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358 Cards in this Set

  • Front
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Act
Legislation adopted by Congress or a state legislature.
Administrative law
The legal principles involved in the workings of administrative agencies within the regulatory process.
Breach of contract
A party's failure to perform some contracted-for or agreed-upon act, or failure to comply with a duty imposed by law.
Citation
The reference identifying how to find a case. (ex: a case opinion cited as 313 N.W.2d 601 (1982) can be located on page 601 of volume 313 of the Northwestern Reporter, second edition, a case decided in 1982).
Civil law
The area of law governing the rights and duties between private parties as compared with the criminal law. This term also describes the system of codifying law in many countries as compared with the judicial orientation of the common law system; relies more on legislation than judicial decisions for law.
Code
A compilation of legislation enacted by a federal, state, or local government.
Common law
The body of law deriving from judicial decisions as opposed to legislatively enacted statutes and administrative regulations; emphasizes the role of judges in determining the meaning of laws.
Compensatory damages
Usually awarded in breach-of-contract cases to pay for a party's losses that are a direct and foreseeable result of the other party's breach. The award of these damages is designed to place the nonbreaching party in the same position as if the contract had been performed.
Conflict of law
Rules of law the courts use to determine that substantive law applies when there is an inconsistency between laws of different states or countries.
Constitutional law
The legal issues that arise from interpreting the U.S. Constitution or a state constitution.
Constitutional relativity
The idea that constitutional interpretation is relative to the time in which the Constitution is being interpreted.
Contract law
The law of legally enforceable promises; enables an owner to exchange resources, especially at a future date.
Corporate governance
A term that has at least two meanings. One relates to how business organizations are created and managed. A second concerns how the various levels of government regulate business organization as they transact business.
Corporation
An artificial, but legal, person created by state law. As a business organization, the corporation's separation of owners and managers gives it a high level of flexibility.
Criminal law
That area of law dealing with wrongs against the state as representative of the community at large, to be distinguished from civil law, which hears cases of wrongs against persons; punishes those who harm an owner's resources in particular ways, for example, by theft.
Dicta
Statements made in a judicial opinion that are not essential to the decision of the case; judges in future cases are not so likely to follow the dicta in prior cases as they are the holdings.
Exemplary damages
Monetary compensation in excess of direct losses suffered by the plaintiff that may be awarded in intentional tort cases where the defendant's conduct deserves punishment. Also called punitive damages.
Holding
The precise legal response in an opinion by an appellate court on an issue of law raised on appeal.
Intentional tort
Noncontractual legal wrong caused by one who desires to cause the wrong or where the wrong is substantially likely to occur from the behavior.
Jurisprudence
The science of the law; the practical science of giving a wise interpretation of the law; the philosophy of law.
Law
The rules of the state backed up by enforcement.
Legislation
Laws passed by an elected body such as Congress, a state legislation, or local council/commission.
Negligence
A person's failure to exercise reasonable care that foreseeably causes another injury.
Opinion
The decision of a judge, usually issued in a written form.
Ordinance
The legislative enactment of a city, county, or other municipal corporation.
Precedent
A prior judicial decision relied upon as an example of a rule of law.
Private law
A classification of legal subject matters that deals most directly with relationships between legal entities; traditionally includes property law, contract law, and tort law.
Procedural law
The body of rules governing the manner in which legal claims are enforced; deals with the method and means by which substantive law is made and administered (ex: the time allowed for one party to sue another and the rules of law governing the process of the lawsuit).
Property
A bundle of private, exclusive rights in people to acquire, possess, use, and transfer scarce resources; a legal right that allows you to exclude others from your resources; a legal fence that keeps others out by announcing private ownership and enforcing it.
Property law
The law of the legal fence that establishes exclusive right in someone called an owner.
Public law
A classification of legal subject matters that regulates the relationship of individuals and organizations to society; includes constitutional law, administrative law, and criminal law.
Punitive damages
Monetary damages in excess of a compensatory award, usually granted only in intentional tort cases where defendant's conduct involved some element deserving punishment. Also called exemplary damages.
Remedy
The action or procedure that is followed in order to enforce a right or to obtain damages for injury to a right; the means by which a right is enforced or the violation of a right is prevented, redressed, or compensated.
Rule of law
The general and equal application of laws, even to lawmakers; an ideal rather than a complete fact.
Sanctions
Penalties imposed for violation of a law.
Specific performance
Equitable remedy that requires defendants in certain circumstances to do what they have contracted to do.
Stare decisis
The doctrine that traditionally indicates that a court should follow prior decisions in all cases based on substantially similar faces; Latin: "let the prior decision stand."
Statute
A legislative enactment.
Statutory construction
The rules courts use in interpreting the meaning of legislation.
Substantive law
A body of rules defining the nature and extent of legal rights.
Tort
A civil wrong other than a breach of contract.
Tort law
Law that established rules for compensation when an owner's legal boundaries are wrongfully crossed by another.
Uniform Commercial Code (UCC)
The most successful attempt to have states adopt a uniform law. This code's purpose is to simplify, clarify, and modernize the laws governing commercial transactions; applies only to purchases and sales of personal property like goods (tangible things like clothing food, electronic items, and jewelry).
Appeal
The right of the litigation parties to have the legal decisions of the trial judge reviewed by an appellate court.
Appellate court
A court that decides whether a trial judge has made a mistake of law; generally are concerned with issues of law.
Courts of appeal
A court that reviews decisions by lower courts.
Diversity of citizenship
The plaintiffs filing a lawsuit must be from states different from those of the defendants. This requirement, along with over $75,000 at stake, is one method a federal court gains jurisdiction over the subject matter of a lawsuit.
Federal question cases
Litigation involving the application or interpretation of the federal Constitution, federal statutes, federal treaties, or federal administrative agencies. The federal court system has subject matter jurisdiction over these issues.
Federal Rules of Civil Procedure
A law passed by Congress that provides the procedural steps to be followed by the federal courts when handling civil litigation.
