Legal Studies

Front 1

Difference between Blackstone and Cardoza "What is Law"

Back 1

Blackstone - rule, prescribed by law, commanding what is right, prohibiting wrong.
Cardoza - prediction in which courts will decide questions that are held before them.

Front 2

Positive Law and Common Law

Back 2

Pos - US constitutions, federal statutes, state law, treaties, regulations.
Common - judges interpretations and extensions of existing laws

Front 3

Stare Decisis

Back 3

Obligation of each court within a jurisdiction to follow the applicable rule of law that has been decided by a controlling court in the same jurisdiction.

Front 4

Legal Positivist

Back 4

judge sticks to "letter of the law". law AS IT IS. different from natural law. does not reflect judge, rather political authority.

Front 5

Legal Realist

Back 5

Judge interprets and extends existing common law. law is vague and can change. manipulated easily by lawyers and judges.

Front 6

Critical Legal Studies

Back 6

Judge’s bias and economic interests determine his decision.

Front 7

Economic Determinist

Back 7

Judge’s decision should depend on cost-benefit analyses. asks "what legal rules will lead individuals to allocate resources efficiently?”

Front 8

CASE OF THE SPELUNCEAN EXPLORERS

Back 8

Tatting withdrew. It was affirmed by truepenny and keen. “Whoever shall willfully take the life of another shall be punished by death.”
the defendants were hung.

Front 9

Why punish Crime?

Back 9

Deterrence
Revenge
Rehab

Front 10

CRIME

Back 10

An act committed by a person or a corporation or a duty omitted by a person or a corporation which the state has prohibited or commanded, and for the commission or omission of which the state may punish the actor or omitter.

Basically, state prosecutes and punishes.

Front 11

Elements of a Crime

Back 11

Act - actus reus
Guilty Mind - mens rea
concurrence
causation

Front 12

When does a person commit a "criminal attempt"?

Back 12

when he has 1) intent to commit a specific crime and 2) actually takes a SUBSTANTIAL STEP towards committing it

Front 13

Conspiracy Elements

Back 13

1) agreement to break law (actus reas) 2) overt act to further agreement (actus reas) 3) purpose of acts must be WILLFULLY and SPECIFICALLY to break law (mens rea)

Front 14

Purposely

Back 14

Conscious object is to engage in prohibited conduct or to cause a prohibited result
ex: first degree murder

Front 15

Knowingly

Back 15

Aware that his conduct is prohibited and will necessarily cause prohibited result (scienter).
ex: third degree murder

Front 16

Recklessly

Back 16

Conscious disregard of substantial or unjustifiable risk that prohibited result will follow (subjective).
ex: voluntary manslaughter

Front 17

Negligently

Back 17

Disregard of substantial risk that prohibited result will occur, in circumstances under which risk could have been avoided with reasonable care (objective).
ex: involuntary manslaughter

Front 18

Subjective vs. Objective

Back 18

sub - perception of a fact shaped by individuals perticular thoughts
obj - societys perception of a fact

Front 19

Vicarious Liability

Back 19

When coorporations responsible for criminal acts of employess which they "authorized, requested, commanded or recklessly tolerated.”

Front 20

Defenses, Justification, Excuse to Criminal Liability

Back 20

Def - infancy, insanity, voluntary intoxication, ignorance/mistake of fact
Just - Self-Defense
Excuse - Duress

Front 21

Mcnaughten vs Model Penal Code
Insanity

Back 21

Mcnaughten - could not understand WRONGFULNESS. “Cannot distinguish between right and wrong”
MPC - lacks SUBSTANTIAL capacity to understand wrongfullness and To conform his conduct to the requirements of law.[“Irresistible impulse”]

Front 22

14th amendment

Back 22

same as 5 but to states.
nor shall any State deprive any person of life, liberty, or property, without due process of law;

Front 23

4th amendment

Back 23

protection against unreasonable search and seizure. Warrants only on PROBABLE CAUSE

Front 24

Seizure

Back 24

governmental termination of freedom of movement through means intentionally applied
seizure of a person

Front 25

probable cause

Back 25

officer making the arrest has to have REASONABLE facts to be able to convince a REASONABLE person that the convicted person has committed a crime.

Front 26

search and seizure analysis

Back 26

1. did conduct violate a persons REASONABLE expecation of privacy?
2. was there a warrant issued
3. if not, is it one of the excpetions?

Front 27

reasonable suspicion

Back 27

Arresting officer has reasonable suspicion supported by articulable facts that the suspect has committed a crime or that evidence of a crime will be found in the premises to be searched.

