Legal Studies Midterm 1

Front 1

3 Primary Elements of Law

Back 1

1. a rule
2. laid down by the government
3. enforced by the government

Front 2

First known written law

Back 2

Code of Hammurabi (1790 BC)

Front 3

3 things the law provides

Back 3

certainty, predictability, and stability

Front 4

Rule of Law

Back 4

a nation employs rule of law when the law is made GENERALLY and EQUALLY applicable

Front 5

Outcome of Rule of Law

Back 5

means that the people making the laws create fair laws because they also have to follow the laws

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Property

Back 6

the legal right to exclude or keep others from interfering with what you own, with your resources

Front 7

3 ways of applying property

Back 7

1. Public Property
2. Private Property
3. Common Property

Front 8

Law Property

Back 8

means the "ownership" (DON'T think of as the things owned)

Front 9

What do property rights give

Back 9

a major incentive to develop resources

Front 10

Jurisprudence

Back 10

different philosophies of law

Front 11

Common Law vs. Civil Law (Legal Systems)

Back 11

Common Law judges follow former decisions made in courts called precedents while Civil Law judges can apply the law differently for any case

Front 12

Common Law (legal system)

Back 12

emphasizes the role of judges in interpreting and applying the law (courts have the power to interpret the law and apply it to different cases)

Front 13

Civil Law (legal system)

Back 13

relies more on legislation than judicial decisions

Front 14

Where did Common Law Begin?

Back 14

England

Front 15

Public Law vs. Private Law

Back 15

Public law deals with matters involving the entire society while Private Law only deals with matters between private citizens

Front 16

Public Law

Back 16

matters involving the regulation of society

Front 17

Public Law includes:

Back 17

Constitutional Law
Administrative Law
Criminal Law

Front 18

Constitutional Law

Back 18

involves the interpretation and application of either the federal or state constitution

Front 19

Criminal Law

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specifies various offenses against the proper order of the state

Front 20

Private Law

Back 20

matters arising between private citizens

Front 21

Private Law includes:

Back 21

Property Law
Contract Law
Tort Law

Front 22

Tort Law

Back 22

establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another

Front 23

Civil Law (lawsuit)

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Generally means noncriminal lawsuits. Law dealing with private rights between people

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Criminal Law

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Government prosecution of a citizen who commits an illegal action

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The same incident/facts may give rise to both a separate criminal and civil actions

Back 25

Ex: OJ Simpson Trial

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Substantive Law

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Defines the legal relationship between people, business, and the state

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Procedural Law

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Method and means by which substantive law is made and administered (provides the rules that courts use when resolving disputes)

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United States Constitution

Back 28

The highest law in the nation which lays out the law of the nation (supreme law of the nation)

Front 29

What does the U.S. Constitution establish?

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The federal government, and its amendments guarantee basic rights and liberties

Front 30

Purpose of State Constitutions

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Establishes and regulates the state government (sets up rules for the states)

Front 31

Sources of Law

Back 31

Constitution
Legislation
Administrative Regulations
Judicial Decisions/Case Law

Front 32

Legislation

Back 32

Laws written and passed by elected representatives in the Legislative branch (formal written laws)

Front 33

Statute/Act

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Legislation passed by Congress or a state legislature

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Ordinances

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Laws passed by local governments

Front 35

Codes

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Compilations of legislation at all levels of government

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2 Problems to address with legislation

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Uniformity of legislation and interpretation of legislation

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2 methods to achieve uniformity in legislation

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1. Congress can enact a single law that preempts (overrides) varying state laws (limitation is that certain powers are left only to the state)
2. State legislatures can work together to pass one uniform law

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Difficulties with Interpretation of the Law

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Trying to make the law very specific and easy to understand while also not wanting to be so specific that the law isn’t flexible

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Statutory Construction

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Courts have the job to interpret the legislation and apply them to different cases

Front 40

Administrative Regulations

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Give clarity and provide enforcement of statutes

Front 41

Judicial Decisions/Case Law

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Legal opinions issued by a judge deciding a legal issue which has arisen in a case

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What do Judicial Decisions Become?

