B LAW FINAL EXAM REVIEW Flashcards
Administrative law
-Consists of rules and procedures established by regulatory agencies
-These rules are called regulations
-Legislatures give power to regulate a particular kind of activity to an administrative agency
Common law
-Law created by judges
-Making decisions based on customs/traditions and sharing them with each other
-They tried to share the same law in common with everyone in the country
Constitution
-The most fundamental/supreme law in the US
-Establishes the national government, creates a system of checks and balances, and guarantees rights to citizens
Judicial review
-One of the 3 ways in which courts make laws
-When a judge or jury reviews a case
-Stare decisis
Justice is Blind
Regardless of age, race, religion, etc. everyone is treated fairly and equally
-Impartial and objective
Laws
-Define the legal rights and duties of the people and provides the means of enforcing these duties
Regulatory agenices
-An agency that establishes rules and procedures called regulations
-Formed because the government lacks time and expertise
Ex: FDIC, CIA, FBI…
Stare Decusus
-“Let the decision stand”
-Means a judge is required to follow a previous court decision when deciding a case with similar circumstances
-Based on precedence
Unconstitutional
-Can also mean invalid
-States that federal and state statutes cannot conflict with the US Constitution
Appeal
-When cases are reviewed by a higher authority
Burden of Proof
-Met when the party with the burden convinces the fact finder that there is a greater than 50% chance that their claim is true
-Prosecution has burden of proof in a criminal case
-Prove beyond reasonable doubt
Closing Argument
-Made by the lawyers at the end of trial
-The evidence is discussed as well as what they have proven
-Highlight key points and try to point the jury’s attention to flaws in the opposing sides argument
-Each side gets a final chance to make an impression
Despositions
-A sworn testimony out of court
Grand Jury
-A grand jury is a jury that is given evidence to decide whether there is probably cause to put someone on trial
Jurisdiction
-The legal ability to hear a case
-The power/right to make a decision and to interpret/declare law
Appellate
-The ability for the court to hear the case on appeal
General Jurisdiction
-A courts ability to hear any type of case
Limited Jurisdiction
-Federal courts have limited jurisdiction
-Means they can only hear cases by the US constitution or federal statutes
Original jurisdiction
-District courts have original jurisdiction
-Means they have the authority to preside over cases first
-Criminal or civil
Juvenile Delinquent
-A person under the age of 18 that commits a criminal offense or act
-Juvenile delinquency is a violation of the law by a person under 18 that would have been a crime if committed by an adult
Juvenile Offender
-Aged 13-15 and charged with a serious crime or violent felony
-If convicted they are subject to less severe sentences than adults
-They will have a permanent criminal record
Opening statements
-Allows both parties attorneys to tell their view of the events
-Does not involve evidence or witnesses
-The plaintiff attorney makes their statements first
Petit Jury
-Present at a generally public trial to decide whether to convict someone of a crime
-They determine the guilt or innocence
Plain View Exception
-Allows an officer to seize evidence of a crime without a warrant if it is in plain sight
Restitution
-Compensation for an injury or loss
Summons
-A form given by the plaintiff and issued by a court that tells the defendant that they are being sued and are required to attend in court
US Supreme Court
-Always takes cases that affect the people, not the individual, so they can clarify legal rights for everyone
The rule if 4
-States that if the supreme court thinks the case has value and 4/9 judges agree they will issue a writ of certiorari
Writ of Certiorari
-When a higher court asks a lower court to pass their case on
Verdict
-The findla decision made by a jury
-It will either be in favor of the defendant or the plaintiff
Voir Dire
-Purpose is to exclude people from the jury who may not be able to decide the case fairly
-They might exclude people who may have information about the case, who knows someone involved, or has a strong prejudice about an aspect of the case
Youthful Offender
-A status for people age 14-18
-Determined at sentencing
-If granted there will be no permanent record for the offender
Required State of Mind
-Intent
-The definition of a crime can be changed based on the criminals state of mind
-1/2 elements of a crime
Aggravated Assault
