Legal Studies Exam 2

Front 1

The Commerce Clause

Back 1

A. Artical I, Section 8 of the U.S. Constitution "the Congress shall have the power to..regulate Commerce with foreign Nations, and among the several states.."

B. Authorizes the Federal government to regulate anything that has to do with interstate commerce

Front 2

The Supremacy Clause

Back 2

A. Article VI - the Constitution, laws, and treaties of the U.S. are the "supreme law of the land"

B. When a federal and state law are in conflict, the state law is ruled invalid

Front 3

Preemption

Back 3

when Congress chooses to act exclusively within an area that is concurrent with states.

Ex: Federal Controlled Substances Act of 1970 and use of marijuana

Front 4

Taxing and Spending Power

Back 4

Artical I, Section 8 - congress has the power to tax - must be uniform among the states

Front 5

The Bill of Rights

Back 5

A. First 10 amendments to the U.S. Constitution

B. Applicable to the states by the 14th amendment

Front 6

Commercial Speech: 3 requirements

Back 6

A. it must seek to implement a substantial government interest

B. it must directly advance that interest

C. it must go no further than necessary to accomplish its objective

Front 7

Unprotected Speech

Back 7

A. defamatory speech

B. violation of criminal laws

C. fighting words - likely to incite others to respond violently

Front 8

Obscene Speech

Back 8

1. Violates contemporary community standards

2. appeals as a whole to the prurient interest in sex

3. patently offensive sexual conduct

4. lacks serious redeeming literary, artistic, political or scientific merit

Front 9

Freedom of Religion

Back 9

1st amendment - the gov''t may neither establish any religion nor prohibit the free exercise of religious practices

Front 10

Due Process

Back 10

5th and 14th amendments - no person shall be deprived of life, liberty or property, without due process of law

Front 11

Procedural Due Process

Back 11

fair procedures

Front 12

Substantive Due Process

Back 12

cannot violate a fundamental right without a compelling state interest.

Ex: speed limit laws

Front 13

Equal Protection

Back 13

14th amendment - a state may not "deny to any person within its jurisdiction the equal protection of the laws."

Ex: single gender colleges, race based laws

Front 14

Privacy Rights

Back 14

Rights of privacy created by case law - not explicit in the constitution

Ex: abortion

Front 15

Tort

Back 15

A civil wrongdoing, breach of a legal duty that approximately causes harm to another - often results in monetary compensation

Front 16

Intentional Torts

Back 16

A. Intent to commit an act

B. The law assumes that a person intends the normal consequences of his actions. Ex: pushing someone who then falls and hurts himself

Front 17

Assualt

Back 17

intentional, unexcused act that creates in another person a reasonable apprehension of immediate physical harm

Front 18

Battery

Back 18

the unprivileged, intentional touching of another person, harmful or offensive contact

Front 19

Defenses to Assault and Battery

Back 19

A. Consent

B. Self-Defense

C. Defense of others- reasonable use of force to protect another person

D. Defensive of property- reasonable, but not deadly, force can be used to protect property

Front 20

False imprisonment

Back 20

intentional confinement or restraint of a person's activities without justification

Front 21

Intentional Infliction of Emotional Distress

Back 21

intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another

Ex: phone prank call that spouse has been killed in a car wreck

Front 22

Defamation

Back 22

wrongfully hurting another persons good reputation

Ex: someone has a loathsome communicable disease, someone has committed or been imprisoned for a serious crime

Front 23

Publication requirement

Back 23

communications to persons other than the defamed party

Front 24

Public figures

Back 24

requirement of actual malice - statement made with either knowledge of falsity or a reckless disregard of the truth

Front 25

Misrepresentation (Fraud)

Back 25

A. misrepresentation of facts or conditions with knowledge that they are false or with reckless disregard for the truth

B. intent to induce another to rely on misrepresentation

C. Justifiable reliance by the harmed party

D. Damages suffered as the result of the reliance

E. Causal connection between the misrepresentation and the damages suffered

Front 26

Trespass to Land

Back 26

Whenever a person, without permission, enters onto, above or below the surface of land owned by another

Front 27

Defenses of Trespassing

Back 27

A. trespass to assist someone in danger

B. licensee - one who is invited to enter property for licensee's benefit. Ex: football game

Front 28

Conversion (civil theft)