Back 42

These opinions then become prior precedents for later cases

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Stare Decisis

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The doctrine of prior precedents

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Advantage of Stare Decisis

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People became secure in their right of property

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Advantages of Judicial Decisions

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Reliance on past precedent offers stability and predictability in the legal system, allows judges to take unique facts of a case into consideration to reach a just outcome, and allows judges to consider change in circumstances

Front 46

Disadvantages of Judicial Decisions

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Volume, time, expense, conflicting precedent, lack of precedent, rejected precedent, conflict of laws

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Hierarchy of Laws

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U.S. Constitution, Federal Statues, Federal Administrative Regulations, State Constitutions, State Statutes, State Administrative Regulations, Law Ordinances, Case Law

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3 Types of Court Personnel

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Judges and Justices, Jurors, and Lawyers

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Judge

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The title assigned to those who preside over trial courts and most appellate courts (also called magistrates)

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Justices

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The title granted to those on the U.S. Supreme Court, along with some other state appellate courts

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Question of Fact

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A factual issue disputed by the parties

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Question of Law

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An issue concerning the application or interpretation of the law

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Trial Court Judges

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Decide questions of law and preside over jury trials

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“Bench Trial”

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when a trial court judge decides questions of fact and render a verdict (process is done without a jury)

Front 55

main duty of trial court judges

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to observe and to apply constitutional limitations and guarantees

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Appellate Judges and Justices

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Determine whether the trial judge correctly applied the law

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What do justices usually deal with the most

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Cases dealing with question of law

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Jurors

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The jury is a fact-finding body

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What gives us the right to a trial by jury

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6th and 7th Amendment in the Bill of Rights

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Petit Jury

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Issues a verdict in criminal and civil trials after hearing evidence from both sides

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2 types of Jurors

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Petit Jury and Grand Jury

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Grand Jury

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Determines whether the government has enough evidence to go forward with a criminal prosecution (only used in criminal cases)

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Problem with Juries

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They become disproportionate because people make up excuses to get out of jury duty

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Lawyers

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Represent private parties in court by presenting evidence and legal arguments

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3 Capacities that Lawyers Serve

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counselor, advocate, and public servant

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State Courts

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Hear cases arising under state law or state constitution

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4 Categories of Cases Federal Courts Hear

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1. Federal Question Cases
2. Cases involving the US as a party
3. Cases between two or more states
4. Diversity of citizenship cases

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Subject Matter Jurisdiction

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The authority of a court to hear cases involving specific issues of law (federal courts have it over state courts)

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Trial Courts

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The site of the initial trial

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What takes place in a trial court?

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Witness testimony is heard and the jury renders a verdict

Front 71

What % of court cases are resolved at the trial court level

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95-98%

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Appellate Courts

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Review the legal decisions made by trial courts

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2 Levels of Appellate Courts

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Courts of Appeal and the Supreme Court

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Supreme Court

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The highest court in the jurisdiction which hears appeals from the court of appeals

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Writ of certiorari

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A proceeding by which an appellate court may review the ruling of an inferior court

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How many courts of appeal does the federal system have?

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11 Primary Courts

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Hierarchy of Courts

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Trial Courts → Appellate Courts → Supreme Court

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Most significant power of the courts

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Judicial Review

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Judicial Review

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The power to review laws passed by the legislative body and declare them to be unconstitutional and void

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Judicial Restraint

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Describes the philosophy that judicial power should be used sparingly

Front 81

Judicial Activism

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Describes the belief that courts should play a larger role in correcting societal wrongs

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Litigation

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Bringing and/or defending an action in court to enforce a particular right

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Plaintiff

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The party initiating the lawsuit

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Defendant

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The party being sued

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Counterclaim

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A different claim brought by the defendant against the plaintiff

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Counterplaintiff

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The defendant who files a counterclaim

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Counterdefendant

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The plaintiff who must defend itself against a counterclaim

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State allows all persons to join in one lawsuit as plaintiffs if it is all based on the same cause

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:)

