Legal Studies Exam 1

Front 1

Law

Back 1

the rules laid down by the state and backed up by enforcement

Front 2

Law as a Means of Social Control

Back 2

How law alters behaviors in a society. (How does the ban on marijuana influence the way society operates?)

Front 3

Law as Justice

Back 3

fair, honest and righteous result of the law

Front 4

The Rule of Law

Back 4

laws that are made apply to everyone in the society equally
"if the rules are there you follow them"

Front 5

Property

Back 5

establishes private exclusive rights in resources (ex. trade secret, computer, house, business)

Front 6

Common law

Back 6

court-made law, based on judicial opinions

Front 7

Precedent

Back 7

when a judicial decision is made in a higher court, it applies to all the courts below it and sets the rule for future similar cases

Front 8

Civil law

Back 8

1) written law based on legislative enactments.
2) any law thats not criminal. requests for damages ($), but NO JAIL TIME (ex. breaches of contract, torts, personal injuries)

Front 9

Public law

Back 9

matters that involve the regulation of society
ex. constitutional law, administrative laws (SEC), criminal law (US VS. ____)

Front 10

Private Law

Back 10

legal problems involving the relationships that exist between individuals
ex. contracts, torts, property law

Front 11

Criminal law

Back 11

a representative of government attempting to prove the wrong committed against society and seeking to punish the wrongdoer with the court system

Front 12

Substantive law

Back 12

the legal relationship of people with other people or between individuals and state. (i.e. what gives you the right to file a lawsuit)

Front 13

Procedural Law

Back 13

the methods and means by which substantive law is made and administered (ex. the amount of time to file a medical malpractice suit, rules about evidence, other deadlines)

Front 14

Constitution

Back 14

Source of Law. Has highest priority over other laws. Written by state and federal governments

Front 15

Legislation or codes enacted by federal, state, and local governments

Back 15

1. Statutes and Acts- laws enacted by federal and state legislatures
2. Ordinances - legislation passed by local government
3. Codes - compilations of legislation at all levels of government

Front 16

statutory construction

Back 16

how a law is interpreted is based on the history of how the law has been used

Front 17

Administrative laws

Back 17

rules, regulations, and decisions of administrative agencies (SEC, EPA, OSHA, etc.)

Front 18

Judicial Decisions or Court Opinions

Back 18

Where the court sets reasons for a decision, and the ecision becomes precedent for future cases involving similar legal issues. Each case has a citation so it can be found in the future

Front 19

Advantages of Judicial Decisions

Back 19

"stare decisis" = "let the decision stand"
1. following precedent can allow for a degree of certainty and predictability
2. expedient

Front 20

disadvantages of judicial decisions

Back 20

1. Volume, Time, and Expense of going through old cases
2. May be no precedent at this point
3. Distinguishing from "dicta" and precedent (dicta=commentary that doesn't have force of law)
4. Courts may reject precedent, creating uncertainty
5. conflict of laws, which state law applies?

Front 21

Criminal Conduct

Back 21

a crime considered a wrong against society. punishments include:
death, imprisonment, fine, community service, disqualification from voting

Front 22

Breach of Contract

Back 22

when one party fails to perform under the terms of a contract
a) compensatory damages awarded to make the party "economically whole" again
b) consequential damages are awarded if the party knew about special circumstances that would cause the other party to suffer additional losses
c) non-breaching party may be able to rescind or cancel contract
d) specific performance- demanding the beaching party to fulfill their duty on the contract
e) liquidated damages

Front 23

Torts

Back 23

wrongs other than contract against a person or property
a) intentional tort- intentionally injure a person or property
b) Negligence = the failure to exercise the degree of care the law requires under the circumstances
c) strict liability=for defective products

damage includes compensatory damages+punitive damages (to deter future violations)

Front 24

conversion

Back 24

a tort involving taking office supplies or taking goods from someone else

Front 25

Violation of Statutes and Regulations

Back 25

vary widely from fines, damages to injured parties, attorneys' fees

Front 26

Judge

Back 26

trial court

Front 27

justice

Back 27

appeals courts and above. can set precedent

Front 28

jurors

Back 28

a "fact finding body" of citizens used to determine the facts amidst conflicting evidence.
they return a verdict in civil or criminal cases, but do not always have to be used. consist of 6 or 12 members

Front 29

lawyers

Back 29

counselor, advocate, and public servant whose first duty is to the administration of justice

Front 30

subject matter jurisdiction

Back 30

courts must have the power to hear certain issues before they're brought to a court. (i.e. can't file for divorce in a criminal court)

Front 31

Types of State courts

Back 31

1) Trial Courts (superior court, circuit court, etc.)