Judicial activism
Judge tends to abide by the following judicial philosophies: (1) The political process cannot adequately handle society's difficult issues; (2) the courts can correct society's ills through the decision-making process; (3) following precedent is not crucial; and (4) "judge-made law" is often necessary to carry out the legislative intent of the law.
Judicial restraint (strict constructionism/judicial abstention)
A judge who (1) believes that the political process, and not the courts, should correct society's ills; (2) decides an issue on a narrow basis, if possible; (3) follows precedent whenever possible; and (4) does not engage in "judge-made law" but interprets the letter of the law.
Judicial review
The power of courts to declare laws enacted by legislative bodies and actions by the executive branch to be unconstitutional
Petit jury
A fact-finding body during a trial. Also called a trial or traverse jury.
Small-claims court
A court of limited jurisdiction, usually able to adjudicate claims up to a certain amount, such as $3,000, depending on the state.
Subject matter jurisdiction
The authority of a court to hear cases involving specific issues of law.
Supreme court
The highest appellate court.
Trial court
The level of any court system that initially resolves the dispute of litigants. Frequently, but not always, a jury serves as a fact-finding body while the judge issues rulings on the applicable law; can take on any number of names.
Writ of certiorari
A discretionary proceeding by which an appellate court may review the ruling of an inferior tribunal; the procedure for requesting a second review
Affidavits
A sworn written statement made before an officer authorized by law to administer oaths.
Answer
The responsive pleading filed by a defendant.
Appellant
The party seeking review of a lower court decision; party filing an appeal.
Appellee
The party responding to an appeal; the winner in the trial court.
Beyond a reasonable doubt
The burden of proof required in a criminal case. The prosecution in a criminal case has the burden of proving the defendant is guilty, and the jury must have no reasonable doubt about the defendant's guilt.
Brief
A written document produced by a party for a reviewing court that contains the facts, propositions of law, and argument of a party. It is in this document that the party argues the desired application of the law and any contentions as to the rulings of the lower court.
Burden of proof
1) It may describe the party at a trial with the burden of coming forward with evidence to establish a fact.
2) The term also describes the party with the burden of persuasion. This party must convince the judge or jury of the disputed facts in issue or else lose that issue. There are various degrees of proof.
Class-action suit
A method of litigation that allows one or more plaintiffs to file a lawsuit on behalf of a much larger group of persons, all of whom have a common interest in the claims being litigated; such litigation avoids a multiplicity of suits involving the same issue, especially when the issues are complex and the cost of preparation and defense is very substantial.
Clear and convincing proof
A burden of proof that requires the party with the burden to establish clearly the existence of the alleged facts. This burden requires more proof than merely having a preponderance of evidence on one's side.
Complaint
In legal practice, the first written statement of the plaintiff's position and allegations, which initiates the lawsuit.
Counterclaim
Any claim filed by the defendant in a lawsuit against the plaintiff in the same suit.
Counterdefendant
The party involved in litigation against whom a counterclaim is filed. This party is the original plaintiff.
Counterplaintiff
The party involved in litigation who files a counterclaim. This party is the original defendant who is making a claim against the original plaintiff.
Default
The failure of a defendant to answer a plaintiff's complaint within the time period allowed by the court. Upon the defendant's default, a judgment is entered in the plaintiff's favor.
Defendant
The party involved in a lawsuit that is sued; the party required to respond to the plaintiff's complaint.
Deposition
The most expensive discovery process outside the court's supervision that involves the sworn questioning of a potential witness. This oral questioning is reduced to a written form so that a record is established.
Directed verdict
Requests that the judge direct the jury to bring in a particular verdict if reasonable minds could not differ on the correct outcome of the lawsuit. In deciding the motion, the judge will view in the light most favorable to the nonmoving party, and if different inferences may be drawn by reasonable people, then the court cannot direct a verdict. In essence, a directed verdict removes the jury's discretion.
Discovery
Procedures by which one party to a lawsuit may obtain information relevant to the case from the other party or from third persons.
Execution
To carry out some action to completion. With respect to enforcing a court's judgment, an execution involves the seizure of the debtor's property, a sale of the property, and the payment of proceeds to the creditor.
Extradition
The process that one state uses to have another state transfer to the jurisdiction of the first state a person accused of criminal activities; this is done by the governor of the state of arrest voluntarily turning the prisoner over to the governor of the requesting state.
Garnishment
A legal proceeding whereby a creditor may collect directly from a third party who is obligated to the debtor.
Interrogatory
A written question submitted by one party to another in a lawsuit; the cheapest type of discovery procedure.
Judgment
Official adjudication of a court of law; entered when the judge agrees with the jury's verdict.
Judgment notwithstanding the verdict (state court)
The decision of a court that sets aside the verdict of a jury and reaches the opposite result if the verdict is erroneous as a matter of law (not frequently granted).
Judgment on the pleadings
A principle of litigation, in the form of a motion, whereby one party tests the validity of the allegations contained in the complaint and answer. Upon this motion a judge might determine that the pleadings contain no issues of fact or law and thus grant a judgment prior to a trial.
Jury instruction
A statement made by the judge to the jury informing them of the law applicable to the case the jury is bound to accept and apply.
Long-arm statutes
A state statute that gives extraterritorial effect to process (summon) in specified cases. It allows state courts to obtain jurisdiction in civil actions over defendants who are beyond the border of the state provided the defendants have minimum contact with the state sufficient to satisfy due process.
Motion
The process by which the parties make written or oral requests that the judge issue an order or ruling.
Oral argument
Attorneys appear in person before the appellate court to explain orally to the court their position in the case and answer the court's questions about the case; used less frequently today with courts often relying on written briefs.
Peremptory challenges
The power granted each party to reject a limited number of potential jurors during voir dire examination. No reason for the rejection need be given. It can be traced at least as far back as 14th century England.
Personal jurisdiction
The power of a court over the parties involved in the litigation process.
Petitioner
The party filing either a case in equity or a petition for a writ of certiorari before a supreme court.
Plaintiff
The person who initiates a lawsuit.
Pleadings
The system for defining and narrowing the issues by parties who file formal documents stating their respective positions in a lawsuit.