Front 28

exceptions to warrant requirement

Back 28

- "terry stop and frisk" need reasonable suspicion
- consent
- plain view
- arrest

- officer present at time of crime
- emergency

Front 29

exclusionary rule

Back 29

Evidence obtained by the police in violation of a defendant’s constitutional rights may not be used by the prosecution in the defendant’s subsequent trial. as evidence of defendant’s guilt. Moreover, evidence found through the use of illegally obtained evidence is also inadmissible; it is “the fruit of the poisonous tree.

Front 30

amendment 5

Back 30

double jeopardy, due process

Front 31

amendment 6

Back 31

speedy and public trial

Front 32

state court tree

Back 32

trial court -> appelate court -> highest court of appeal (state supreme)

Front 33

federal court tree

Back 33

district court -> court of appeals -> supreme

Front 34

subject matter jurisidtcion

Back 34

Power or authority of the court over the substance of the claim; type of claim.

Front 35

personal jurisdticion

Back 35

Power or authority of the court over the parties who are litigating the claim.

Front 36

when can i file in federal court? (subj matter) .. state court?

Back 36

Diversity, or federal question..
state can hear anything EXCEPT exclusive federal jurisdiction

Front 37

Concurrent vs Exclusive federal jurisdiction

Back 37

exclusive - ONLY federal ex: copyright
concurrent - can bring to BOTH

Front 38

Citizenship for person and corporation (in diversity)

Back 38

person - domicile and "fixed intent to reside"
corporation - where headquarters AND where was incorporated. (can have two)

Front 39

Diversity

Back 39

all plaintiffs and defendants must be citizens of different states. and amount must be over 75,000.
SUBJECT MATTER NOT PERSONAL!!

Front 40

personal jurisdiction is for _______ only. does not matter about _______.

Back 40

defendant, plaintiff

Front 41

how does court get personal jurisdiction over defendant?

Back 41

- consent
- residence in the state
- "long arm jurisdiction"

Front 42

long arm jurisdiction need 'minimum contacts.' what are these?

Back 42

Has the defendant committed a wrongful act in the forum state? Has it entered a contract in the forum state?
- Does the defendant “regularly conduct business” in the forum state?
- Does the defendant own real or immoveable property in the forum state that is at issue in the lawsuit? (In rem jurisdiction).

Front 43

venue

Back 43

the 'where'. which actual court will hear the case, within jurisdiction.

Front 44

binding on questions of federal law

Back 44

- Supreme binds everyone.
- US court of appeals binds all lower FEDERAL (but not State) courts within their Circuit on all issues of federal and state law.
- Bind subsequent federal courts sitting in the same district on issues of FEDERAL and STATE law

Front 45

binding questions on state law

Back 45

- state supreme binds every court (federal and state) on STATE law questions
- state appelate court binds state trial

Front 46

federal common law

Back 46

NOOOO FEDERAL COMMON LAW

Front 47

substantive vs procedural

Back 47

sub - creates rights, obligations, and duties . ex: criminal law
proc - The mode of proceeding by which a legal right is enforced; the judicial process to enforce rights created by substantive law (e.g. jurisdiction, evidence; rules of pleading)

Front 48

World-Wide Volkswagen corp v Woodson

Back 48

did oklahoma court have personal jurisdiction over volkswagen corp?
NO. US SUPREME COURT. because of due process, and because they did not have minimum contacts in oklahoma.

Front 49

Erie railroad co v tompkins

Back 49

can a federal court that is answering a state question in diversity use state common law? NO.
the ruling was overturned and railroad won. there is no federal common law. state law must be applied.

Front 50

when MUST federal court apply state law? (erie)

Back 50

if in 1. federal court,
2. issue of diversity, not federal question (bc then federal law would apply)
3. issue of substantive law, not procedural

Front 51

arbitration.
issues, adv, disadv

Back 51

- can be court ordered or by agreement
issues
- choice of arb, what are the rules, choice of law, who pays?
adv
- finality, lower cost
disadv
- finality, lack of legal experience

Front 52

mediation
issues, adv, disadv

Back 52

issues
- what is it? what is the end game? role of mediator
adv
- informal, low cost, flexible, nuetral
disadv
- no finality, reveals your case

Front 53

tort

Back 53

1. private or civil wrong or injury
2. other than breach of contract
3. for which a court will provide a remedy in the form of action or damages

Front 54

mental states of torts

Back 54

intentional (battery, intentional infliction of emotional distress), negligent, non-intentional

Front 55

duty

Back 55

(A)An obligation, recognized by law

(B) Requiring the actor to conform to a certain standard of conduct

(C) For the protection of others against unreasonable risk of harm.

Front 56

negligence calculus

Back 56

is the burden (B) imposed on the defendant to avoid harm greater than the gravity of the harm x the probability that the harm will occur?