2) Appellate courts- review the action of lower courts, don't rehear facts
3)Supreme Court- highest state court, very few cases heard (file a Writ of Certiorari to be heard)

Front 32

Small Claims Courts

Back 32

hear litigations between consumers and businesses, usually involving $ between 500 and 5000, max of 25k

Front 33

When do federal courts have jurisdiction?

Back 33

1) Questions regarding federal law
2)US is a party in the case
3) Controversies among states
4) Suits between citizens of different states (must be over at least $75K)

Front 34

Where is a national corporation considered a citizen?

Back 34

1) Location of incorporation
and
2) Principle location of business ("total activity test")

Front 35

District Courts

Back 35

Federal trial courts

Front 36

Federal Appellate Courts

Back 36

named by judicial circuit
12 US courts of appeal

Front 37

US Supreme Court

Back 37

need a write of cetiorari to be granted a hearing (<100 cases a year)
Cases usually involve:
a) divided lower courts
b) decisions of substantial federal importance

Front 38

Judicial Review

Back 38

statutes are subject to being reviewed by the Supreme Court and ruled void if unconstitutional

Front 39

2 views about judicial review

Back 39

judicial restraint- the power of the courts should be used minimally as they are extremely powerful

judicial activism- judicial review should be used whenever the needs of society justify it (major role in correcting society wrongs)

Front 40

plaintiff

Back 40

files a civil action

Front 41

defendant

Back 41

the party who must defend against the civil action

Front 42

appelant

Back 42

party who is appealing an adverse decision

Front 43

appellee

Back 43

the party who was successful in trial court

Front 44

petitioner

Back 44

initiates the petition or write of certiorari

respondant=other party

Front 45

Third party defendents

Back 45

additional parties brought into a lawsuit by a defendant (spreading blame)

Front 46

Standing to Sue

Back 46

plaintiff must have standing to bring action against defendant, meaning:
a)must have a cause of action at law (a law must have been broken)
b) plaintiff must show personal stake in the controversy

Front 47

Personal Jurisdiction

Back 47

court has jurisdiction over the plaintiff and defendant during trials

Front 48

summons

Back 48

a notice to the defendant to come to court

Front 49

long-arm statutes

Back 49

used to get jurisdiction over a defendant in another state when:
a) he/she has committed a tort within the state
b) owns property in the state thats subject matter the lawsuit
c) has entered into a contract or agreement in the state where the lawsuit is taking place

Front 50

extradition laws

Back 50

requests to transport prisoner from one state to another

Front 51

Class Action lawsuits

Back 51

when one or more plaintiff files a lawsuit on behalf of a large group of people who all have similar stake in the claim

Front 52

Pleadings

Back 52

a) Complaint - contains claims and relief sought
b) Answer - must admit or deny allegations and may contain AFFIRMATIVE DEFENSES that can defeat a plaintiff's claim
c) counterclaim-defendent complaining against plaintiff

Front 53

default

Back 53

when defendant fails to answer complaint and court goes through and grants relief sought for plaintiff

Front 54

Discovery

Back 54

period of time to gather evidence before trial

Front 55

Methods of Discovery

Back 55

interrogatories - written questions

request for production of documents - (fail to carries severe consequences)

depositions-sworn testimonies before a court reporter

requests for admission - when pleading is no longer necessary - to avoid costs of going to court just concluding pretrial there

Front 56

motion to compel

Back 56

during discovery when court orders a party to take action because either they are not producing documents, answering questions fully, etc.

Front 57

Motion to dismiss for failure to state a cause of action

Back 57

plaintiff is not entitled to the benefits they claim because there is no legal cause of action.

Front 58

Motion to dismiss based on statute of limiations

Back 58

plaintiff missed deadline to file a suit

Front 59

motion for judgment on the pleadings

Back 59

to avoid a long trial, decide the case based solely on complaint and answer

Front 60

motion for summary judgement

Back 60

to question the purpose of the trial, claiming no genuine issue of material fact and
party is entitled to prevail as a matter of law

Front 61

Rule 11 Motion

Back 61

motion that the lawsuit is frivolous, lacking merit, and court should assess fines for the wasted time

Front 62

Jury Selection procedures

Back 62

0)"voir dire" speak the truth, jury members are asked questions so that each side can start to get to know the members
1) excuse for cause- specific reasons you don't want a certain jury member appointed
2)peremptory challenges-certain number of jurors you can strike for no cause or reason

Front 63

Motion for a directed verdict

Back 63

during trial - after seeing all of the plaintiff's evidence, there is no violation of law. rarely works but used to extend time

