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NALA Testing > American Legal System > Flashcards

American Legal System Flashcards

1
Q

kings court of common please

A

king’s court

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2
Q

court of chancery

A

is now referred to as the Equity Court; court could decide based on principle rather than on technical rules

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3
Q

articles of confederation

A

was used from the end of the revolutionary war until the constitutional convention 1787; the US Constitution replaced it because the system was ineffective

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4
Q

national conference of commissioners on uniform state law

A

deals with interstate activity; each state appoints one commissioner to the organization, they draft a model legislation and encourage their adoption by each state

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5
Q

federal agencies

A
  • quasi legislative function
  • no one can be incarcerated by an administrative agency; when criminal actions are warranted, they are referred to the justice department or to the appropriate state attorney general
  • all fed. agency must comply with APA administrative procedure act
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6
Q

erie doctrin

A

there is no federal common law; a fundamental legal doctrine of civil procedure in the United States which mandates that a federal court sitting in diversity jurisdiction (or in general, when hearing state law claims ) must apply state substantive law to resolve claims under state law

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7
Q

difference between stare decisis and precedent

A

stare decisis - is the process used

precedent - the present case must be decided int eh same way

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8
Q

US Constitution
how may articles and amendments:
serves 3 important functions:

A

7 articles | 27 amendments

  1. limit state power
  2. enumerates powers granted to the federal government by the state
  3. guarantees certain rights to the people
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9
Q

doctrine of federalism

A
  • the supremacy laws of article VI; restricts state powers (when a state law conflicts with federal law)
  • a system of government in which power is divided between federal government and state governments
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10
Q

federal government is one of LIMITED powers: what is in article 1, 2 and 3

A

article 1: prohibits congress from any bill of attainder or any expost facto law

article 2: makes the executive branch

article 3: makes the judicial branch

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11
Q

bill of attainder

A

a law directed against a specific person or group

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12
Q

ex post facto

A

one that defines conduct as a crime after the fact

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13
Q

sources of primary law

A
  • Case law (decisions from state and federal courts),
  • Legislation (as passed by state legislatures and the U.S. Congress),
  • Regulations (from both state and federal agencies).
  • Constitutions (both state and federal)
  • Treaties
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14
Q

legislative branch

A

consist of congress, divided into two house: senate and the house of representative; Its main responsibility is the creation of laws (also called legislation); also declares war, regulates interstate and foreign commerce and controls taxing and spending policies

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15
Q

federal judges

A

judges serving in federal courts, such as justices; are nominated by the president and must be confirmed by the senate
*** includes magistrate judges and bankruptcy judges, however, these are neither appointed by the president nor confirmed by the senate; their powers derived from article 1

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16
Q

US court of international trade

A

formerly the “US Custom Courts” is an article III court, with full powers in law and equity; has 9 judges as well as a senior judge
- the Court possesses limited subject matter jurisdiction, hearing only cases involving particular international trade and customs law questions. For example, the Court hears disputes such as those involving protests filed with U.S. Customs and Border Protection, decisions regarding Trade Adjustment Assistance by the United States Department of Labor or United States Department of Agriculture, customs broker licensing, and disputes relating to determinations made by the United States International Trade Commission and the Department of Commerce’s International Trade Administration regarding anti-dumping and countervailing duties.

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17
Q

nunc pro tunc

A

“now for then”; applies retroactively to correct an earlier ruling

ex. correcting a clerical error of a date

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18
Q

writ of mandamus

A

an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion - the judge issues a direct order from the bench of the lower court or government official demanding they comply with the law in the disputed issue

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19
Q

ad damnum

A

clause of a pleading that ask for damages

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20
Q

substantive law

A

is the set of laws that governs how members of a society are to behave; they define rights and duties

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21
Q

federal common law

A

the US Supreme court held in the Erie decision that the federal courts are bound by state common law on issues that are governed by state law

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22
Q

supremacy clause

A

within article VI of the US Constitution, diffracts that federal law is the “Supreme Law of the Land”

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23
Q

limited jurisdiction (state)

A

lowest level of courts (usually county or municipal courts) with original jurisdiction to hear minor criminal cases (petty assault, traffic) and civil case involving monetary amounts up to a fixed amount (such as small claims)

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24
Q

general jurisdiction (state)

A

all other civil & criminal cases are heard in the general courts or courts of general jurisdiction (can go by a variety of names such as superior, circuit, district, common pleas); can hear tort, family matters, and can prosecute those accused of murder, rape, robbery, and other serious crimes

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25
Q

Bill of Rights: Amendment 1

A

Freedom of religion, speech, press, assembly, and petition.