-Committed with a deadly weapon or with the intent to commit murder, rape, or robbery
Crime
-An act against the public good
Defendant
-The person accused of a crime
Embezzlement
-Wrongful taking of another’s property by a person who has been entrusted with it
-Usually an employee who steals funds
-Take a very small amount over a long period
Entrapment
-If a law enforcement officer induces a law-abiding citizen to commit a crime, the person can use entrapment as a defence
-Coercion is used
Felony
-A major crime punishable by imprisonment in a penitentiary or death
Justifiable Homicide
-Includes killing in the line of duty or self defense
Manslaughter
-Unlawful killing of another without malice aforethought
Voluntary
-When one person intends to kill another but does so suddenly and as a result of great personal stress
Involuntary
-When a person kills another while committing an unlawful or reckless act
-It is unintentional
Misdemeanor
-Less serious crimes that are punishable by a fine or jail sentence that is less than a year
Motive
-The reason behind someone committing a crime
-It plays no part in proving criminal liability, but it may help to establish guilt
Murder
-Unlawful killing of another human being with malice aforethought
-They have a conscious intent/plan to cause harm
1st degree murder
-Killing of important personnel such as a police officer, medical personnel, a witness, in a cruel way, etc.
2nd degree murder
-When none of the conditions in 1st degree murder apply
Phishing
-The attempt to acquire a financial data, passwords, or other personal information from consumers by sending email messages that claim to be from legitimate business
Plaintiff
-In a civil case, it is the person that brings a case against someone else
Self- Defense
-When people have good reason to believe they are in danger of serious injury or death, they can use force to protect themselves
White-collar crimes
-Non-violent illegal acts committed by deceit/concealment
-Attempts to obtain money or another business advantage
-Involve fraud and larceny
Foreign Enforcement
-A judgement rendered outside a country can be collected inside, just as an internal judgement can be
Foreign Recognition
-A decision by a court outside a country is legally valid inside
Jus Cogens
-“Compelling Law”
-Norms that have attained the highest legal status in international law
-A fundamental legal principle that cannot be changed by custom or pratice
Regional Alliances
-A collection of sovereign nations that band together
Shari’a
-Religious legal system
-Business relationships promote honesty and transparency
-“Islamic Law”
USMCA
-The United States Mexico Canada agreement
-Digital Trade is regulated, environmental regulations are easier to enforce, workers rights are protected, rules on intellectual property is strengthened
The World Court
-The ICJ settles international legal disputes and gives advisory opinions to the UN and its agencies
-Only has jurisdiction that have agreed to be bound by its decisions
Assumption of Risk
-If a defendant can show the plaintiff knew of the risk involved and still took the chance of being injured
Breach of Duty
-The failure to use the degree of care that a reasonable person would exercise in the same situation
-Reasonable person must be used when instruction the jurors
-Negligence
Compensatory Awards
- An amount of money that the court believes will restore the plaintiff to the position they were in before the defendant caused injury
-Medical expenses, lost wages, pain and suffering
Defamation
-Anything published or publically spoken that causes injury to others good name, reputation, or character
-Statements must be false
Slander
-False statement made orally to a 3rd party
Libel
-False statement in printed/writing form
Duty of Care
-All of us have a duty not to violate certain rights of others
-The plaintiff must demonstrate that the defendant owed them duty of care
Negligence
-An accidental or unintentional tort resulting from the failure to exercise the degree of care that a reasonable person would in those same circumstances
Contributory negligence
-Behavior of the plaintiff that causes their injuries
-Plaintiff will receive nothing and they lose the case
Comparative negligence
-The negligence of each party is compared under this doctrine and the amount of the plaintiffs recovery is reduced by the percent of negligence
Nuisance
-Anything that interferes with the enjoyment of life or property
Public nusiance
-When the nuisance affects multiple people
Ex. Loud noises, noxious fumes
Private nusiance
-Affects one person
Ex. A tree hanging over a fence
Attractive nuisance