Preponderance of evidence
In the judgment of the jurors, evidence that has greater weight and overcomes the opposing evidence and presumptions; standard used most frequently--especially in contract and tort cases.
Request for an admission
A method of discovery used to narrow the issues to be litigated by having a party request that the other party admit the facts that are not in dispute.
Request for production of documents
A method of discovery whereby one party asks the other to provide documents for the requesting party's review.
Res judicata
The doctrine that deems a former adjudication conclusive and prevents a retrial of matters decided in the earlier lawsuit; Latin = "the thing has been decided."
Respondent
The party answering a petition for a writ of certiorari in the Supreme Court.
Standing to sue
The requirement that a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing.
Statute of limitations
A statute that sets a date after which a lawsuit may not be brought. The statute begins running after the happening of a certain event, such as the occurrence of an injury or the breach of a contract.
Summary judgment
A judicial determination that no genuine factual dispute exists and that one party to the lawsuit is entitled to judgment as a matter of law.
Summons
An official notice to a person that a lawsuit has been commenced against him or her and that he or she must appear in court to answer the charges.
Third-party defendant
A party who is not a party (plaintiff or defendant) to the original litigation. Typically, a defendant might file a claim against a third party stating that if the defendant is liable to the plaintiff, then this third party will be liable to the defendant.
Verdict
Findings of fact by the jury.
Voir dire
The preliminary examination of prospective jurors for the purpose of ascertaining bias or interest in the lawsuit; French = "to speak the truth."
Arbitration
Submission of a dispute to an extrajudicial authority for decision.
Arbitrator
The individual or panel members authorized by disputing parties to resolve a dispute through the arbitration process.
Award
The decision announced by arbitrator; because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the result award.
Caucus
The name used for a private meeting between a mediator and one of the parties involved in a mediation.
Conflict
The common occurrence in life when two or more points of view exist.
De novo judicial review
A proceeding wherein the judge or hearing officer hears the case as if it had not been heard before; may be possible following a MANDATORY arbitration.
Dispute
The circumstance when a party in conflict claims the right to do or have something and the other party denies, rejects, or ignores the claim.
Focus group
A group acting as a mock jury; attorneys present cases to such a group to get the members' feedback on the merits of the various arguments presented.
Mandatory arbitration
A form of resolving a dispute, as an alternative to litigation, that is required by statute.
Med-Arb
An abbreviation for an alternative dispute resolution system that involves parties going through mediation and agreeing to resolve as many issues as possible. These parties agree that any matters not resolved in the mediation process will then be arbitrated.
Mediation
An alternative to litigation whereby a third party attempts to assist the disputing parties in reaching a settlement. The third-party mediator lacks authority to impose on the parties a binding solution to the dispute.
Mediator
An individual who assists disputing parties in their efforts to resolve their differences. Mediators must rely on their persuasive abilities since they have no authority to settle the dispute.
Negotiation
The process used to persuade or coerce someone to do or to stop doing something.
Positional bargaining
A method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground. The seller refers to the last offer made as its bottom line, and the buyer refers to the last offer made as its top dollar.
Postdispute arbitration clause
Can be applicable to arbitration, mediation, or other methods of ADR; such a clause is signed by parties that are already in dispute.
Predispute arbitration clause
Applicable to ADR systems agreed to by contracting parties prior to a dispute arising; usually this clause is a part of the original contract between the parties.
Principled, interest-based negotiations
A method of negotiation that focuses on the parties' interests as opposed to positions. The language used to describe this bargaining includes options, alternatives, objective criteria, and relationships.
Submission
The act or process of referring an issue to arbitration; the process of beginning an arbitration proceeding.
Voluntary arbitration
A method of resolving a dispute, as an alternative to litigation, that the parties agree to utilize. This agreement is irrevocable and may be made before or after a dispute arises.
Administrative agency
An organization, usually a part of the executive branch of government, that is created to serve a specific purpose as authorized by the legislative branch. An agency's function usually is characterized as quasi-legislative or quasi-judicial.
Apportionment
The concept used by states to divide a company's taxable income so that no one state burdens a company with an unfair tax bill.
Commerce clause
A provision in Article I, Section 8, of the U.S. Constitution that grants the federal government the power to regulate business transactions; "Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Commercial speech
Speech that has a business-oriented purpose. This speech is protected under the First Amendment, but this protection is not as great as that afforded to noncommercial speech.
Contract clause
The constitutional provision that prohibits STATES from enacting laws that interfere with existing contracts. The Supreme Court has refused to interpret this clause in an absolute manner. Article I, Section 10, of the Constitution says, "No State shall . . . pass any . . . Law impairing the Obligation of contracts."
Defamation
The publication of anything injurious to the good name or reputation of another.
Dormant commerce clause concept
The impact of the commerce clause as a means of limiting state and local governments' power to regulate business activities.
Due process clause
A provision found in the Fifth and Fourteenth Amendments of the U.S. Constitution. This clause assures all citizens of fundamental fairness in their relationship with the government.
Equal protection clause
A provision in the Fourteenth Amendment of the U.S. Constitution that requires all citizens to be treated in a similar manner by the government unless there is a sufficient justification for the unequal treatment.
Establishment clause
A provision in the First Amendment of the U.S. Constitution that prohibits the federal government from establishing any government-supported religion or church; Congress shall make no law "respecting an establishment of religion."
Exhaustion of remedies
A concept used in administrative law that requires any party to an administrative proceeding to give the administrative agency every opportunity to resolve the dispute before appealing to the court system; applies when a claim must go in the first instance to an administrative agency alone.
Federalism
A term used to describe the vertical aspect of the separation of powers. The coexistence of a federal government and the various state governments, with each having responsibilities and authorities that are distinct but overlap.
Free exercise clause
A provision in the First Amendment of the U.S. Constitution that allows all citizens the freedom to follow or believe any religious teaching.
Irreconcilable conflicts
When a state or local law requires something different than a federal law or regulation and both laws cannot be satisfied. Under Commerce Clause analysis, the state or local law is declared invalid and void.
