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86 Cards in this Set

  • Front
  • Back
What makes up common law?
the accumulation of precedent, based on case after case
define statutes
a law passed by a legislative body
define writ
a letter from the central government ordering a court to hear a case
What do substantive rules state?
the rights of parties
What do procedural rules state?
how a court should go about settling disputes
What three basic things does the Federal Constitution establish?
It establishes the national government of the US and it's three branches, is ensures that the states retain all power not given to the national government, and it guarantees many basic rights to the American people.
define stare decisis
means "let the decision stand," the principle that precedent is binding on later cases
name the sources of contemporary law
US Constitution, state constitutions, statues, common law, administrative law, treaties, and executive orders
What is the difference between criminal and civil law?
Criminal law concerns the behavior so threatening that society outlaws it altogether. Civil law regulates the rights and duties between parties.
What is the difference between substantive and procedural law?
Substantive law defines the rights of people and procedural law establishes the processes for settling disputes.
What is the difference between public and private law?
Public law is the rights and obligations of governments as they deal with the nation's citizens. Private law regulates the duties between individuals.
define jurisprudence
study of the purposes and philosophies of the law, as opposed to particular provisions of the law
define sovereign
the recognized political power whom citizens obey (in the US, the state and federal governments)
What did St. Thomas Aquinas argue about law?
That an unjust law is no law at all and doesn't need to be obeyed. It's not enough that the sovereign made it.
What are the three schools of jurisprudence and what do they argue?
Legal positivism says that law is what the sovereign says. Natural law says that an unjust law is no law at all. Legal realism says that who enforces the law counts more than what is in writing.
define plaintiff
the person who is suing
define defendant
the person/organization being sued
define ethics
the study of how people ought to act
name the steps in the ethics checklist
what are the facts, what are the critical facts, who are the stakeholders, what are the alternatives, what are the ethical implications of them, is it legal, does it violate the golden rule, is more that one alternative right
Who are stakeholders?
all the people potentially affected by the decision
What is utilitarianism and who created it?
Jeremy Bentham and John Stuart Mill argued that all decisions should be evaluated according to how much happiness they create
What is the Golden rule?
Do unto others as you would have them do unto you
Who was Immanuel Kant and what did he think?
He was an 18th century German philosopher who created categorical imperative.
Define categorical imperative
you should not do something unless you would be willing for everyone else to do it too (not just to you)
Name three reasons the business environment should be concerned about ethics.
Society as a whole benefits from ethical behavior, people feel better when they behave ethically, and unethical behavior can be very costly.
define litagator
lawyer who handles court cases
define litigation
lawsuits, or the process of filing claims in court, and ultimately going to trial
define alternative dispute resolution
ADR; any other formal or informal process used to settle disputes without resorting to a trial
define mediation
a neutral person called a mediator attempts to coax two disputing parties toward a voluntary settlement
define arbitration
the parties agree to bring in a neutral third party and the arbitrator has the power to impose an award
define mandatory arbitration
parties agree in advance to arbitrate any disputes that may arise
What do trial courts do?
determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions
define juristdiction
refers to a court's power to hear a case
What do appellate courts do?
They generally accept the facts given to them by trial courts and review the trial record to see if the court has made any errors; they have 3 or more judges and never have a jury
define appellant
the party filing the appeal
define appelle
the party opposing the appeal (because they won at trial)
define brief
written arguments on the case
define reversed
nullified, appellant's side that the judge of the trail court made serious errors of law
define affirmed
permitted to stand, appellee's side that they trial court acted correctly
What is a federal question case?
a claim based on the US constitution, a federal statue, or a federal treaty
When do federal courts have diversity jurisdiction?
