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306 Cards in this Set

  • Front
  • Back
A body of rules for conduct that allows civilization to exist and people to live orderly lives
What are the three fucntions of law
1. dispute resloutions, 2. protection of property, 3. preservation of state
What are the classifications of law
substantive law, public law, private law, crimial law, and civil law, and procedural law
What is substantive law
body of law that creates , defines, and regulates what your rights and duties are
What is Public law
type of substntive law that deals with the government and its relationship with individuals concerning rights and duties
What is criminal law
(a part of public law) which are violations againest public order
What are the two types of criminal law
felonies, and misdamenors
What is private law
a part of substantive law that deals with the relationship of individuals and organizations
What type of law is business law
private law
What is civil law
( part of private law) wrongs or violations againest on individuals
Who can sue in a civil case
the wronged party
What are the three standards of proof
perpondance, clear and convincing, and beyond a resonable doubt
What is proof of perponderance
the easiest standard of proof in court and used in most civil cases. it is a weighing of the evidence
what is proof of clear and convincing
used in civil cases involving the goverment. which ever side produces the most clearest and convincing eveidence wins
what is beyond a reasonable doubt
highest standard of proof and used in criminal cases. it allows you to come up with different verdicts than a civil case
What is procedural law
gives info that you need to get your remedy in court
what are the two sources of law
constitutional law and judicial law
what is constitutional law
sets forth the general organizational structure , the powers, and the limitations of those powers
what is the supreme law of the land
us constitution
what does the us supreme court do
interperet the constitution and what it means
What is judicial law
deals with the court system
What kind of court system do we have
common law system
What do me mean by common law
case law or judge made law
what besides common law do we also have
an adversary systme
what is an adversary system
it allows us to challenge the actions of others through proof and evidence in court ( basically we initiate the law suit)
What do we have with our common law system
What is precedent
rule of law
Ecery case has a rule of law and with that comes what
stare decisis
What is stare decisis
it means to stand by decided cases
what does stare decisis give our country
gives our legal stsyem stabilty
The court of equity is also known as what
the court of chancery
when do you go to the court of equity
when there is no adequete remedy in court of law
there are no what in the court of equity
what do they use in the court of equity
maxiums ( legal principles)
What is the remedy in a court of law
What are the different remedies in the court of equity
injunction, specific performance, reformation, and recission,
what is an injunction
makes someone cease doing harmful conduct
what is specific performance
order from the court that will make someone have to perform the specifics of their contract
what must occur for a specific performance to occur
breech of contract
what is reformation
when you go to court and ask judge to rewrite tthe terms of the contract
what is recission
when the court will end the contract
what does the judge in the court of equity issue
what do we use to support our cases
restatements of law
what are restatements of law
it igives you a law and a case to back it up
what is legislative law
body of law that comes from our legistaltive ( also knonw as statitory law)
what is commercial law
body of law that deals with trade and commerce
where do we get the basis of this law
for the uniform commercial code
what do we get from the UCC
the rules for commerce
what is admisnstrative law
source of law that comes from your executive branch through your adminstrative agency
what are your sources of law
legislative law, commercial law, and adminstrative law
what can and cannont stand alone
statues and regulations cannont stand alone, court decisions can stand alone
why can court decisions stand alone
because they have been interpreted
what are appleate cases
cases that have already gone to trial, judge has made a decicion and there is an appeal
a law of one state applies to what
only that state
we have reporters of what nature
regional and federal
how many reporters does the us sumpreme court have
what are the parties in a trial level case
plantiff and defendent
what are the parties in a appelate level case
appelate and applle or a petitioner and respondent
what are the three court opinions
majority opinion. concurring opinion, and dissenting opinion
what is a majority opinion
it is the only one that can be qouted by precedent. it is the opinion wirrten by the judge that voted with the majority and it expresses views of the majority. it gives the rule of law
what is the concurring opinion
seperate opinion written by the judge that voted witg tge majority that wants to clarify something. most of the time judges do this because they agree with the majority but not how they came about it
what is a dissenting opinion
seperate opinion written by the judge who did not vote with the majority
what are dissents good for
to turn a law over
what are the precedents of law
the majority opinions
what is the one social responsibilty of a business
to make a profit but to do it legally
what plays into dealing with contracts
your good faith and fair dealings pledge
what does a good faith and fair dealings mean
that they aren't trying to be sneaky etc..