Back 28

wrongful taking of property from the rightful owner

Front 29

Negligence

Back 29

the failure to exercise the standard of care that reasonable person would exercise in similar circumstance - duty, breach, damage, casusation

Front 30

Duty of Care

Back 30

the duty to exercise reasonable care in dealings with others, so as not to infringe upon the interests of others

Front 31

Reasonable Person Standard

Back 31

the standard of behavior expected by a hypothetical "Reasonable Person." A breach of this standard may result in liability

Front 32

The Duty of Landowners

Back 32

are expected to exercise reasonable care to protect persons coming onto their property from harm

Front 33

Compensatory Damages

Back 33

reimbursement for actual losses incurred

Front 34

Punitive Damages

Back 34

intended to punish the wrongdoer and deter others - no punitive damages in a negligence action

Front 35

Superceding cause

Back 35

unforeseeable intervening event which breaks the connection between a wrongful act and injury to another

Front 36

Contributory Negligence

Back 36

failure to exercise reasonable care in looking out for yourself

Front 37

Comparative Negligence

Back 37

liability determined based upon each party's negligence - offset for Defendant due to Plaintiff's negligence

Front 38

Res Ipso Loquitur

Back 38

"the thing speaks for itself"

Ex: thumb in a sealed softdrink bottle. The Plaintiff doesnt have to prove how the negligence occured

Front 39

Negligence Per Se

Back 39

the violation of a statue or ordinance is automatically negligence

Front 40

Alabama Guest Statue

Back 40

a guest passenger in an automobile cannot sue the driver of his automobile for negligence in causing a wreck which resulted in the passenger's injury

Front 41

Good Samaritan Statue

Back 41

persons who are aided voluntarily by another cannot sue the person who aided them for negligence

Front 42

Dram Shop Act

Back 42

a bar owner can be held liable to a third party for injuries caused by a person who got drunk in his bar

Front 43

Civil Law

Back 43

duties that exist between persons or entities

Front 44

Criminal Law

Back 44

wrong act against society proclaimed by statue and punishable by fines and/or imprisionment

Front 45

Differences between Civil and Criminal Law

Back 45

1. Burden of proof:

Civil law - preponderance of the evidence

Criminal law - beyond a reasonable doubt

2. Remedy:

Civil law - damages to compensate relief

Criminal law - punishment

Front 46

Violent Crimes

Back 46

1. Murder

2. Rape

3. Assault

4. Robbery (forceful taking)

Front 47

Property Crimes

Back 47

1. Burglary - entering home with intentions to commit crime

2. Theft (larceny)

3. Receiving stolen goods

4. Arson

5. Forgery

Front 48

Public Order Crimes

Back 48

1. Prostitution

2. Gambling

3. Drug Use

Front 49

White Collar Crimes

Back 49

nonviolent crimes committed by an individual or corporation to obtain personal or business advantage

Front 50

Embezzlement

Back 50

theft of funds by a person entrusted with those funds

Front 51

Bribery

Back 51

the unlawful attempt to influence a public official to act

Front 52

Duress

Back 52

unlawful pressure causing someone to perform an act

Front 53

Entrapment

Back 53

inducement by a public official to commit a crime the defendant would otherwise not have committed

Front 54

Statute of Limitations

Back 54

charges for certain criminal offenses must be brought within a specific period of time

Front 55

Immunity

Back 55

state can grant immunity in exchange for information

Front 56

5th Amendment Protections

Back 56

1. Due process of law - fair and order procedures

2. Double jeopardy - cannot be tried twice for same crime

3. Self incrimanation

Front 57

6th Amendment Protections

Back 57

1. Speedy Trail

2. Trail by jury

3. Public trial

4. Right to confront witnesses

5. Right to counsel

Front 58

8th Amendment Protections

Back 58

1. Excessive bail and fines

2. Cruel and unusual punishment

Front 59

Exclusionary Rule

Back 59

all evidence obtained in violation of constitutional rights must be excluded from the trail

Front 60

The Miranda Rule

Back 60

individuals who are arrested must be informed of constitutional rights

Front 61

Criminal Process

Back 61

A. Arrest

B. Preliminary hearing (for felony offenses)

C. Grand Jury (meets in secrecy to determine whether there is a reasonable basis(probable cause) to issue an indictment

Front 62

Sentencing guidelines

Back 62

1. Federal Court - mandatory sentencing guidelines

2. State Courts

3. Probation

4. Habitual offender laws