Front 64

Burden of proof in civil and criminal court

Back 64

Criminal Court- proof beyond a reasonable doubt

Civil Court- preponderance of evidence (greater weight one way or other)
OR clear and convincing-closer to beyond reasonable doubt

if b.o.p is granted, case is over

Front 65

Jury Instructions

Back 65

judge tells jury which laws apply, explains how they apply, and all the facts in the case that must be considered

Front 66

Verdict

Back 66

jury's decision

Front 67

judgement

Back 67

what the judge enters against the losing party

Front 68

judgment not withstanding verdict

Back 68

when judge asks court for judgment opposite of jury's verdict of judge finds verdict erroneous as matter of law

Front 69

Execution of judgement

Back 69

enforce judges decision either via seizing property or garnishing wages (deduction going to court and then to plaintiff)

Front 70

Res Judicata

Back 70

"the thing has been decided" -can't go back and prove evidence false in the court or try party for same crime again

Front 71

conflict

Back 71

2 different points of view on a matter

Front 72

dispute

Back 72

a conflict where one claim is rejected

Front 73

negotiation

Back 73

the process used to persuade or coerce someone to do what you want him to do

Front 74

negotiated settlement

Back 74

working out the dispute by mutual agreement

Front 75

position based negotiation

Back 75

competetive style with parties stating thier expectations (ex. seller has high asking price and buyer has super low bid price, they slowly move towards the equilibrium

Front 76

Principle-based negotiation

Back 76

7 principles
communicating concerns
how can each benefit from the RELATIONSHIP
what are your INTERESTS
what are our OPTIONS
are these LEGITIMATE i.e. do these strategies work for both of us
what are the ALTERNATIVES
are we COMMITTED to holding up this negotiation

Front 77

arbitration

Back 77

disputing parties submit their claims to a neutral third party arbitrator, who has the power to make a binding decision to resolve the issue

Front 78

submission

Back 78

when both parties agree to arbitrate

Front 79

advantages of arbitration

Back 79

pro business, cheaper then court
less likely to have punitive damages
decision is FINAL so no appeals
can select an arbiter whose an expert in a field
keeps proceeding private

Front 80

Federal Arbitration Act

Back 80

federal law that covers any arbitration clause involving interstate commerce

Front 81

Statutorily Mandated Arbitration

Back 81

laws in certain states requiring arbitration in certain matters before resorting to litigation

procedures must be consistent with procedural and substantive due process of law

Front 82

Voluntary/Contract Based Arbitration

Back 82

When parties agree to arbitrate
awards are final
whatever the arbiter finds is conclusive and binding

Front 83

Meditation

Back 83

process by which a 3rd party comes in and tries to assist a dispute between 2 parties

Front 84

advantages of meditation

Back 84

private, can stop at any time, not at risk to being bound by any decisions

Front 85

first amendment

Back 85

congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of speach.

private companies can bar 1st and 4th amendments

Front 86

libel

Back 86

a defamatory written statement communicated to a third party (3rd party must hear it to be considered tort)

Front 87

slander

Back 87

an oral defamatory statement communicated to a 3rd party

Front 88

actual malice

Back 88

knowledge that statements made are false or that they show recklessness and disregard for whether they're true or not

plaintiff must prove this if they are filling a complaint against a public official

Front 89

Prior Restraint

Back 89

doctrine encouraging government to allow publication of thoughts rather then restrain such thoughts in advance of their publication

Front 90

obscenity

Back 90

not protected unless legally considered obscene. to be legally obscene it must meet all of these requirements:
a) if it, taken as a whole, appeals to a prurient interest in sex
b) if it portrays in a clearly offensive way sexual conduct
c)if taken as a whole, has no serious artistic, literary, political, or scientific value

Front 91

Overbreadth doctrine

Back 91

principle used by courts to invalidate legislation that appears to broad in scope then necessary to regulate activity

Front 92

commercial speech

Back 92

corporations weren't orginally protected under 1st amendment, now they are unless there is a compelling state interest in the matter

Front 93

fourteenth amendment

Back 93

nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”

Front 94

due process

Back 94

both substantive and procedural fundamental fairness. As applied to judicial proceedings, adequate notice of a hearing and an opportunity to appear and defend in an orderly tribunal.

Front 95

equal protection

Back 95

requires all citizens to be treated in a similar manner by the government unless there is sufficient justification for unequal treatment.

Front 96

3 levels of scrutiny

Back 96

minimum rationality- requires that the classification has a rational connection to a permissible state end

quasi-strict scrutiny -classification must be substantially related to an important gov't interest

strict scrutiny - requires the classification to be necessary to achieve a compelling state end (race, national origin)