what does unconscionablity deals with
unfairness . it is where you have an unfair situation where one party has all or most of the bargaining power
A uncontiablitly situation is also known as what
a adhesive situation
what is bait and switch
an illegal advertising where thye get you in the store with a inexpensive product and when you go to the store they try to get you to buy an expensive product instead
what is agency law
deals with when someone acts on behalf of another person
what do you need to create an agency relationship
an agreement between parties
what are the three types of agent authority
expressed authority, implied authority, and apparent authority
what is expressed authority
explicit instructions given to the agent by the principal
what is blind obedience
when the agent does what the principal tells him even though he knows it is illegal
what is implied authority
authority that helps the agent carry out his expressed authority
what is apparent authority
comes into play when the principal gives an impression the agent can do something he really isn't supposed to do
principal is liable under what circumstances
the agent acts witin the cope of his authorty
when is the agent liable
when he acts under no authority
Why is vicarious liablity part of the agency relationship
because the principal is vicarious liable as long as the agent is acting within the scope of their job
what is a fidiciary duty and who owes it
the duty of highest loyalty and trust. the agent owes it to the principal
what kind of duty does the principal owe the agent
a duty of good faith and fair dealings
what is an employee at will
a employee that does not sign an a employment contract
what can happen to an employee at will
they can be fired at anytime with or without cause
what is a whistle blower
a person that informs authority of illegal conduct by his or her employer
can a whistleblower be fired
no, the company cannot take any kind of retalitation againest you
what is insider trading
when you get access to information that is not disclosed to the public and you act on it before the info is disclosed
what is the precedent for the cas Chirella v US
if you are in a position of trust and you get acess to privilaged information, that information must be disclosed to the public before you can act on it
what is the duty to act, good samartin law
it is a law that means you have to help your fellow man in need
what precedent does the s Soldano v O'daniels case give us
you cannot keep a good smartian from trying to help
how many seperate and distinct court systems do we have
53 - 50 states, dc, puerto rico, and federal court system
what are federal distirct courts
your trial courts on the federal level
federal trial courts have origional jurisdiction, what does that mean
they have the ability or right to try the case
how many district courts are there on the federal level
how many federal district court judges do we have
what are federal circiut courts
you federal court of appealls
federal circiut courts have appealte jurisdiction, what does that mean
that they have the right to hear appealls
how many judicial circuits are there
what is appealate jurisdiction
means you do not retry the case it reviews the record of the trial court to see make sure there was no procedural or prejudical error
What are the four appealate court decisions
affirm, modify, reverse, and remand
what does it mean to affirm
agree and uphold a courts decision
what does it mean to modify
agree but add some things ( does not change ruling)
what does it mean to reverse
disagree and give new desicion
what does it mean to remand
there was so much error that it needs to be sent back to tbe retried
what is the 3rd court on the federal level
supreme court
what is the highest court in the nation
supreme court
how may justices are there
what ways do cases go to the supreme court
appeal by right and writ of certiorari
what is writ of certiorari
order that the lower courts turn over all the records to the supreme court
how are the cases chosen by the supreme court
the are discretionary. the justices only hear the cases they wanna hear.they only hear about 200 cases a year
What case lets us know that the US Sumpreme court is an appleate court
marbury v madison
what is the case precednt for marbury v madison
That the supreme court cannont give a remedy because they are an appelate court not a trial court
What are limited jurisdiction / inferior trial courts
this is where you have low dollar civil cases and less serious criminal cases ie small claims court
what is the problem with small claims court
you have to enforce your own judgement
What is general jurisdiction court
trial court where you hear the more serious criminal cases and high dollar criminal cases
what are the special courts on the federal level
tax courts . bankruptcy courts
what are the special courts on the state level
probate court, family court
on the state level we have two seperate appealte courts, what are they
intermediate appelate court, and state sumpreme court
what is intermediate appelate court
hear appeals from your lowere trial courts - has two intermediate appelate courts, civil and criminal
what is the state supreme court
highest appealte court in the state
what is jurisdiction
the courts powere or courts authority to hears a case. if a court does not have jurisdiction the court cannot hear the case
what is venue
proper geographical location of the court
what is subject matter jurisdiction
the courts powere of courts authority to hear a certain type of case
what is federal jurisdiction
the federal courts have the right to hear the case
what is exclusive federal jurisdiction
the fedreal courts are the only ones that hear the issue ( bankrupty, patent, antitrust)
what is concurrent federal jurisdiction
the federal courts share this jurisdiction with the state courts meaning you have choice of what court you want
What is federal queston jurisidction
arisies anytime the basis of your lawsuit deals with the us constitution , federal statue, or federal treaty
What is diversity jurisdiction