Libel
A defamatory written statement communicated to a third party.
Malice
The state of mind that accompanies the intentional doing of a wrongful act without justification or excuse.
Minimum rationality
A legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy this test, the government needs to demonstrate that there is a good reason for the government's action. If used, the challenged law and its classifications are usually found NOT to be a violation of equal protection.
Nexus
A logical connection.
Overbreadth doctrine
A principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. This doctrine may be utilized to protect constitutional rights, such as freedom of speech, against a wide sweep of some government action.
Police power
The authority a state or local government has to protect the public's health, safety, morals, and general welfare.
Preemption
A condition when a federal statute or administrative rule governs an issue to the extent that a state or local government is prohibited from regulating that area of law.
Primary jurisdiction
A doctrine used by reviewing courts to determine whether a case is properly before the courts or whether it should be heard by an administrative agency first since such an agency might have expertise superior to the courts'; applies when a claim is originally filed in the courts.
Prior restraints
A principle applicable under the freedom of press and speech clauses of the First Amendment of the U.S. Constitution. The courts have announced decisions that encourage governments to allow the publication or expression of thoughts rather than to restrain such thoughts in advance of their publication or expression.
Procedural due process
The process or procedure ensuring fundamental fairness that all citizens are entitled to under the U.S. Constitution.
Prohibiting discrimination
A standard of review under the Commerce Clause that can invalidate state and local laws. When state and local laws discriminate against or negatively impact interstate commerce, such laws are invalid and void.
Quasi-judicial
Administrative actions involving factual determinations and the discretionary application of rules and regulations.
Quasi-legislative
This term describes the rule-making functions of administrative agencies.
Quasi-strict scrutiny
A legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy this test, the government needs to demonstrate that the purpose of the action is SUBSTANTIALLY related to an IMPORTANT governmental objective.
Separation of powers
The doctrine that holds that the legislative, executive, and judicial branches of government function independently of one another and that each branch serves as a check on the others.
Strict scrutiny
A legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy this test, the government needs to demonstrate that there is a compelling state interest justifying the government's action. If used, the classifications are usually found to be unconstitutional under the equal protection clause. This test is used if the classification involves either a suspect class (race, national origin, legitimacy) or a fundamental constitutional right (to vote, to travel, to appeal).
Supremacy clause
Article VI of the U.S. Constitution, which states that the Constitution, laws, and treaties of the United States shall be the "supreme law of the land" and shall take precedence over conflicting state laws.
Symbolic speech
Nonverbal expression.
Undue burden
Under the Civil Rights Act of 1964 and the Americans with Disabilities Act an employer need not take action that is excessively costly or creates excessive inefficiency in order to accommodate an employee's religious beliefs or disability.
Three concepts establish a necessary framework for the most effectively functioning market in the modern nation:
1) Law
2) Rule of law
3) Property
Law:
1) Law is made up of rules.
2) These rules are laid down by the state and backed up by enforcement (i.e., courts and police).
First known written set of laws
Code of Hammurabi
Three ways of applying the exclusionary right of property:
1) Public property, which applies to public resources owned by the government (or "state") like roads, public buildings, public lands, and monuments.
2) Private property, which applies to resources that you own as an individual.
3) Common property, which applies to resources like land that more than one individual owns jointly.
________ is the central concept of Western legal systems.
Property
Main types or "schools" of jurisprudence:
1) Natural law
2) Positive law
3) Historical school
4) Sociological jurisprudence
5) Legal realism
Natural law
Law contains universal moral principles; these principles are observable in nature, and we can determine them through human reason.
Positive law
Law is simply the commands of the state backed up by force and punishments.
Historical school (Friedrich Savigny)
Law reflects the cultural traditions of a people and recognizes that different nations may have different traditions and, consequently, different laws.
Sociological jurisprudence
Law can and should change to meet new developments in society.
Legal realism
Tries to go beyond just the words of law to examine what police, administrators, prosecutors, and judges are actually doing as they enforce, interpret, and apply laws.
Who follows the common law?
The United Kingdom, the United States, Canada, Jamaica, India, Nigeria, New Zealand, and a few other countries--all colonized by England.
Who follows civil law?
The world's nations not colonized by England.
Only _________ among the U.S. states, follows a partial civil law system.
Louisiana (due to historical ties with France, a civil law nation)
Civil cases
May include suits for breach of contract or tort cases, such as suits for personal injuries; typically, they involve a request for damages or other appropriate relief that does not involve punishment of the wrongdoer.
Criminal cases
Involve a representative of government attempting to prove the wrong committed against society and seeking to have the wrongdoer punished by the court system.
___________ rules of law define rights and duties, while __________ rules of law provide the machinery for enforcing those rights and duties.
Substantive, procedural
Substantive law
Defines the legal relationship of people with other people or between them and the state (ex: that a plaintiff must prove the defendant failed to use reasonable care in order to establish the tort of negligence).
Statutes/acts
Laws enacted at the federal and state levels.
Ordinances
Laws passed by local governments (ex: Athens, Georgia, prohibits the carrying of alcoholic beverages in open containers on public sidewalks and other public areas).
Legislators can achieve uniformity in the law through two methods:
1) Congress can enact a single law that preempts (overrides) varying state laws.
2) The state legislatures can all adopt a single uniform law in a particular area.
Disadvantages of case law:
1) Volume of cases
2) Conflicting precedents
3) Dicta
4) Rejection of precedent
5) Conflicts of law
Originalism
The opposite of constitutional relativity; it stands for the idea that courts should interpret the Constitution only according to the intentions of those who wrote it.
Hierarchy of sources of law:
1) U.S. Constitution and Amendments
2) Statutes of Congress
3) Federal administration regulation.
4) State constitutions
5) State statutes
6) State administrative regulation
7) Local ordinances
8) Case law
Crime
Public wrong against society.
When a person is convicted of a crime, one of the following punishments may be imposed:
1) Death
2) Imprisonment
3) Fine
4) Removal from office
5) Disqualification from holding any office and from voting.
Contract
Legally enforceable agreements.
