
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Strict liability elements (6) |
1. Must be in defective condition when sold 2. Defendant must be normally engaged in the business of selling or distributing the product 3. The product must be unreasonably dangerous because of the defect 4. Plaintiff must incur physical harm to self or property by use or consumption of the product 5. Defective condition must be the proximate cause of the injury or damage 6. Goods can't have been substantially changed from sold to injury |
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Strict liability (4) |
Requires that: 1. Product is defective 2. Defect existed when product is sold 3. Defect makes product unreasonably dangerous 4. Defect is proximate cause of injury |
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Manufacturing defect |
Product departs from it's intended design, even though all possible care was exercised in the preparation and marketing of the product |
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Defective design |
Foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable design |
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Inadequate warning |
Foreseeable risks could've been avoided by reasonable instructions |
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Possible defenses against strict liability(5) |
1. Assumption of risk 2. Product misuse 3. Comparative negligence 4. Commonly known dangers 5. Knowledgeable user |
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Tort |
A wrongful act leading to civil legal liability other than breach of contract |
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Intentional torts |
Must act with intent Doesn't mean evil or harmful motive Actor intended consequences |
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Intentional torts examples (4) |
Assault Battery Fraudulent misrepresentation Trespass to land |
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Negligence |
Conduct which falls under the standard established by law for protection of others against an unreasonable risk of harm Can be acting or failing to act |
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Factors in unreasonableness (4) |
Probability than harm will occur Seriousness of harm Social utility of conduct creating risk Cost of taking precautions to reduce risk |
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Elements of a claim of negligence (3) |
Breach of duty of care (Which is the) Proximate cause (Of) injury of a type protected by law |
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Breach of duty of care |
Must have a legal duty, and a breach of that duty |
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Standard of conduct |
Reasonable person: Did defendant use a reasonable degree of care If not then breach of duty of care |
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Negligence per se |
Statute may establish standard of reasonable person If violates a statute that under certain circumstances, particular acts must be done or not done, and statute is intended to protect class of persons to which plaintiff belongs from type of harm that occurred Exanple: dram shop acts: serving already drunk patron |
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Duty to act |
Only required to act if: Special relationship Defendants conduct has left other person helpless and in danger of further harm Defendant causes harm/increases risk of harm/leaves in worse position |
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Proximate cause Two tests |
Must be primary cause But for test: injury wouldn't have happened but for negligent conduct of defendant Substantial factor test: defendants negligent conduct was substantial factor in causing injury |
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