when (1) the plaintiff and defendant are citizens of different states and (2)the amount in dispute exceeds $75,000
define writ of certiorari
a writ filed by a party who wants the Supreme Court to review a lower court ruling on a case
define pleading
document that beings a lawsuit
define complaint
a short, plain statement of the facts that the plaintiff alleges and the legal claims that the plaintiff is making
define answer
filed by the defendant, a brief reply to each of the allegations in the complaint
define default judgment
if the defendant fails to answer in time; the decision that the plaintiff wins without a trial
define counter-claim
a second lawsuit by the defendant against the plaintiff, along with they answer
define reply
an answer to a counter-claim
define class actions
a method of litigating a civil lawsuit in which one or more plaintiffs (or occasionally defendants) seek to represent an entire group or people with similar claims against a common opponent
define motion
a formal request to the court that they court take some step or issue some order
define motion to dismiss
a request that the court terminate a case without permitting it to go further
define discovery
a stage in litigation, after all pleadings have been served, in which each party seeks as much relevant info as possible about the opposing party's case
define motion for a protective order
request that the court limit discovery of the other party by decreasing the number of depositions
define deposition
one party's lawyer to question the other party, or potential witness, under oath
define motion to compel answers to interrogatories
a formal request that the court order the other party to supply more complete answers
define memorandum
a supporting argument that is submitted with a motion
define in camera inspection
the judge review the requested documents alone, with no lawyers present, and decides whether the other side is entitled to view them
define summary judgment
a ruling by the court that no trial is necessary becuase there are no essential facts in dispute
define voir dire
"to speak the truth" the process of selecting a jury. attorneys for the parties and the judge may inquire of prospective jurors whether they are biased or incapable of rendering a fair and impartial verdict.
define challenges for cause
an attorney's request, during voir dire, to excuse a prospective juror becuase of apparent bias
define peremptory challenges
during vior dire, a request by one attorney that a prospective juror be excused for an unstated reason
What is preponderance of the evidence and what role does it play in a civil lawsuit?
It is the plaintiff's burden to convince the jury that its version of the facts is at least slightly more likely than the defendant's version
How much proof must be present in a criminal case?
The prosecution must demonstrate beyond a reasonable doubt that hey defendant is guilty.
define direct examination
when a lawyers asks questions of her own witness
define cross-examine
when a lawyer examines the opposing witness
What are the Rules of Evidence?
Law governing the proof offered during a trail or formal hearing. These rules limit the questions that may be asked of witnesses and the introduction of physical objects.
define directed verdict
a ruling that the plaintiff has entirely failed to prove some aspect of their case
define judgment non obstante verdicto
JNOV "judgment notwithstanding the verdict" a trial judge overturns the verdict of the jury and enters a judgment in favor of the opposing party
define precedent
an earlier case that decided the same legal issue as that presently in dispute, and which therefore will control the outcome of the current case
define affirm
a decision by an appellate court to uphold the judgment of a lower court
define modify
an appellate court order changing a lower court ruling
define reverse
the power of an appellate court to overrule a lower court and grant judgment for the party that had lost in the lower court
define reverse and remand
nullifying the lower court's decision and returning the case to the lower court for a new trail
What are the important forms of discovery?
interrogatories, depositions, production of documents and objects, physical and mental examinations, and requests for admission
define common law
judge-made law, that is, the body of all decisions made by appellate courts over the years
define bill
a proposed statute that has been submitted for consideration to Congress or a state legislature
Why are bills proposed?
new issues and new worries, unpopular judicial rulings, and changes to criminal law
What are the three steps in a court interpreting statues?
Plain meaning rule (applying statues ordinary words), legislative history and intent (court will look at the law's history to determine the intent of the legislature), and then public policy (courts rely on general public policies)
define enabling legislation
a statute authorizing the creation of a new administrative agency and specifying its powers and duties
define promulgate
to issue a new rule
define subpoenas
an order to appear at a particular time and place to provide evidence
define subpoena duces tecum
requires the person to appear and bring specified documents
define adjudicate
to hold a formal hearing in a disputed matter and issue an official decision
define administrative law judge
ALJ in an adjudicate hearing, one who is employed by the agency but is expected to be impartial in his or her hearings
define de novo decision
the power of an appellate court or appellate agency to make a new decision in a matter under appeal, entirely ignoring th findings and conclusions of the lower court or agency official
What are the limitations on the power of federal agencies?
Statutory control in the enabling legislation and the APA, political control by Congress and the president, judicial review and the informational control created by the Freedom of Information Act and the Privacy Act