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Third-party defendants

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Party brought into the lawsuit as an additional defendant by the original defendant

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Appellant

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The party challenging the lower court ruling (in appeals court)

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Appellee

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The party that was successful in trial court (in appeals court)

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Petitioner

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The party challenging the lower court ruling (in Supreme Court)

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Respondent

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The party that prevailed in the court of appeals (in Supreme Court)

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Standing to Sue

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Requirement that a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing

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2 requirements for standing

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1. the plaintiff must allege that the litigation involves a case or controversy
2. the plaintiff must allege a personal stake in the resolution of the controversy

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Class Action

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A lawsuit in which one or more plaintiffs file suit on both their own behalf and on behalf of all other who may have a similar claim

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2 reasons the judicial system allows class action

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it is more efficient to have one single suit and people bring a class action when individual law suits wouldn’t be viable

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Personal Jurisdiction

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Power of a court to hear and determine a lawsuit involving the parties before it

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When does the court obtain personal jurisdiction?

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Obtains personal jurisdiction over a plaintiff when he or she files suit

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Ways the court earns personal jurisdiction from the defendant

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The defendant voluntarily appears, the defendant is served with process in the state (summons), the defendant is served with process outside the state

Front 101

Long-arm statutes

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A state can provide for the service of process beyond their boundaries

Front 102

What can no case proceed forward without?

Back 102

The existence of both subject matter and personal jurisdiction

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Pleadings

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The legal documents that are filed with a court to begin the litigation process

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Complaint

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Filed by the plaintiff initiating a lawsuit

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Answer

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Filed by the defendant, admitting or denying each allegation

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Reply

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The plaintiff’s response to the defendant’s counterclaims, if any

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Discovery

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The procedure by which each party obtains the information needed to prepare its case

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Ways to gain discovery

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Interrogatories, request for production of documents, depositions, request for admission

Front 109

Interrogatories

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Written questions which must be answered truthfully by the other party

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Request for production of documents

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Written request for certain categories of documents in the possession of other party

Front 111

Deposition

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Oral questioning by an attorney of a witness who must answer under oath

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3 benefits of a deposition

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helps lock witnesses in, helps the person learn what the defendant know, also if the person dies you can use the tape as evidence

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Request for Admission

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Written question asking the other party to specifically admit or deny a certain fact

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Scope of Discovery

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Requested discovery must be likely to lead to admissible evidence (very broad)

Front 115

Motions

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Written requests made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant

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Statute of Limitations

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A statute that sets a date after which a lawsuit may not be brought

Front 117

Voir Dire

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The preliminary examination of prospective jurors to determine their qualifications and suitability to serve on the jury

Front 118

What does Voir Dire help?

Back 118

Ensure the selection of a fair and impartial jury

Front 119

Reasons you can challenge a juror

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For cause and peremptory challenges

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Peremptory Challenge

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Kick someone off being a juror having no reason or cause

Front 121

Steps of a Trial

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Jury selection, opening statement, presentation of evidence, closing statement, jury instruction, verdict

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Burden of Proof

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The level of proof necessary to prevail at trial

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Burden of Proof needed in criminal cases

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Beyond reasonable doubt

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Burden of proof needed in Civil cases

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Preponderance of the evidence (more likely to happen) or clear and convincing proof (more stringent proof)

Front 125

Order of Litigation

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Pleadings, Pretrial Motions, Discovery, Pretrial Conference, Trial, Post Trial Motions, Appeal

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Verdict

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The jury’s decision

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Alternative Dispute Resolution

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Procedures for settling disputes by means other than litigation

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Settlement

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Resolution reached though direct negotiations between the parties (least formal method of ADR)

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Arbitration

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Submitting a dispute to a neutral third-party who issues a binding decision

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Arbitrator

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The decision maker in arbitration who has no incentive on which decision he makes

Front 131

Most used type of ADR

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Arbitration

Front 132

Voluntary Arbitration

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Arises when the disputing parties agree to arbitrate their disputes

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Mandatory Arbitration

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Arises when a court or statute requires the disputing parties to arbitrate their dispute