it allows you to a purely state issue to go to federal court
what are the four reasons you choose federal court
your case is heard sooner, higher level of expertise, less bias, you can get more money
what are the two requirements for diversity jurisdiction
diversity of citizinship and a alledge of being owed 75000 dollars
what is diversity of citizinship
the parties are from different places
What is forum shopping
shopping around for the best court
What case dealt away with forum shopping
Erie Railroad Co v Tompkins
What is the case precedent of Erie Railroad v Tompkins
If a court hears a case dealing with purely state issues the federal court must use the applicaple state laws in making its decisions. It cannot abirtarily apply any law it chooses
What is exclusive state jurisdiction
cases that have to be brought to state court
How do you know if it is exclusive state jurisdiction
it is is not excluusive federal or concurrent federal
What are the types of concurrent federal jurisdiction
federeal questions jurisdiction and diversity jurisdiction
What is conflict of law
when you have various state laws that come into play
What do you do in conlfict of law
go to court to see where you are going to court
What is impersona jurisdiction
sometimes called personal jurisdiction which is jurisdiction over the person
how does a state have impersona jurisdiction over you
you have to have some kind of ties or contact with the state
what is the long arm statue
allows states to extend there jurisdiction beyond their borders
what is in ram jurisdiction
jurisidiction over the thing
What are the first papers filed in court in a civil dispute
What is the main purpose of your pleadings
to draw into focus what your issues are
What is issue of fact
usually there for a jury to decide on
what is an issue of law
there for a judge to decide on ( judge can decide on boht law and fact though)
What is the first pleading that is filed
the complaint
What is a complaint
a short statement that details why the plantiff is bringing the suit and must state what relief they are seeking
What accompys the complaint
the summon
what is the summon
it is to give the defendent a notci that he is being sued an lets him know how long he has to respond to the allegations
what is an answer
it is what the defendent must file which is a response to the allegations in the summon
what can the defendent say in his answer
he can admit, deny, or say he does not have suffcient information to answer
what happens if the defendent does not file an answer
the judge will issue a deflaut judgement and the plantiff will win without ever going to court
what happens if the defendent answers yes to the allegations
the judge will issue a summaray judgement which the plantiff wins withought ever going to court
What is the case precedent from parker v twentith century fox
that you must minimize your losses and if there is no issues in dispute a summary judgement can be issued
What is a counterclaim
when you have your defendent bring a lawsuit againest a plantiff
what is cross claim
when you have parties in the same side who have varying degrees of liablity and sue each other
What is service of the process
to recieve notcie of the lawsuit
what is service by publication
to reciev notice by the newspaper
how can you get service by publication
if you get the judges permission and have exhausted all other ways to service them
what is judgement on the pleadings
papers submitted to the judge on how strong the case is
while getting ready for court what do you have
what is discovery
finding of information run by the attorny but you should never just let an attorny hadle it
what is a diposition
something that happens during discovery and is sworn testimony that anyone can fill out
what are things that you get during discovery
dipostiton, written inerrogatory, production of documents and physical objects to the other party, eximanations, find your witnesses, and requests for admissions
what is the use of a dipostition
it perserves evidence
what is a written interragatory
written request for answers and can only by submitted to parties ie plantiff or defendent
what is request for admission
it is admissions of facts submitted to the opposing party
what is not discoverable
attorney work product
what does it mean to not be discoverable
it does not have to be turned over to the opposing party
what is a pretrial conference
the attornies and judge meet to see what the issues are and set up time for hearing and trials
what are settlement conferences
where the parties decide if they are going to settle the case or not
who can sue
only a person who was injured or wrong and only when there is an actual case or controversy
what is case of controversy
you have suffered the injury and continue to suffer the injury
what is moot
you no longer suffer the injury
what is moot but capable of repitition
you can sue because the oppurtunity to still suffer is there
What is not ripe
you have not suffered the inhjury
what is advisory opinions
an argument that has nothing to do with leagel matters and the court will not make decisons on these matters
what is the first things that happens in trial
jury selection
what is voir dire
questioning period between the potential jurors and attornies to see if they are capable of standing trial
what are challenges
also known as strikes , it is what the attorney exercises to get rid of jurors
what type of challenges are there
challenges of cause and prempotory challenges
what are challaenges of cause
unlimited number of challenegs that say a potential juror is uncapable of standing trial
what are prempotory challeneges
limited number of challanges that they can strike on jurors for any reason with or without cause
what two cases deal with prempotory challeneges
batson v kentuckey, and edmondson v leeville concrete co
what is the precedent fot batson v kentuckey (criminal case)
When making prempotory challenges the attorney had to be neutral in their strikes
what is the case precedent for edmonson v leeville ( civil case)
Says prempotory challenges must be grouped neutral
what is an opening statement