The single largest number of lawsuits today, especially in the federal courts, involves. . .
One business suing another business for breach of contract.
The law divides torts into three categories:
1) Intentional torts
2) Negligence
3) Strict liability
Intentional torts
Require the plaintiff to prove the defendant intended to cross the boundaries protecting the plaintiff (ex: assault, battery, conversion, and trepassing).
Strict liability
Require the plaintiff to prove only that the defendant has injured something proper to the plaintiff (ex: injury caused by an ultrahazardous activity like blasting).
The sanction (or remedy) for tortious conduct is _____ _______.
Money damages
Assault
Intentionally placing someone in apprehension of his physical safety.
Battery
Intentionally making offensive, unconsented to physical contact with someone.
Conversion
Intentionally depriving someone of goods owned.
Trespassing
Intentionally crossing someone else's land boundaries without permission.
A corporation is owned by ____________ who have _____ in the business.
Shareholders, stock
Progressive income taxation
The tax rate increases as the taxable amount increases.
Product liability
The liability that sellers have for the goods they sell.
__% of lawyers don't ever try cases; they are not litigators.
90
Contingent fee
An arrangement whereby an attorney is compensated for services in a lawsuit according to an agreed percentage of the amount of money recovered.
Litigation
The process of utilizing the court system to resolve a legal dispute.
Jurisdiction
The power and authority of a court or other governmental agency to adjudicate controversies and otherwise deal with matters brought before it.
______ apply the law to the facts.
Judges
______ find or determine the facts from conflicting evidence.
Jurors
_______ present evidence to the jury and argue the law to the court.
Lawyers
The _____ and _______ Amendments to the Constitution guarantee the right of trial by jury in both criminal and civil cases.
Sixth and seventh
In civil cases, the right to trial by jury is preserved in suits at common law when the amount in controversy exceeds $__.
20
Federal law does not specify the ______ of jurors--only the _____ of cases that may be brought to trial before a jury at common law.
Number, types
T or F: Unanimous jury verdicts are not constitutionally mandated.
True
A lawyer serves in three capacities:
1) Counselor
2) Advocate
3) Public servant
Attorney-client privilege
To encourage full disclosure by a client, the rules of evidence provide that confidential communications to a lawyer are privileged.
General jurisdiction
The power to hear any type of case.
Limited jurisdiction
The power to hear only certain types of cases.
Probate courts
Deal with wills and the estates of deceased persons.
Juvenile courts
Deal with juvenile crime and dependent children.
Criminal and police courts
Deal with violators of state laws and municipal ordinances.
Traffic courts
Deal with traffic violations.
__ to __ percent of all complaints are settled or fully resolved at the trial court level.
95, 98
The judicial power of the federal courts extends to matters involving
1) Questions of federal law (federal question cases)
2) The United States as a party
3) Controversies among the states
4) Certain suits between citizens of different states (diversity of citizenship)
For purposes of diversity jurisdiction, a corporation is a citizen of . . .
1) The state of incorporation
2) The state in which it has its principal place of business
How many U.S. Supreme Court justices must vote yes to grant a petition for a writ of certiorari?
Four
Supreme Court case reviews have been steadily _________ in recent years.
Declining
The court system--both at the federal and state level--operates on three levels:
1) The trial court
2) The court of appeals
3) The supreme court
Judicial restraint has been associated with . . .
Conservative judges often appointed by Republican presidents.
Judicial activism primarily is linked to . . .
Liberal judges generally appointed by Democratic presidents.
Habeas corpus
A legal doctrine that gives prisoners the right to challenge their confinement and requires the government to offer valid reasons for imprisonment.
Supreme Court Justices
1) John Roberts, Chief Justice of the United States
2) John Paul Stevens, Associate Justice
3) Antonin Scalia, Associate Justice
4) Anthony Kennedy, Associate Justice
5) Sonia Sotomayor, Associate Justice
6) Clarence Thomas, Associate Justice
7) Ruth Bader Ginsburg, Associate Justice
8) Stephen Breyer, Associate Justice
9) Samuel Alito, Associate Justice
Personal jurisdiction over the plaintiff is obtained when . . .
The plaintiff files the suit.
Personal jurisdiction over the defendant usually is obtained by . . .
The service of a summons, or notice to appear in court, although in some cases it is obtained by the publication of notice and mailing a summons to the last known address.
The typical long-arm statute allows a court to obtain jurisdiction over a defendant even though the process is served beyond its borders if the defendant:
1) Has committed a tort within the state
2) Owns property within the state that is the subject matter of the lawsuit.
3) Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state.
In criminal suits . . .
1) The crime must have been committed within the state for the court to have jurisdiction over the case.
2) Jurisdiction over the person of the defendant is obtained by arrest.
How does the Supreme Court discourage class-action suits?
Federal cases require that members of the class be given notice of the lawsuit; actual notice and not merely notice by newspaper publication is usually required. This notice must be given to all members of the class whose names and addresses can be found through reasonable efforts. In addition, those plaintiffs seeking to bring the class-action suit must pay all court costs of the action, including the cost of compiling the names and addresses of those in the class.
T or F: If a class-action suit is in federal court because of diversity of citizenship, all members of the class must meet the jurisdictional amount of $75,000.
False; only one member
The plaintiff files a pleading, called a complaint, with the _____ _____.
Court clerk
Who delivers the summons and a copy of the complaint to the defendant?
A court official (usually a sheriff or marshal)
Pretrial procedure
1) Plaintiff files complaint
2) Complaints and summons served on defendant
3) Defendant files motion or answer with possible counterclaim and defenses
4) Court rules on motions
5) Plaintiff files reply to answer
6) Attorneys conduct discovery procedures
7) Parties may file motions for summary judgment or judgment on pleadings
8) Court conducts pretrial conference
T or F: The plaintiff's lawyer often will want to have a trial without delay as opposed to the defendant's lawyer who will have a greater incentive to extend the case through discovery and other pretrial procedures.
True
What is discoverable?
The usual rule is that as long as the information sought in discovery will lead to evidence admissible during the trial, the information is discoverable and an objection is overruled.
