B law Flashcards
primary law
Constitutional law
Statutory law
regulations
case law
Constitutional law
law derived from the US Constitution and the constitutions of individual states
Statutory law
is the body of law enacted by legislative bodies at any level of govt (fed, state, local)
regulations
“administrative law” are created by administrative agencies
case law
refers to judicial opinions made by a judge in court
common law
body of general rules applied throughout the entire english realm
remedy
the compensation given to an innocent party to enforce a right or compensate for a violation of the right
remedies at law
compensate for actual loss from damages in a payment of money or property
remedies in equity
are granted to the innocent party when monetary payment is just not enough
equitable principles or maxims
general principles that provide guidance to decide whether a party should be granted remedies in equity or not (clean hands doctrine)
Substantive law
defines, describes, regulates, and creates law
procedural law
establishes methods of enforcing law
Civil law
refers to cases dealing with persons against persons or persons against govt
criminal law
punishes wrongful actions committed by persons against society/public
Trial level courts (state CS)
general and specialized jurisdictions and administrative agencies that perform quasi-judicial “trial” type functions (small claims court, traffic violations)
intermediate appellate court
courts of appeal
a appeal is filed if one party believes the verdict was incorrect
highest appelate court
supreme court
US District court
bankruptcy courts, court of federal claims, tax court (one in every state)
US Court of Appeals
intermediate court of appeals
Writ of Certiorari
the party must request that the supreme court send a writ of certiorari to a lower court requiring the court to send the record of the case for review
rule of four
supreme court will not issue a writ unless at least four justices approve of the decision to issue the writ
when does the litigation process begin
when the plaintiff files a complaint with the appropriate court
summons
a doc. informing a defendant that a legal action has been filed against them and they must show up in court
discovery
the opposing parties obtain info from each other to prepare for trial
voir dire
the process to select a jury by asking questions to make sure the jury isn’t biased (most trials don’t have jury’s)
motion for a directed verdict
the judge can direct a verdict for the party making the motion on the basis that the evidence is good enough
motion for the judgment N.O.V.
requests the court grand judgment in favor of them bc the jury’s verdict was unreasonable
judicial review
a court decides if the laws/actions of the legislative/executive branches are constitutional or not (judicial branch oversee the executive branch)
three requirements for a court to hear a lawsuit
- jurisdiction (authority of a court to hear a case)
- venue
- standing to sue
in rem jursidiction
court having jurisdiction over property involved in a case
concurrent jurisdiction
when two different courts have the power to hear a case
federal courts jurisdiction
when it involves a federal question (US constitution, treaty) or diversity of citizenship (residents of different states/countries) and must exceed $75,000
standing to sue
plaintiff must have suffered harm, or threatened by harm
alternative dispute resolutions (ADR)
settling disputes other than the traditional judicial process
negotiations (ADR)
parties meet informally and come to an agreement
mediation (ADR)
a third party meets with both parties and unbiasly points out specific facts
arbitration (ADR)
parties meet with an arbitrator who imposes a resolution
this can be appealed
commerce clause
provision of the US constitution that gives Congress the power to regulate any activity that substantially affects interstate commerce
Ogden vs. Gibbons
expanded the power of the govt to not only regulate commerce between states but also within a state as well (NY -> NJ steamboat case)
Police powers
refers to power of the state that allows them to promote public order, health, safety, morals (fire codes, building codes, parking regulations)
The Supremacy clause
The US Constitution is the supreme law of the land
preemption
federal laws override local (state) laws
Bill of Rights
originally gave individuals/corporations protection from federal govt but the 14th amendment offered protection against state govt as well
content-neutral laws
govt can’t suppress the content of a message but can control the time, manner, and place of the speech
defamatory speech (not protected by 1st amendment)
harm the reputation of an individual
threatening speech (not protected by 1st amendment)
“I’m going to kill you”
Obscene speech (not protected by 1st amendment)
what one may find obscene, another may not (the word thug may have to do with a specific race but may not)
tort
wrongful act that results in harm/injury to another and usually deals with monetary being given to those being hurt