breif overveiw concerning the facts they expect to prove in court
What is direct examination
the party examines their own witness
what is cross eximination
the opposing party exmines the opposing party's witness
what info can be brought up in cross examination
only the info brought up in direct exminationt
what is redirect exmination
when the part examines their witness again after cross eximination
why do we do redirect exminations
to rehaibilitate the witness
what is recross eximination
when the opposing party has a chance to examine the witness after redirect
after the prosecution rests his case what happens
the defendent will ask for a direct verdict
what is a direct verdict
it is when the defense doesn't think that the prosecution met the standard of proof
what happens if the judge does not give a direct verdict
then the defense will start their direct eximinations
after the exmination cycle is finsihed what happens
either party will ask for a direct verdict again
If a direct verdict is again denied then what happens
both parties will give closings
what are closing arguements
the summation of the trial and last thing jury hears
what happens after closing arguments
the judge gives the jury instructions and tells them the law and how to apply the law
what happens after jury instructions
the jury deliberates, if they cannot come up with a uniamous decision then the jury is hung, if they come up with a decicison then after the verdict is read the judge thanks them and then sets up a timeline for a sentincing or judgement
what is a motions for a new trial and how do you get one
it is when you try to get a new trial and you cannot get one unless you get new eivdence that would substantially change the trial
what is judgement not withstanding a verdict
you ask the judge to take away the verdict from the jury usually because they come back with the wrong verdict
How do you get an appeal
the onlt way to get an appeal is if there was some kind of predjudical and procedural error
what does a brief do
it stands in for the witnesses in appealate court
what is a brief
includes statement of the case, your arguments, and your reasoning
what are oral arguments
sometimes when the brief is not enough attornies go before the appealte court to orally argue the brief in front of the judge
what is an order
it is the relief the parties think they are entitled
who submits the order
both parties
after orders are submitted what happens
the judge issues his final judgement
what is garnishment
court order to take money out of a person's bank or check
what is the ful faith and credit clause
each state must respect the final judgement in another state
what are alternative dispute resolutions
ways to have case settled without going to court
what are the advantages of alternative dispute resolutions
privacy, speed, parties can continue relationship, more flexibilty and control
what are the disadvantages of alternative dispute resolution
might not be voluntary, not binding, sometimes can be expensive, no right to due process
what are the 8 different types of alternative dispute resolution
arbitration, concelliation, mediation, med-ar, mini trial, summary jury trial, negotiation, and private trial
what is arbitration
when a neutral third party issues a binfing deicsion on a case after reviewing all the evidence
how can you get an appeal in arbitration
since arbitration is usually not appeallby then the only way to get one is if you can prove bias on the arbitrators behalf
what is an award
what the arbitrators decision is called
what is another names for arbitrator
what happens when parties agree to go to arbitration
that is their exlusive remedy and they cannot change their mind
what is the case precedent to the Circuit City Stores v Saint Clair Adams case
Transportation workers are the only one excluded from the federal arbitration act
what is concelliation
a non binding informal process where parties meet with a concilliator to get the flow of communication going
what is the concilliators job
to open the flow of communication
what is mediation
a nonbinding process hwere the parties appear before a neutral third party the mediator
what is the mediator jobs
to open the line of comuunication and suggest possible solutions
what is the difference between a mediator and a concilliator
the mediator can suggest possible sulotions
what is med-ar
a combiation of mediation and arbitration
what is the mini trial
formalized settlemtn conferencewhere the parties appear before a nuetral advisor
what is the neutral advisors job
to maintian order and if the parties can't come up with a agreement then he can make an advisory opinion
after the advisory opinion ids made what can happen
the parties can talk it over some more and if they still can't make an agreement then they would have to go to court
what is summary jury trial
parties use this to detemine if they have to go to court and to see the stregth of there case, it is a mock trial
What is negotiation
only involves two parties and the two parties get together and try to solve their issue and get a solution
what is a private trial
parties appear before a retired judge ( alson known as rent a judge)
what is attorney client privalage
protects communication between the attorney and the potential client ( almost anything you say is confedintial)
what does the attorney client privlage protect and not protect
protects all past actions but not future actions
attorny cannot represent parties who intrests are what
what does it mean that parties intrests are adverse
the intrests conflict
what is a class action
where one person or small group of people bring an action on a large group of people
in order to bring a class action what must happen
the class must be certified
what does it mean to be certified
the judge agrees the class should serve as one
if the class is not certified what happens
they must sue seperatly
what is the federal supremacy clause
if you have a federal law and state law conflictting the federal law pre-empts the state law
how can the federal sumpremacy law come into play
if you have aonclfict between federal and state laws