Motion to dismiss for failure to state a cause of action
"Even if everything the plaintiff says in his complaint is true, he is not entitled to the relief he seeks."
Batson v. Kentucky, 476 U.S. 79 (1986)
Outlawed racial discrimination in jury selection.
J.E.B. v. Alabama Ex. Rel. T.B., 511 U.S. 127 (1994)
Banned gender discrimination in jury selection.
Defendants typically make a motion for ________________ after the plaintiff has present his or her case.
A directed verdict
Trial steps
1) Voir dire--Parties and their attorneys select jury
2) Attorneys present opening statements
3) Plaintiff presents evidence through witnesses
4) Defendant moves for directed verdict
5) Defendant presents evidence through witnesses
6) Attorneys present closing arguments
7) Court instructs jury on the law
8) Jury deliberates and makes decision (verdict)
9) Judge enters judgment on verdict
10) Losing party files posttrial motion
Appellate review
1) Party receiving adverse judgment files notice of appeal
2) Parties file briefs in reviewing court
3) Oral argument made in reviewing court
4) Reviewing court announces decision
5) Further review may be requested by petition to higher court
6) Higher court allows or denies further review
7) Final decision (successful party may require judicial assistance in enforcing the final decision)
Lawyers, in order to preserve an argument for appeal, must show the following:
1) An objection is made
2) In a timely manner
3) Challenging the evidence on specific grounds
4) The lower court's ruling was wrong and
5) The error harmed your client.
Cause of action
The existence of facts giving rise to a judicially enforceable claim (ex: negligence and strict products liability)
Injunction
A court order directing a party to do or to refrain from doing some act.
If a plaintiff lives in GA and a defendant lives in NY and the case cannot be removed to federal court, what do we know?
The case involves less than $75,000 in damages (diversity of citizenship).
Does the long-arm statute apply to extradition?
No; the long-arm statute allows state courts to obtain jurisdiction in CIVIL ACTIONS.
If the jury is undecided, who legally wins?
The jury finds for the defendant.
Is discovery related to law or fact?
FACT
Subpoena
A court order directing a witness to appear or to produce documents in his or her possession.
Why does the plaintiff make his/her opening statement first?
Because the plaintiff has the burden of proof.
Leading question
A question that indicates the appropriate answer because of the way or manner in which it is asked. Typically, such questions are allowed during the cross-examination of a witness but not during the direct examination.
Does a criminal jury find people innocent?
NO! The jury finds a defendant "not guilty beyond a reasonable doubt."
Writ of attachment
Used to freeze assets of a defendant while a legal action is pending.
Only ___ in ___ cases is appealed.
One, ten
Majority opinion
Sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Dissenting opinion
An opinion of one or more judges expressing disagreement with the majority opinion of the court.
Why do judges disagree?
Because the law is not just a series of recipes that everyone can read and follow; it is open to interpretation.
____ of the ____ U.S. Supreme Court Justices must agree for the case to be heard.
Four, nine
Double jeopardy
A constitutional doctrine that prohibits an individual from being prosecuted twice by the same governing body based on the same factual situation; this is NOT the same as res judicata.
__ percent or more of the lawsuits filed settle prior to the completion of the litigation process.
95
Dispute =
Conflict + Claim that is rejected
Five negotiation styles
1) Avoid (low degree of cooperation, low degree of assertiveness)
2) Accommodate (high degree of cooperation, low degree of assertiveness)
3) Compromise
4) Compete (high degree of assertiveness, low degree of cooperation)
5) Collaborate (high degree of assertiveness, high degree of cooperation)
Seven Elements of Interest-Based Negotiation
1) Communication
2) Relationship
3) Interests
4) Options
5) Legitimacy
6) Alternatives
7) Commitment
The most popular ADR Systems used by businesses and people attempting to resolve disputes:
Arbitration and mediation
__ percent of tort cases filed in the U.S. District Courts settled prior to either a bench or jury trial.
98
Advantages of arbitration:
1) Provides a relatively quick and inexpensive resolution of disputes
2) Serves to help ease congested court dockets
3) It is a private proceeding with no public record available to the press and others
4) Use of an expert to resolve the dispute.
The issues submitted to arbitration may be . . .
Questions of fact, questions of law, or mixed questions of fact and law.
The questions of whether the parties agreed to arbitrate is decided by . . .
A judge.
How are arbitrators selected?
Arbitrators generally chosen by the disputing parties. A provision in the agreement to arbitrate or in the statute that requires the arbitration describes how the arbitrator is selected. An arbitrator is often chosen from a list of qualified arbitrators provided by the arbitration service.
It is common to have a panel of _____ arbitrators.
Three; in such cases, each party selects an arbitrator and the two so selected choose a third.
When is a court willing to reverse the award granted in a voluntary arbitration proceeding?
Only when fraud or other clearly inappropriate action by the arbitrator can be shown; if no objections are filed within a statutory period, it becomes final and enforceable, like a judgment.
T or F: State laws cannot prevent arbitration of disputes if the parties are engaged in or impact interstate commerce.
TRUE
Federal Arbitration Act
Encourages disputing businesses to utilize arbitration.
The arbitrators in the mandatory arbitration process are . . .
Retired judges and practicing lawyers, usually experienced trial attorneys.
Two basic forms of voluntary arbitration:
1) Predispute arbitration clause
2) Postdispute arbitration agreement
If the scope of an arbitration clause is debatable or reasonably in doubt, . . .
The clause is construed in favor of arbitration.
T or F: An erroneous view of the law no matter how egregious is binding because the parties have agreed to accept the arbitrator's view of the law.
TRUE; error of law renders the award void only when it would require the parties to commit a crime or otherwise to violate a positive mandate of the law.
Mandatory arbitration statutes that effectively close the courts to the litigants by compelling them to resort to arbitrators for a final and binding determination are void as against public policy and are unconstitutional in that they:
1) Deprive one of property and liberty of contract without due process of law.
2) Violate the litigant's Seventh Amendment right to a jury trial and/or the state's constitutional access to courts' provisions.