compensatory damages
compensate the individual/corporation for the actual loss endured
special damages
quantifiable monetary compensation such as medical expenses, lost wages, benefits, etc
general damages
compensation for acts of harm or suffering such as emotional distress, loss of companionship
punitive damages
awarded to the plaintiff to punish the defendant and limit similar conduct in the future
intentional tort
when someone intends to commit an act that causes harm to someone
assault
intentional physical/verbal act that causes immediate harm to someone (throwing a book at a person)
battery
physical damage occurs with intent for offensive contact (EX: unwelcome kiss)
defamation
involving any false statement published or spoken that causes injury to another’s name, reputation, or character
libel
defamation in writing
slander
defamation in oral form
qualified privilege
statements are made in good faith and the report was only intended for people with interest in the situation (manager statements in job evaluation report)
actual malice
statements were made with knowledge of its falsity or with a reckless disregard for the truth
right to privacy
“right to be left alone” (protected in the US Constitution, state constitutions, federal and state statutes)
intrusion into an individuals affairs (invasion of privacy)
paparazzi photos, eavesdropping, wiretapping, “peeping”
false light (invasion of privacy)
publishing info that places the person in false light (must be offensive)
public disclosure of private facts (invasion of privacy)
someone publicly shares facts about a person that no one would typically know (sharing naked photos)
appropriation of identity (invasion of privacy)
using a person’s name, voice, or picture to advertise something (using tiger woods name to endorse a product w/o consent)
right of publicity tort
use of someones identity by way of an identifying characteristic for the benefit of the user (using a robot that looks/acts like bob barker)
fraudulent misrepresentation
any misrepresentation knowingly made with the intention to deceive another person
elements of fraudulent misrepresentation
- misrepresentation of facts with knowledge that they are false
- an intent to induce another to rely on the misrepresentation
- justifiable reliance by the deceived party
- damage suffered
- a connection between the misrepresentation and the injury suffered
puffery
a seller exaggerating the quality of an item is not fraud
intentional torts against property
wrongful actions that interfere with individuals’ legally recognized rights with regard to their land
intentional torts against personal property
- trespass to land
- trespass to personal property
- conversion
- disparagement to property
elements of wrongful interference with a business contract
- there must be an economic expectancy
- third party must know
- third party who knows causes one party to breach a contract
real property
land/things permanently attached to the land (house, land around house, driveway)
personal property
all other items that are moveable (furniture, tables)
Trespass to land
- a person enters above, below, or on the surface of someones land
- remains on the land after asked to leave
- fails to removes something from land which they were expected to move
reasonable duty of care
the owner must safeguard others from dangers on their property
attractive nuisance doctrine
owner of the land has items that may be attractive to children on their land, they are liable for injuries to children
trespass to personal property
- intentional interference w/ personal property
- intentional damage to property
- stealing the personal property
- NO bad faith required, can be an accident
Defense of stealing personal property
if it was warranted/justified (steal a cell phone in order to save someone)
conversion
having control over personal property where the original owner doesn’t have control over it anymore (car theft, buying a stolen good even though you didn’t know it was stolen)
slander of quality (trade libel)
saying a company’s products cause harm to people if used which causes economic hard to the business
slander of title (slander of ownership)
saying someone doesn’t own the property that they are attempting to sell which causes economic harm to the business
tort of negligence
causing someone harm even though it wasn’t intended to cause harm
professional negligence
if the tort of negligence happens in a professional setting, then the standard of care is what a reasonable person in that field would do (EX: accountant not filing a clients taxes can be sued)
factors a court might consider in dealing with duty of care
- relationship of the parties
- degree of expertise expected of the defendant
- potential harmful material in associating the risk
causation
the defendant’s wrongful act must eventually cause harm to the plaintiff
secondary law
books/articles that summarize and clarify the primary sources of law