Front 134

Submissions

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The act of referring a matter to arbitration

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Award/Decision

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The arbitrator decides which side wins the case

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Reasons selecting an arbitrator

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Expertise, number of arbitrators, scope of authority

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Federal Arbitration Act

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Set the rules to govern the arbitration process

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Judicial Review for Voluntary Arbitration

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Only overruled by the courts if the ruling was arbitrary, obtained by fraud, or contrary to public policy

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Judicial Review for Mandatory Arbitration

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Available if one party is dissatisfied with the result

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De novo judicial review

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The court will hear the case all over as if it hadn’t gone through arbitration

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Mediation

Back 141

Process by which a third person attempts to assist disputing parties in resolving their differences (decisions are not binding)

Front 142

Way that Mediation differs from Arbitration

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Decision made by the mediator is not binding

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Reason Mediation has increased

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Disputing parties retain control over when to settle and when to continue disputing

Front 144

Separation of Power

Back 144

The Constitution provides a system of checks and balances between the Legislative, Executive, and Judicial branches of government. Also divides power between the federal and state/local governments

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Federalism

Back 145

A system of government in which power is divided between a central, national government and various regional, state governments

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The Supremacy Clause (Article VI)

Back 146

Establishes that the Constitution, all federal statutes, and U.S. treaties are “the supreme law of the land”

Front 147

Preemption

Back 147

Occurs when the federal government has claimed the exclusive right to regulate a particular area

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Heart of the reason why the federal government has become so powerful

Back 148

The supremacy clause and preemption

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Contract Clause

Back 149

Regulates states and local government (doesn’t apply to the federal government)

Front 150

1st Amendment

Back 150

Freedom of Speech and Freedom of the Press

Front 151

Commercial Speech

Back 151

?

Front 152

Are Constitutional Rights absolute

Back 152

no. the government can limit them

Front 153

Establishment Clause

Back 153

congress shall make no law respecting an establishment of religion

Front 154

Free Exercise Clause

Back 154

Congress will make no law prohibiting the free exercise of religion

Front 155

Due Process

Back 155

the requirement that all legal proceedings be fair

Front 156

who is exempt from following due process

Back 156

private entitites

Front 157

Procedural Due Process

Back 157

one must be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property

Front 158

Equal Protection

Back 158

that no state shall discriminate against a person (laws apply to everyone)

Front 159

Commerce Clause

Back 159

Congress has the power to regulate commerce with foreign nations, and among several states

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Interstate Commerce

Back 160

commercial trade, business, movement of goods or money, or transportation from one state to another

Front 161

Intrastate Commerce

Back 161

commerce occurring exclusively in one state

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Who regulates intrastate commerce?

Back 162

states

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Police Powers

Back 163

the capacity of a state to regulate matters affecting public welfare, security, morality, and safety

Front 164

Dormant Commerce Clause

Back 164

states mat not pass laws or regulations which could affect interstate commerce

Front 165

Parts of the Commerce Clause

Back 165

Regulation of Foreign Commerce, Regulation of Interstate Commerce, Limitation on State Police Powers, Limitation on State Taxation

Front 166

2 Primary Purposes of Agencies

Back 166

Rule-making and Enforcement

Front 167

Freedom of the press is not absolute

Back 167

Freedom of the press is usually constructed to prohibit prior restraints

Front 168

Defamation

Back 168

The publication of anything injurious to the good name or reputation of another

Front 169

Symbolic Speech

Back 169

Nonverbal expression that is covered in freedom of speech

Front 170

Apportionment

Back 170

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

Front 171

2 types of regulatory authority Administrative Agencies

Back 171

quasi-legislative and quasi-judicial

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Quasi-legislative

Back 172

An agency can issue rules that have the impact of laws

Front 173

Quasi-judicial

Back 173

Agencies can make decisions like courts

Front 174

Notice-and-Comment Rule Making

Back 174

?