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26
Q

Bill of Rights: Amendment 2

A

Right to keep and bear arms in order to maintain a well regulated militia.

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27
Q

Bill of Rights: Amendment 3

A

No quartering of soldiers.

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28
Q

Bill of Rights: Amendment 4

A

freedom from unreasonable searches and seizures and no warrants shall issue but upon probable cause

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29
Q

Bill of Rights: Amendment 5

A

Right to due process of law, freedom from self-incrimination, double jeopardy; and private property shall not be taken for public use without just compensation

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30
Q

Bill of Rights: Amendment 6

A

the right to a speedy and public trial; right to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense

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31
Q

Bill of Rights: Amendment 8

A

Freedom from excessive bail, cruel and unusual punishments.

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32
Q

Bill of Rights: Amendment 9

A

Other rights of the people.

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33
Q

Bill of Rights: Amendment 10

A

Powers reserved to the states.

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34
Q

14th amendment of the Constitution

A

defines national citizenship and forbids the states to restrict the basic rights of citizens or other persons

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35
Q

state judges

A

usually elected and preside for a fixed term of years

36
Q

police powers

A

the capacity of the states to regulate behavior and enforce laws within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants

37
Q

federalism

A

doctrine where federal and state government powers are divided

38
Q

legal remedies (4 basic)

A
  1. damages
  2. restitution
  3. coercive remedies
  4. declaratory remedies
39
Q

court system: STATE

A
  1. trial courts (trial courts\circuit courts\courts of original jurisdiction)
  2. appellate
  3. state supreme
40
Q

court system: FEDERAL

A
  1. US district (courts of original jurisdiction; 94 courts)
  2. United States court of Appeals (13 circuit courts)
  3. United States Supreme Court (9 justice)
41
Q

Common scenarios where Federal courts have original jurisdiction:

A
  1. cases where the law at issue is a federal law
  2. cases involving treaties
  3. cases involving the Constitution
  4. cases where the US government is a party to the litigation
  5. diversity cases with $75k in damages
42
Q

cases where the US Supreme Court has original jurisdiction:

A
  1. Disputes between two states
  2. Disputes where the United States is a party to the case
  3. Disputes between individuals who do not share a common state
  4. A dispute or crime that arises under a violation of federal law
  5. Habeas Corpus (or false imprisonment)
  6. Bankruptcy
  7. International trade disputes
43
Q

Primary Law

A 
mandatory authority (binding); includes:
constitution\treaties\executive order\rules of procedures\rules of evidence\statutes\regulations
ordinances\opinions
44
Q

Secondary law

A

persuasive; includes:

  • treatises (written explanation\discussion about a specific subject of law)
  • restatements
  • legal encyclopedia
  • practice guides
  • law review (journals by scholars)
45
Q

State statutes

A
  1. legislative
  2. governor signs
  3. put in “session laws’ in chronological order
  4. published into Books
    codes - organizes it by subjects; a collection of statutes that relate to a particular subject
    ex. penal/civil book
46
Q

Federal statutes

A
  1. congress
  2. president signs
  3. “statutes at large” in chronological order
  4. published in the USC (only 1 book, divided into “titles” (subjects)
    ex. title 17 copyrights | title 21 food & drugs
47
Q

Uniform Code of Military Justice (UCMJ)

A

United States Constitution permits Congress to “make rules for the government and regulation of the land and naval forces; Members of the United States Armed Forces are subject to military jurisdiction and: The Uniform Code of Military Justice`

48
Q

The term case law refers to

A

Written appellate court decisions; Case law, or common law, is derived from judicial decisions where the court interprets the law and may decree what the law is when it has not been established by enacted law. Because a trial court decision may be appealed, it is not considered case law.

49
Q

Delegation of powers

A

the transfer of authority by one person or group to another person or group; ex. Congress sets up an administrative agency through an enabling act and gives that agency the powers to make rules and regulations within the agency

50
Q

Adjudication

A

The legal process of resolving a dispute

51
Q

The Federal Register

A

the official journal of the federal government of the US that contains government agency rules, proposed rules, and public notices. It is published daily, except on federal holidays

52
Q

Federal Reporter

A

a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System

53
Q

Code of Federal Regulations (CFR)

A

the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government

54
Q

United States Code

A

the official compilation and codification of federal statutes of the United States. It contains 53 titles and the constitution.