3) Result in the unconstitutional delegation of legislative or judicial power in violation of state constitutional separation-of-powers provisions.
T or F: Many jurisdictions authorize fee and cost sanctions to be imposed on parties who fail to improve their positions at the trial as compared to the arbitration.
TRUE
T or F: The failure of a party to be present, either in person or by counsel, at an arbitration constitutes a waiver of the right to reject the award and seek de novo judicial review.
TRUE
Section 10 of the Federal Arbitration Act provides that an arbitration award may be vacated or set aside on any one of four grounds:
1) Where the award was procured by corruption, fraud, or other undue means.
2) Where the arbitrators were obviously partial or corrupt.
3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy or by engaging in any other misbehavior by which the rights of any party have been prejudiced.
4) Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Actions that have been found to constitute such misconduct on the part of an arbitrator as would warrant vacating an arbitration award are the following:
1) Participation in communications with a party or witness without the knowledge or consent of the other party.
2) Receipt of evidence as to a material fact without notice to a party.
3) Holding hearings or conducting deliberations in the absence of a member of an arbitration panel or rendering an award without consulting a panel member.
4) Undertaking an independent investigation into a material matter after the close of hearings and without notice to the parties.
5) Accepting gifts or other hospitality from a party during the proceedings.
Submission in a mandatory arbitration is . . .
Required by statute.
In mandatory arbitration, the procedure is . . .
Associated with a court's supervision; discovery usually is done, and many states require arbitrators to follow the formal rules of evidence.
The number of mediations have increased for three primary reasons:
1) Disputing parties retain control over when to settle and when to continue disputing
2) Cost savings compared to litigation and even arbitration (the active role of lawyers is reduced)
3) Reduction of the legal system governing the process
Steps in the mediation process
1) Mediator's introduction and explanation of mediation.
2) Parties' opening statements.
3) Parties' exchange (or dialogue or negotiation).
4) Brainstorming possible options (or solutions).
5) The agreement (written and signed).
6) Private sessions or caucuses. (These are optional at the mediator's discretion.)
T or F: When the mediation is not aiding the parties, any of them can stop the process by simply stating that they will not participate further.
TRUE
Disadvantages of mediation:
1) There is no enforcement mechanism that ensures the parties will mediate in good faith.
2) If the disputing parties cannot "get together" to select a mediator, the mediation process cannot begin.
3) The requirements for training a mediator are not universally defined; anyone can serve as a mediator.
Valuable sources of credible mediators:
1) Federal Mediation and Conciliation Service
2) American Arbitration Association
Why is there no need for judicial review of the mediation process?
A court-mandated mediation either will result in the parties settling their differences and dismissing the lawsuit or will result in no agreement being reached, which likely means the litigation process continues.
T or F: Mediators usually have the disputing parties sign a consent to mediate that states the mediator cannot be subpoenaed or otherwise be made to testify in any judicial hearing.
TRUE
T or F: Contracts have to be evidenced in writing.
FALSE--unless the contract cannot be completed in one year.
What are TV courts (Judge Joe Brown, Judge Judy, etc.)?
They’re more like arbitrators than anything else. When the parties get an opportunity to be on the program, they sign a voluntary agreement to abide by the decision of the “judge.”
How many articles are there in the original Constitution?
Seven
Which articles establish the legislative, executive, and judicial branches?
The first three articles, respectively.
Article IV
Ensures one nation versus individual states will provide the framework for citizenship and commercial activities; contains the full faith and credit clause and the privileges and immunities clause.
Article V
Provides the process governing the amendment of the Constitution.
Article VI
Describes how this Constitution will be the supreme law of the land; this article also clarifies that federal laws take priority when there is a conflicting state or local law.
Article VII
States the Constitution will become effective upon ratification of the states (occurred in 1789).
Bill of Rights
Provide clear statements of individuals' freedoms and protections from government action.
Which three amendments influence social policy?
1) Thirteenth Amendment abolished slavery
2) Fourteenth Amendment provides protection to citizens against the actions of the state
3) Sixteenth Amendment authorizes the federal income tax
An amendment must be ratified by __ states through legislative action or by a constitutional convention.
38
When various laws are not consistent, the order of priority is:
1) U.S. Constitution
2) U.S. laws
3) State and local laws
If a federal law preempts a subject, then any state law that attempts to regulate the same activity is unconstitutional under which clause?
Supremacy
The First Amendment to the Constitution of the United States establishes the following basic freedoms:
1) Freedom of religion
2) Freedom of the press
3) Freedom of speech
4) Freedom of assembly
5) The right to petition the government for a redress of grievances.
What is the only organized private business given explicit constitutional protection?
The publishing business
Freedom of the Press
"Congress shall make no law . . . abridging the freedom of. . . the press." The press is not free to print anything it wants without liability.
Freedom of speech
Covers both verbal and written communications but does not apply to private action (ex: a private employer may legally impose a policy that certain topics, such as salaries, are not to be discussed in the workplace).
T or F: Freedom of speech protects corporations as well as individuals?
TRUE--Freedom of speech for corporations may not be as extensive as the right of an individual; however, a government cannot limit commercial speech without a compelling state interest expressed to justify the restriction.
Second Amendment
"A well regulated Militia, being necessary to the security for a free State, the right of the people to keep and bear Arms, shall not be infringed."
By a _-_ margin, the Court ruled that the Second Amendment is not limited by its introductory phrase; the Court struck down, as unconstitutional, the District of Columbia's ban on handguns and its requirement that other guns, such as rifles, be kept unloaded or disassembled, or subject to a trigger-locking mechanism.
5-4
Fourteenth Amendment
Restricts actions by state and local governments: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
The first ten amendments describe individual protections against action by the _______ government. The Fourteenth Amendment explicitly clarifies that certain restrictions also apply to _____ (and local) governments.
Federal, state
The due process clause applies only to . . .
Governmental bodies; it does NOT apply to the actions of individuals or businesses.
The first phrase of the First Amendment begins:
"Congress shall make no law."
