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140 Cards in this Set

  • Front
  • Back
Fundamental Principles
Popular Sovereignty, Federalism, Enumerated Powers, Seopartion of Power, Supremacy of the Judiciary
What is popular soveriegnty
government is created by and subject to will of people
What is Federalism
constituion created a federal union with both federal and state goverments that exerxise sovereign power
What is enumerated Powers
the federal government, gets its powers for constituition is supreme--the powers not given to the federal are reserved for the state and people
What is separation of powers
Legislative, executive, and judicial
What is supremacy of judiciary
has ability to annual anything..against the constitution
What does legislative branch do
enacts laws, makes appropriations
What does executive branch do
applies laws, sends appropriations
What does Judicial branch do
interepts the law, resolves disputes
What is full faith and credit clause
each state will be recognized for its public acts, records, adn judicial procedings of every other state
Why doesnt the pharmacy licence apply to full faith and credit
licence does not infringe upon constitutional right
What is privileges and immunities clause and associated amendment
Colorado must treat an Iowa resident the same as a colorado resident for FUNDAMENTAL RIGHTS, (employemnent)

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