Front 175

In order to challenge a promulgated regulation, a party must show

Back 175

1. The delegation of authority to the agency was improper
2. the agency failed to follow proper procedure
3. or the agency exceeded its authority

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Property

Back 176

The legal right to exclude other from resources that are originally possessed or are acquired with force, theft, or fraud

Front 177

Resource

Back 177

Anything that someone may need or want

Front 178

Methods of Allocating Resources

Back 178

Communism/Socialism and Private Property

Front 179

Benefits of a Private Property System

Back 179

Increases the availability of resources, generally associated with a more free and democratic government, promotes incentive, generates capital formation, increases prosperity by making resources easy to sell and divide

Front 180

2 Divisions of Property

Back 180

Real Property and Personal Property

Front 181

Real Property

Back 181

Ownership and interest in land (includes fixtures)

Front 182

Personal Property

Back 182

All other types of movable resources

Front 183

Types of Personal Property

Back 183

Tangible and Intangible Property

Front 184

Fixture

Back 184

Personal property that has become real property, generally through physical attachment

Front 185

Tangible Property

Back 185

Property which can be touched

Front 186

Intangible Property

Back 186

Property with no physical existence

Front 187

Methods of Acquiring Property

Back 187

Acquisition through Exchange
Acquisition through Possession
Acquisition through Confusion
Acquisition through Accession
Acquisition through Gift

Front 188

Acquisition Through Exchange

Back 188

Most common way of coming to have property (ex: when you buy a car you exchange one form of resource you own (money) for another form of resources (car))

Front 189

Contract

Back 189

A legally enforceable promise

Front 190

Contract Rules

Back 190

Control the way owners make agreements to exchange resources in the property-based legal system

Front 191

What do contract rules do?

Back 191

Make exchanges between owners legally binding and enforceable (this allows for one person to sue another if any wrong doing occurs later)

Front 192

Ways of Acquiring Resources Through Possession

Back 192

1. Rule of First Possession
2. Abandonment
3. Lost Property
4. Adverse Possession

Front 193

Rule of First Possession

Back 193

The first person to reduce previously unowned things to possession becomes their owner

Front 194

Abandonment

Back 194

Similar to the Rule of First Possession in that is someone has abandoned what they own the first person to reduce it to possession owns it

Front 195

How does the law measure if the item is abandoned?

Back 195

Measured by intent (whether the previous owner intended to abandon something)

Front 196

Lost Property

Back 196

Finder of item become its owner by reducing it to possession and following a statutory procedure (ex: handing it over to the cops for a certain amount of time)

Front 197

Things that are LOST vs. Things that are MISLAID

Back 197

Things that have been lost go to the first person who subsequently reduces them to possession. Things that have been mislaid go to the person who owns the premises where the item was mislaid

Front 198

Example of Things Lost vs. Things Made

Back 198

$100 dollar bill on a table has been mislaid but if it is on the floor it has been lost

Front 199

Adverse Possession

Back 199

Obtaining ownership of land belonging to another through continuous possession

Front 200

Requirements for Adverse Possession

Back 200

1. Open and Notorious: possessor must occupy land to put the true owner of the land on notice
2. Actual and Exclusive: possessor must physically occupy the land
3. Continuous: possession must not be interrupted
4. Wrongful: the possessor must not have the owner’s permission to be on the land
5. For a Prescribed period of time: adverse possession of between 10-20 years before the possessor become the new owner

Front 201

Acquisition through Confusion

Back 201

Arise when fungible goods (good that are identical) are mixed together

Front 202

Acquisition through Accession

Back 202

Become the owner through accession, which is property acquired by adding something to an owned object

Front 203

Acquisition through Gift

Back 203

When one person gives a gift to another. No mutual exchange of resources occur

Front 204

Gift

Back 204

Transfer of ownership by intent and the delivery of the object gifted

Front 205

Donor

Back 205

The person giving the gift

Front 206

Donee

Back 206

The person receiving the gift (the new owner)

Front 207

The process of Acquisition through Gift

Back 207

The donor (owner of something) gives it to the donee (who becomes the new owner)

