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140 Cards in this Set
- Front
- Back
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Fundamental Principles
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Popular Sovereignty, Federalism, Enumerated Powers, Seopartion of Power, Supremacy of the Judiciary
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What is popular soveriegnty
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government is created by and subject to will of people
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What is Federalism
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constituion created a federal union with both federal and state goverments that exerxise sovereign power
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What is enumerated Powers
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the federal government, gets its powers for constituition is supreme--the powers not given to the federal are reserved for the state and people
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What is separation of powers
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Legislative, executive, and judicial
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What is supremacy of judiciary
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has ability to annual anything..against the constitution
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What does legislative branch do
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enacts laws, makes appropriations
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What does executive branch do
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applies laws, sends appropriations
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What does Judicial branch do
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interepts the law, resolves disputes
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What is full faith and credit clause
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each state will be recognized for its public acts, records, adn judicial procedings of every other state
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Why doesnt the pharmacy licence apply to full faith and credit
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licence does not infringe upon constitutional right
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What is privileges and immunities clause and associated amendment
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Colorado must treat an Iowa resident the same as a colorado resident for FUNDAMENTAL RIGHTS, (employemnent)
14th amendment, --equal protection clause |
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What is Equal protection clause
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no state shall make or enforce laws that abridge the privileges or immunites nor deny anyone equal protection on laws
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What is commerace Cluase
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congress have the power to regular commerce
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Why does congress regulate commerce?
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assure unrestricted flow of commerce, protect commerce from unreasonable restraints, protect international commerece
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What are 3 categories Congress can regulate under commerca cluase
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1. Channels-mail, telephone
2. Instumentalities-transportation 3. Activities substantial relating or affecting commerace |
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What makes of the Legislative Branch
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Congress
-house of rep -senate |
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What makes up the executive branch
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Presidnet
cabinet |
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What makes up the judical branch
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courts
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Can states reuglar powers within theri borders, and how
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YES, police powers
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What are police powers
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the states authortity to regular activities within their border to promote or protect public welfare, safety or health
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How can congress preempt regulation of interstate commerece by a state
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1. overregulation
2.or by saying "states dont have any right to regulate" -can put in statute---Cigarrette |
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What does 4th admendment requrie for search and seizure?
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needs probable cuases and warrents--by governement only
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Does 4th admendment apply to business and industires
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NO, need to state it by entering premises
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What are statutes
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laws enacted by congress and state legislatures
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What are ordinances
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law enacted by counties and citites
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Where are federal statutes stored
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U.S.C (united states code)
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Where are state statutes stored
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CRS (colorado revised statutes)
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Why was common law created
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create uniformity in the decisions of the courts-brought on by William Conqueror in 1066
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What is precedent
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the principle of following the law applied in eariler cases--that have same or simlar facts
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What is Stare Decisis-
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law based on common law by precednet and Lower courts MUST follow decisions laid down by a higher court
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What are OPINIONS and wher are opinions laid down by higher courts stored
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(state correct law and its applications to facts)
Federal Reporter System, and National Reporter System (States) |
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Hierarcy of Federal Courts
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Supreme Court
US Court of Appeals US Disrict Court |
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Herarcy of State Courts
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State Supreme Court
Intermediate Appelatte Court Trial Courts |
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What is binding precedent
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When a court decides that the legal principles of a previous case--are DIRECTLY APPLICABLE to the facts of this case---they must follwoing the opinons of the higher court
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What is dictum
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statment of legal principles that do not directly apply to the facts of the case (BS)
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Benifits of dictum
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the dictum of the highest may be used a persuavise precedent
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What is overrule?
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when same court established binding precedent, and decide precedent incorrect, and will establish a new precedent
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How can a case be appealed?