What is the silkwood v kerr mcgee corp case precedent
that if there is no conflict in laws there is no preemptive
what is judicial review
allows you to challenge the actions of government
What other case precedent to we get from marbury v Madison besides knowing that the supreme court is an appealte court
you get the right to judical review
in order for you to exercise judical review what must you have
state action
what is state action
some form or branch of government was involved
what is the case precedent of brentwood academy v tennesse secondary althitic association
because well over the majority is goverment thay can be sued as sate action
what is commerce power
power that you legislative branch has
what is commerce clause
found in constitution article 1 section 8 clause 4 and is where congress gets bulk of its power
what powers did congress have in the begining
to regulate intrestae commmerce and regulate commerce between nations
congress can do alot more today because of what four cases
gibbons v odgen, mccollgh v maryland, wickard v fillburn, and russell v us
what is the case precedent of mccollough v maryland
congress can pass law because of the necessary and proper clause. they can pass laws if it is necessary and proper to carry out their duty
what is the case precedent of the gibbons v ogden case
congress can regulate intrastate conmmerce if it affects interstate commerce
what is the case precedent of the wickard v filburn case
if you intrastate commerce has a direct or indirect affect on interstate commerce congress can regulate it
what is the case precedent of russell v us
congress's power can reach to local criminal activity
states have the right to pass laws where
that have no federal action
what is police powers
there to protect the health and safety and welfare of its citizins
with police powers states can do what
pass any laws they want that do not conflict with federal laws and interstate commerce
What is the case precedent of chemical waste managment v hunt
the state has the right to protect their citizins but they cannot conflict with interstate commerce or federal law
what is a contract clause
article 1 section 10 which states congress cannot pass a law that will interfere with your right to a contract
what can congress regulate concerning contracts
they can regulate subject matter but they cannot regulate the contract
what does the first ammednment do
gives us our basic liablities and rights
what is given in the first ammendment
freedom of religion, freedom of speech, right of people to peacably asseblyand due process
what two clauses are there concerning freedom of religion
establishment clause and free exercise clause
what is the establishment clause
congress will make no law about establishing a national church or religion
what is the free exercise clause
can't pass a law on how we practice or if we practice a religion
when is the only time they can pass laws concerning religion
if it is endangering someone
what two types of speech do we get in freedom of speech
corporate political speech and commercial speech
what is corporate political speech
corporations can participate in political processes i endorsing a canidate or issue
What is the case precedent from the abrams case
allows them to particpate in corporate political speech
what does the ballit case give us
corporations can make political contributions but it has to come from a seperate fund
what is commerical speech
how is advertising protected by commercial speech
as long as the advertising is truthful and not misleading it is protected
what is deformation
communicating a false statement
what is an absolute defense to deformation
what is slander
oral defromation
what is libel
written deformation
if your a public offical to sue for deformation what must you show
what is the case precedent for ney york times v sulivan
for a public offical to sue there must be malice
case precedent from gertz v robert welch
order for public offical or public figure to sue for deformation they must show malice
what is the right of people to peacably assebly
right to gather and do things
what do most places have concering the right to peacful assembly
time place and manner resrictions ( there for safty reasons)
what admeendments are worded differently but are the same thing
14th and 5th
what is the 14th and 5th ammendment
due process
what does the 5th ammendment apply too
federal goverment
what does the 14th ammendment apply to
state goverment
what is the types of due process
substantive due process, and procedural due process
what is substantive due process
created to deal with labor law but now deals with rights and liberties of fundamental constitutional rights
what is procedural due process
freedom from arbitray goverment action
what is the basic understanding of procedural due process
before thet can take away your rights you must be given some type of hearing
what types of intrests are coverd in procedural due process
liberty intrest and property intrest
what is liberty intrest
fundamental rights you have
what is porperty intrest
tangible and intangible property rights
before you can have your liberty or property intrests taken away what must happen
you must have some type of hearing
what is the case precedent for fuentes v shevin
before your property can be taken away you must be given a hearing
what is iminent domain
a part of due process , the takinng of private property for public use
what does iminent domain do
allow the govermnet to take your property for public use
what are the two requirments for iminent domain
taking must be for public purpose, and taking must be given just compensation ( although goverment does not have to pay everyone the same)
what is equal protection
no state shall deny equal protection. it deals with imporper classification
what is meant by imporoper classification and is coverd by equal protection
can't classify people in a way that they would be treated unfairly ( you can classify and group people though)
what is the case precedent for brown v board of education
you can't classify and group people and treat them unfairly