Front 208

Testamentary Gift

Back 208

A gift made though a will

Front 209

Types of Ownership

Back 209

1. Fee Simple
2. Life Estate
3. Leasehold Estate
4. Concurrent Ownership

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Fee Simple

Back 210

Represents the maximum estate allowed under law, the owner having the fullest legal rights and powers to possess, use, and transfer the land

Front 211

Fee Simple Absolute

Back 211

Has no limitations or conditions attached

Front 212

Fee Simple Defeasible

Back 212

May have a condition attached to its conveyance (transfer)

Front 213

Life Estate

Back 213

Grants an ownership of land for the lifetime of a specified person

Front 214

Leasehold Estates

Back 214

The property right granted to tenants by a landlord

Front 215

Concurrent Ownership

Back 215

When both personal and real property interests have more than one person that own the same thing (ownership is undivided)

Front 216

Title

Back 216

A document serving as evidence of ownership of property

Front 217

Deed

Back 217

A document of title transferring ownership of land

Front 218

2 protections against ownership problems with deeds

Back 218

Warranty Deed and a Quitclaim Deed

Front 219

Warranty Deed

Back 219

Promises the grantee (usually the buyer) that the grantor (seller) has good ownership and the full power to convey it

Front 220

Quitclaim Deed

Back 220

Makes no guarantees other than that the grantor surrenders all claim against the land

Front 221

Easement

Back 221

The right of one other than the owner of the land to some use of that land

Front 222

Bailment

Back 222

The temporary transfer of possession of personal property from one person to another

Front 223

Bailor

Back 223

Owner of the Property

Front 224

Bailee

Back 224

Person with whom the property is left

Front 225

3 Categories of Bailment

Back 225

1. for the sole benefit of the bailor
2. for the sole benefit of the bailee
3. for the mutual benefit of both parties

Front 226

Security Interest

Back 226

A application of property that gives someone an interest in what belongs to another, usually to secure an extension of credit

Front 227

Types of Security Interest in Land

Back 227

Mortgage
Deed of Trust
Land Sales Contract

Front 228

Mortgage

Back 228

Borrow money from a bank or financial institution and in return give the creditor a security interest

Front 229

Deed of Trust

Back 229

Securing an extension of credit through an interest in the land (done by signing a deed), which is then given to a third party person (or trustee)

Front 230

Land Sales Contract

Back 230

Buying a house or land (A type of document to secure an extension of credit through an interest in the land purchased)

Front 231

Foreclosure

Back 231

When the mortgagor fails to perform his or her obligations as agreed, the mortgagee can come and seize the mortgagor property equal to the amount owed

Front 232

Deficiency

Back 232

If the value of the house doesn’t equal the amount owed then the mortgagee can sue the debtor for the balance owed

Front 233

Right of Redemption

Back 233

Allows the mortgagor to get back the land upon payment of the full amount of the debt

Front 234

Secured Transactions

Back 234

Any loan or credit in which property is pledged as security in the event payment is not made

Front 235

What do secured transactions involve?

Back 235

A debtor who agrees to give the creditor a security interest in a valuable object (or collateral)

Front 236

Attachment to Secured Transactions

Back 236

Occurs when a secured party has given value, the debtor owns the collateral, and security agreement is given

Front 237

Perfection

Back 237

Arises when a security interest has attached and the creditor has taken all proper steps required by Article 9

Front 238

Ways to perfect a security interest

Back 238

Financial Statement and purchase money security interest (PMSI)

Front 239

Nuisance

Back 239

A use of property that interferes with the legal rights of others by causing damage, annoyance, or inconvenience

Front 240

Public Nuisance

Back 240

Arising from some use of land that causes inconvenience or damage to the public

Front 241

Private Nuisance

Back 241

An unreasonable use of one’s property so as to cause substantial interference with the enjoyment or use of another’s land

Front 242

Zoning

Back 242

Laws that divide counties or municipalities into use districts designated residential, commercial, or industrial

Front 243

Eminent Domain

Back 243

The power of the government to take private property for public use after the payment of just compensation to the property owner

Front 244

Just Compensation

Back 244

The government can only take what belongs to private owners upon payment of “just compensation”