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if ones finds that the court applies the rules of law incorrect to the facts
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Who approves an appealed case
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the Higher appellate court
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If an appeal is approved what happens
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The ruling is reveresed, adn remand (send) it for another trial
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What are additional clauses of constition
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Full Faith and Credit, Privileges and Immunites (Equal protection clause)
Supremacy Clause Commerce Clause |
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Examples of overrule
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Plessy (orginally found the separte but equal rail cars was constutional however and
Brown vs Board of Education found it was in violation of constition, so previous precedent was reversed and new one set in place |
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What are 2 court sysmtems in US
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Federal Court System and State
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What is princial difference between federal court system and state court
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jurisdiction or the type of cases each court can deal with
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What does Supreme court only handle
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Orginal jurisdiction (inter-state)
Writ of certiorari (what it selects) |
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What is needed if one wants a case handled by supreme court
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must be appeal from US court of appeals and they writ of certiorari
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If supreme court denies writ of certoriorai what happens
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previous ruling stands..does not mean supreme agrees or disaggres
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What is jurisdiction
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the power of court to hear a case between contesting parties concerning a particular matter
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What are 2 types of Jurisdiction needed to lawfull hear a case
What is optional 3rd |
subject matter (what its about)
adn personal (whos involved) (in personam) property-- (in rem jurisdiction) |
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What does Federal Courts have exculisve jurisdiction over
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1.Federal questions
2. Diversity of citizenship |
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What is required for diversity of citizenship
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suits between citizen of differnt states of countries, adn contovesy more than $75,000
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Subject matter of State courts
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Child custody, Divorce, estates(death-probates, inheritance, adn state criminal laws
and <75,000 |
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What is concurrent jurisdiction
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both federal and state have right to hear, can be removed from state and go to federal if more than 75000
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What is personal matter of federal
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everything in US
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What is personal of state
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only matters in state
resident consent or contracts service of process within in state Long-arm-statute |
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What is long-arm statute
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you are subject to trial in a certain state if you have
transaction of business tortious acts ownership or use of property |
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How can a state get jurisdiction over a nonresident
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by minimun contacts test
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What is minimum contacts test?
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nonresident need certain minimum contacts within tradional notions of fair play and substantial justice
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What are 2 components that compose modern courts
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Courts of law (monetary)
Courts of equity (fair remedy) |
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Where do lawsuits begin
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trial courts
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Types of trial courts
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Gereral Jurisdiction
Limited juridiction |
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What composes limited juridication of state courts
and amnts |
county court <15,000
small claims <7,500 |
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What are 5 steps of law-suit pleadings
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Summons and complaint
Answer Counterclaim Cross-claim3 3rd Part complaint |
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What is a summons and complaint
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Plaintiff accounts facts of case and legal basis, and send summon which defendent which must appear and file an answer
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What is an answer
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the defendent admits of denies the allegation in complaint--pleads any defenses such as statue of limitations
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What happens if an individual decides not to answer
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default judgement
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THe answer should also include what?
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Counterclaim--claim arising out of same facts-a suit within a suit
Cross-Claim 3rd party claim |
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If the coutnerclaim is made what must happen
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plantiff must file a reply
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What is a cross-claim
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an suit if mutiple defendents
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What is a 3rd party claim
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a defendent can bring another person into suit
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What is discovery and object of discovery
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gather all facts of case
object is full disclosure, but with limitations --only revelant info request --and reasonable in # and scope (not burdersome or excessively financial |
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What are discovery methods
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Depositions, Interrogations, Subpoenas, Request for production of documents, and request for admissions
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What are Depositions
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witness aer requied to appear and answer questions under oath
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What are interrogatories
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series of written questions, the must be written and answered
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What is a subpoena
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court order requiring person to give info
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Types of subpoenas
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subpoena ad tertifcatum--show up and answer questions
subpoena duces tecum-bring items with you |
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What are request for production of documents
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written requests to search all files and places to locate such documents
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What is purpose of request for admissions
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party request you to admit certain facts it is resonably condifent it can prove (if dont admit and prove you pay)
encourage parties to narrow issues to be dealt with |
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Who determines law
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ONLY Judge
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Who determines facts
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Jury, jury is told what law is.....