B>GxP = No Negligence.
B<GxP = Negligence.

Front 57

standard of care

Back 57

degree of care necessary varies from case to case depending on a lot.
What would Len have done? Len is always same physical appearance as defendant.

Front 58

negligence per se

Back 58

plaintiff must prove:
- statute was passed to prevent harm to a perticular type of people
- injury was caused by type of harm statute tries to avoid
- plaintiff was a member of the type of people statute tried to protect

ex: grandma getting run over on the street by a car exceeding speed limit

Front 59

res ipsa loquitor

Back 59

- injury of this kind seldom occurs in the absence of negligence
- instrument that cause injury was solely in defandants control
- injury could not have been caused by plaintiff own actions

aka - its obvious

Front 60

causation - actual v legal

Back 60

actual - The actor’s failure to conform to the standard of care must have actually caused the injury.

legal - The actor’s failure to conform to standard of care must be PROXIMATE and be recognized in law as having a close enough Connection with the injury so as to warrant imposition of liability

Front 61

causal chain

Back 61

all the actual causes that actually caused the event. "But for" causes. if one of them wasnt there, then would the event still happen? if yes, then not an actual cause.

Front 62

legal (proximate) cause
how do you determine?

Back 62

of the actual causes, the ones that are legal causes are the ones that the actor of them should be liable to the victim for the harm caused.

Prime determinant- Could actor foresee some harm would reasonably flow from his act?

Front 63

superceeding cause

Back 63

opposite from legal cause.
You are NOT liable because you CANNOT foresee.
no liability

Front 64

compensatory v punitive damages

Back 64

comp - medical, pain and suffering, lost value of life (income)
pun - entirely up to jury.

Front 65

bmw v gore

Back 65

bmw appealed to the supreme court because they had to pay too much to gore.
question: Assuming that Gore's punitive damage award was grossly excessive, does the Fourteenth Amendment's due process clause protect BMW from paying the award?

answer: yes. according to due process, the amount is grossly-excessive. the 500-1 ratio is too much.

Front 66

contributory negligence

Back 66

when both plaintiff and defendant acted negligently, nobody gets compensation. For example, a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly.

very few states still use this.

Front 67

comparitive negligence

Back 67

money is awarded in porportion to the degree of fault. so if 10,000 is up in the air and defendant is 70% at fault, then the plaintiff will get 7,000.

in modified, if plaintiff is more than 50%, he gets nothing.

Front 68

wood v groh

Back 68

comparitive negligence
- percentages at fault are assesed
- total damages are assesed

Front 69

strict products liability

Back 69

where a product causes physical harm to a user or consumer, every entity in the chain of production and sale of the product is strictly liable [i.e. liable whether they were at fault or not] to the end user for the harm,

Front 70

elements needed to cause action of strict products liability

Back 70

- product was sold
- reached a consumer or user
- defective in a way that caused unreasonable danger
- defective in the same way, when it left manufacturer
- product caused injury

Front 71

liability of seller for PHYSICAL harm caused

Back 71

only liable if
- seller is in the business of selling product
- expected to and DOES reach consumer in the condition in which it was sold

Front 72

riley v warren manufacturing

Back 72

warren won because trailer was not unreasonably dangerous and child was not intended user or consumer

Front 73

manufacturing defects that make unreasonably dangerous products

Back 73

- glass in soda bottle
- pebble in soup can
- hammer head falls off

Front 74

design defects that make unreasonably dangerous products

Back 74

- how useful is product?
- how safe?
- can manufactor eliminate risk at low cost?
- can user avoid danger by exercise of care?
- is user aware of danger? (WARNINGS!!)

Front 75

defenses to product liability suit

Back 75

- state of the art - given the state of the art at when it was made
- unavoidbaly unsafe product
- misuse - continuing after being warned of danger
- WARNINGSS

Front 76

regina v dudley

Back 76

conclusion:
the defendants are guilty of murder. the man has no right to declare temptation as an excuse. the boy was innocent and they can not take his life

Front 77

illinois v wardlow

Back 77

supreme court case.
question: Is a person's sudden and unprovoked flight from identifiable police officers, patrolling a high crime area, sufficiently suspicious to justify the officers' stop of that person?

answer:
yes. court voted 5-4. They said that they affirm that there was enough on the totality of the circumstances test (the police was justified in stopping wardlow under Terry. And did not violate the 4th amendment).

Front 78

osterland v hill

Back 78

conclusion:
no negligence because no duty to not give a canoe to someone.

Front 79

lombardo v niemeyer

Back 79

conclusion:
the guy was negligent by handing over the keys. he has a standard duty of care not to. he could FORESEE bad things