Jurists have used which clause to "incorporate" or "carry over" the Bill of Rights and make these constitutional provisions applicable to the states?
The due process clause of the Fourteenth Amendment
Three distinct approaches used by courts to challenge state and local laws:
1) Minimum rationality (traditional)
2) Strict scrutiny
3) Quasi-strict scrutiny
A suspect class is . . .
One that has such disabilities, has been subjected to such a history of purposeful unequal treatment, or has been placed in such a position of political powerlessness that it commands extraordinary protection from the political process of the majority (ex: classifications directed at race, national origin, and legitimacy of birth).
Why has gender not been moved to the strict scrutiny analysis?
Cases involving gender discrimination are so infrequent; states understand that unequal protection on the basis of gender is unacceptable.
The commerce clause has been interpreted as creating at least four important areas involving various aspects of the government regulating businesses:
1) Regulation of foreign commerce
2) Regulation of interstate commerce
3) Limitation on state police power
4) Limitation on state taxation
T or F: State and local governments may regulate foreign commerce.
FALSE
T or F: Even activity that is purely intrastate in character may be regulated by Congress, when the activity, combined with like conduct by others similarly situated, substantially affects commerce among states.
TRUE
Exclusively federal subjects
Any state regulatory law is unconstitutional under the supremacy commerce clauses.
Exclusively local subjects
The impact on state and local government of laws based on the commerce clause is very limited; very few subjects are exclusively local.
Possible dual regulation subjects
1) Federal law preempts the field. The subject matter is considered exclusively federal.

2) Federal law does not preempt the field. A state law is unconstitutional if it:
a. Is in irreconcilable conflict with federal law.
b. Constitutes an undue burden on interstate commerce.
c. Discriminates against interstate commerce in favor of intrastate commerce.

3) No federal law. A state law is unconstitutional if it:
a. Constitutes an undue burden on interstate commerce.
b. Discriminates against interstate commerce in favor of intrastate commerce.
Why are taxes apportioned?
To prevent multiple taxation of the same property or income of interstate businesses.
______________ ________ create and enforce the majority of all laws constituting the legal environment of business.
Administrative agencies
Consumer Product Safety Commission (CPSC)
Protects the public against unreasonable risks of injury associated with consumer products.
Environmental Protection Agency (EPA)
Administers all laws relating to the environment, including laws on water pollution, air pollution, solid wastes, pesticides, toxic substances, etc.
Federal Aviation Administration (FAA)
Regulates civil aviation to provide safe and efficient use of airspace.
Federal Communications Commission
Regulates interstate and foreign communications by means of radio, television, wire, cable, and satellite.
Federal Energy Regulatory Commission (FERC)
Promotes dependable, affordable energy through sustained competitive markets.
Federal Reserve Board (FRB)
Regulates the availability and cost of money and credit; the nation's central bank.
Federal Trade Commission (FTC)
Protects the public from anticompetitive behavior and unfair and deceptive business practices.
Food and Drug Administration (FDA)
Administers laws to prohibit distribution of adulterated, misbranded, or unsafe food and drugs.
Equal Employment Opportunity Commission (EEOC)
Seeks to prevent discrimination in employment based on race, color, religion, sex, or national origin and other unlawful employment practices.
National Labor Relations Board (NLRB)
Conducts union certification elections and holds hearings on unfair labor practice complaints.
Nuclear Regulatory Commission (NRC)

Occupational Safety and Health Administration (OSHA)
Ensures all workers a safe and healthy work environment.
Securities and Exchange Commission (SEC)
Enforces the federal securities laws that regulate sale of securities to the investing public.
Any party seeking the judicial review of any administrative agency's decision must be able to prove standing to sue by addressing two issues:
1) Is the action or decision of the agency subject to judicial review?
2) Is the Plaintiff "an aggrieved party?"
The Federal Administrative Procedure Act provides for judicial review except where
1) Statutes preclude judicial review
2) Agency action is committed to agency discretion by law.
There are two basic issues in litigation challenging the validity of a rule made by an administrative agency.
1) Is the delegation valid?
2) Has the agency exceeded its authority?
Delegation of quasi-legislative authority to administrative agencies is subject to two constitutional limitations:
1) It must be definite; the delegation must be set forth with sufficient clarity so that all concerned, and especially reviewing courts, will be able to determine the extent of the agency's authority.
2) It must be limited; an agency's power to act is limited to areas that are certain, even if these areas are not specifically defined.
T or F: Courts cannot interfere with the discretion given to the agency and cannot substitute their judgment for that of the agency.
TRUE
T or F: Unlimited administrative authority can be passed from Congress to an agency or official of the executive branch.
FALSE
Two doctrines guide courts in the judicial review of agency adjudications:
1) Exhaustion of remedies
2) Primary jurisdiction
When it reviews the findings of fact made by an administrative body, a court does not . . .
1) Reweigh the evidence
2) Make independent determination of fact
3) Substitute their view of the evidence for that of the agency
When it reviews the findings of fact made by an administrative body, a court does . . .
Determine if there is substantial evidence to support the action taken; substantial evidence is that which a reasonable mind might accept as adequate to support the conclusion.
For the courts to exercise their function of limited review . . .
An agency must provide a record that sets forth the reasons and basis for its decision; if this record shows that the agency did not examine all relevant data and that it ignored issues before it, a court may set aside the agency's decision because such a decision is arbitrary and capricious.
1607
Founding of the first European colony in the US.
1789
State adoption of the U.S. Constitution.
What US state has a unicameral legislature?
Nebraska
Preamble to the U.S. Constitution
"We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Who is that says Congress has the power, constitutionally, to create the Federal Arbitration Act, the Civil Rights Act, etc?
The Supreme Court!
Rights of Congress (Article I, Section 8)
pg. 659
Two presidents have been impeached but not convicted:
Johnson and Clinton
Which President threatened to appoint additional Supreme Court Justices?
Roosevelt
Why don’t we know what freedom of speech means?
You have free speech up to the point that you don’t overstep your boundaries and infringe upon what is privately proper to someone else. We know where property lines are from different interpretations.