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What is burden of proof
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requires plaintiff to prove all allegation, not admitted by defendent
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What are 3 burdens of proof
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1. Civil case
2. Case in equity 3. Criminal case |
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What type of burden of proof is need in a civil case
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by a preponderance of evidence
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What is a preponderance of evidence
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just to tip scale, a little more evidence in favor of truth
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What type of burden of proof is needed Case in equity
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needs clear and convincing evidence--well founded
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What is burden of proof in criminal case
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beyond a reasonable doubt
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In an appellate court do they review facts of case, what do they do, what are most appeals based on
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NO, usually never, ONLY look at LAW, most based on error of law by judge
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What is hersay evidence
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when testifies about what other person said
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What are statues of limitations
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run from time the "Cause of action arose, and when person needs to file a suit
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What enforces statutes
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administrative agencies
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Congress and state legiatures enact stutues and establisn general standards and policies, what is task of administravie agencies
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Enact RULES and REGULATIONS implementing and administering the LAW
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How are most administraive agencies created
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when congress or state legislature pasess an act (agency's enabling act)
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Congress then decides what type of agency it will be, which inlclude
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Executive agency
Independent agency |
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What are executive agencyies
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head serves pleasure of president or governor
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What are independent agencies
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Polictally balances, head appointed by executive with advice and consent of senate
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Can an independ agency be fired by presdient
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no, only executive
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What are melded powers of agencies
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all 3--Legislative (make procederal rules
executive-enforce rules and regulartions judicial-power to decide cases against them |
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What are controls on agency actions
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APA--administrative procedure act
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What does Administraitve Procedure act do
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set out procedure on how agency can
Makes rules and regulations conducts investigations adjudicating cases (holds hearings on allegled violations |
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What does rulemaking involve
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procedural rules,
interpretive rules substantive rules |
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What are procedural rules
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govern agency's own internal practices
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What are interpretive rules
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gives agency interpretation of the statue
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How are substantive rules created
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1st publish in Federal Register, then public input is made
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What happens after public input is made in substanstive rules
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summary of public comments, then comment period
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What happens after final comment period
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final rules published---they are force and effect of law
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Where are all final agency rules complied
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Code of Federal Regulations
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What is 3 ways agency rulemaking is subject to judical review
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1. delegation of authortiy was too vague or not limited
2.violated constitutional standard 3. act beyond scope of power (granted) |
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Does adminitrative agency have authrotiy upon recieving info of a suspected violation have the ability to conduct, and issue a complain without any warrent
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YES
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What prosequtes violations
(adjuications) and ruling is based on what type of evidence |
administrative law judge-preponderance of evidence
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The ALJ ruling must state the federal, legal and policy bases for decision, and losing party want to appeal they appeal to
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full commission
agency head dept secretary |
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What is doctrine of exhaustion of remedies
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prevents something from going straight to court, until all options are exhausted
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When does doctrine of exhuastion apply
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when in statue
or agecy requires internal appeal |
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What happens when an agency requires an internal appeal when there is an adjudication
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be inopertaive
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What employees perform ministerial duties
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all except highest level
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What are ministerial duties
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cannot make personal judgement or discretion of agency policy
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Can you rely on information given from an employee?
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NO
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What is only information you can rely on
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formal written statement
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What are standards of review for administrive agencies
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Rulings ok if supported by subbstantial evidences,if not then are aribatary, capricious, an abuse of discretion or unsupported
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What is motion for summary judgment?
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if all facts are known and no dispute, person submits affidavits (sworn statement) and wins
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Does the defense need to prove anything in trial
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NO, only rebut evidence
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Questions that may be asked must be based on
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rules of evidence
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What are rules of evidence
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evidence must be material, relevant and reliable
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What is privileged evidence
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communications between person and lawter or doc (cannot be used)
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What is arbitration
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alternative to settling in courts (agreement by parties)
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What composes orginal drafters of constitution?
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33 lawyers and 8 businessmem
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What were 4 interst groups that affected constitution?
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Money, public securties (stocks), maufacturing and trade and shipping
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What were groups not represent in constituion
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farmer, and laboring or debtor class
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What checks and balances Legislative have on executive
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advice and consent, and overrides a veto
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What checks does Lesislative have on judicial
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establishes inferior couts, and jurisdiction, adn adivce and consent on judicial appointments
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What checks and balances does executive have on Legislative
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veto of legislation
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What check does Executive have on judical
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appoints justices/judges
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What checks does Judical have on legisttive
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intprests consititutionality of laws
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What checks does Judical have on executive branch
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interprest of constituionality of ACTS of executive
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When states are exercsing police powers, what questions must be answered
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1. Is this a legitiamte exercise of police powers
2. How important are interests being served 3. Could it be sovled in another way causing less burden on interstate commerace and it regulation reasonable? |
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21 U.S.C 301-stand for
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Federal Statue
Title 21 {Food and Drug] United States Code Section 301 |
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What is C.R.S. 12-22-101
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State Statue
Title 12 Article 22 Section 101 |
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What is Heirarchy of law
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Constitution of US
Treaties Federal Statues State Statutes Common law (intrepterts states) |
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What is distinguish
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judges may point out the different facts of two cases, preveting binding precedent, and wished to reach a different conclusion
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What is injunction
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in a court of equity a defendent ceases or refrain from doing
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