55
Q

3 major sources of law in the American Legal System

A

Statutory law, which is created by the legislative branch;
case law, which the courts interpret and apply the law;
and administrative rules and regulations.

56
Q

tribunal

A

a court of justice

57
Q

venue

A

the geographic district in which an action is tried and from which the jury is selected

58
Q

Delegation Clause

A

an implied clause in the Constitution where one branch may delegate some of its power to another branch

59
Q

3 types of errors and appellate court may review

A

Plain error | procedure error | Reversible error

60
Q

executive branch

A

president appoints officers including a cabinet; the executive branch is over the military and certain administrative enforcement agencies, such as the FBI; enforces our laws; make treaties with foreign nations; appoints; appoint ambassadors; appoint judges to the supreme court; power to veto acts of congress

61
Q

congress establishes the ___ courts, but judicial powers come from article ___.

A

congress establishes the FEDERAL courts, but judical powers come from article 3

62
Q

in rem jurisdiction

A

when subject matter of the suit relates directly to property located within the courts geographic boundary; the court with subject matter jurisdiction in that location has in rem jurisdiction without regard to whether it has personal jurisdiction over the defendant

63
Q

quasi in rem jurisdiction

A

arises when the subject matter of the suit does NOT relate to property in the court’s jurisdiction, but the defendant has property in the court’s jurisdiction that maybe used to satisfy the judgment

64
Q

Conflict of laws

A

determining when the law of more than one jurisdiction may control an issue

65
Q

The United States Constitution is found in the…

A

The first volume of the united states code

66
Q

Preemption

A

Concept: If State laws conflict with federal laws, the federal law will prevail

67
Q

Sunshine law

A

a law requiring certain proceedings of government agencies to be open or available to the public

68
Q

Per curium decision

A

ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively (by the court as a whole)

69
Q

Rape shield

A

a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behavior. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim

70
Q

an order sua sponte

A

actions by a judge taken without a prior motion or request from the parties

71
Q

jurisprudence

A

the science or system of law

72
Q

jus tertii

A

“third party rights”; the legal classification for an argument made by a third party which attempts to justify entitlement to possessory rights based on the showing of legal title in another person
- ex. A tenant, bailee, etc., who pleads that the title is in some person other than his landlord, bailor, etc., is said to set up a jus tertii

73
Q

Marbury v. Madison

A
  • decided in 1803
  • established the doctrine of JUDICIAL REVIEW: that the supreme court can review and overturn laws if they’re unconstitutional
74
Q

uniform law

A

an unofficial set of laws proposed for all states to adopt as written, for the purpose of their being more uniformity of laws form state to state

75
Q

what can never be waived by the parties or by the court

A

subject matter jurisdiction

76
Q

forum shopping

A

a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment

77
Q

conflict of laws

A
  • a set of rules of procedural law which determine the legal system and the law of jurisdiction applying to a given legal dispute
  • In civil law, lawyers and legal scholars refer to conflict of laws as private international law; they typically apply when a legal dispute has a “foreign” element
78
Q

can Congress reduce or enlarge the subject matter jurisdiction of the US district court?

A

yes

79
Q

copyright cases are appealed to the…

A

US Court of Appeals for the Federal Circuit

80
Q

legislation is ___.

A

statutory law

81
Q

15th Amendment

A

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude

82
Q

US Supreme Court justice process

A
  1. appointed by the president

2. approved by the senate

83
Q

Administrative agencies title:

  • established by the president
  • established by Congress
A
  • An agency that is established by the president is referred to as an executive agency
  • agencies established by an act of Congress are referred to as independent agencies
84
Q

ERISA

A

the employee retirement income security act of 1974; a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans

85
Q

Federal courts have type of jurisdiction

A

they are courts of limited jurisdiction
* they can only hear cases authorized by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties.

86
Q

the judicial panel on a multidistrict litigation handles…

What is MDL?

A
  • a group of federal judges that meet and decide whether a case should receive MDL treatment
  • MDL is a consolidation of cases where the tort impacted a large amount of people (normally filed in federal court system)
  • this limits time, money, and inconsistent ruling by multiple judges
  • the Pltf or Defnt. can ask the court that an MDL be established where a single judge will be assigned to those particular cases
87
Q

seventh amendment

A

where the value in controversy shall exceed twenty dollars, guarantees a jury trial for civil cases in the federal courts

NALA Testing (11 decks)

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