-A landowner may be held liable for injuries to trespassing children if the injury is caused by an object likely to attract children
Ex. Pools, wells
Proximate cause
-The legal connection between unreasonable conduct and the resulting harm
-Without this, the result would not have occured
-Foreseeability test: Could you foresee the incident
Punitive Awards
-When awarding, a court must consider 3 guidepost
-The reprehensibility of the defendants conduct
-The ratio between the harm suffered and the award
-The difference between punitive and civil penalties used in similar cases
Strict Liability
- Some activities are so dangerous that the law will not apply the principles of negligence of the rules of intentional torts
-If these activities injure someone or damage property, the people engaged in these activities will be held liable regardless of intent
Tort and tortfeasor
-Tort: A private wrong committed by one person to another
Tortfeasor: The person who committed the tort
6 elements of a contract
- Offer
- Acceptance
- Genuine Agreement
- Capacity
- Consideration
- Legality
Offer
- A proposal by one party to another intended to create a legally binding agreement
Acceptance
- The 2nd parties willingness to go along with the 1st parties proposal
Genuine Agreement
- A valid offer met with valid acceptance
Capacity
- The legal ability to enter into a contract
Consideration
-The exchange of things of value
Legality
- People can only enter into contracts for legal purposes
Mirror Image Rule
-The terms of the offer must not be changed in any way
Bilateral
-Both parties make a promise; the contract contains 2 promises
Counteroffer
-Any change in the terms of the offer means the offeree has made a counter offer
-A new offer is created and the first one ends
E-sign act
-States that an electronic signature s as valid as one on paper
Exceptions: Court papers, evictions, etc.
Express
-A contract stated in words, either oral or written
-All terms are explicitly stated
Implied
-Formed from the actions of the parties, either in whole or in part
Ex: A hairdresser and client
Invitations to negotiate
-Ads in newspapers, magazines, and catalogs
-Invitations to make an offer, they are not offers
Mailbox Rule
-An acceptance that must be sent over long distance is affective when sent
Rejecting
-A refusal of an offer
-The offeree brings the offer to an end
Revocation
-The taking back of an offer by the offeror
Unenforceable
-One the court will not uphold; some rule of law prevents enforcing it
-Example: has to be in writing
Unilateral
-Contains a promise by only one person to do something
-The other party can accept only be doing what is stated
Valid
-Legally binding, satisfies, he laws requirements
Void
-Has no legal effect, usually because the purpose is illegal or because one of the parties lacks legal authority
Voidable
-When the law permits one party to terminate because of some defect, such as a minor
-Ex. Person w/ guardian
Bilateral Mistake
-When both parties to a contract are mistaken about some important fact
-Either parties may avoid a bilateral mistake contract
Concealment
-When individuals make false representation by choosing not to reveal important information
-This can be known as passive fraud
Disaffirmance
The legal avoidance or setting aside of a contractual obligation
-Minors can disaffirm
Emancipated
-Minors who are no longer under control of their parents are emancipated
-This means they are responsible for their contracts and are no longer protected by their parents
Emotional distress
-When the threat of physical force is used to force a person to enter a contract
-In this case the contract is voidable
Fraud
-A deliberate deception intended to secure an unlawful gain
Elements: False representation of fact, knowledge of falsity, intent to deceive, reasonable reliance, loss suffered
Guardian
-If a court has previously determined that a person is mentally incompetent and has appointed them a guardian to represent them, any contract made by that person is void
-Contracts made by a court appointed guardian are valid
Material fact
-One that is important and matters to one of the parties
Undue influence
-When a person uses unfair and improper persuasive pressure to force someone into an agreement
-Ill health and old age may weaken someones position
-Key factor: They are not exercising their own free will
Unilateral mistake
-An error on the part of one of the parties in a contract
A person cannot avoid a contract because of this
Ex: Mistake as to the Nature of Agreement, Mistake as to the Identity of the party
Accord and Satisfaction
-A dispute can be settled by this
-If the creditor accepts a payment that id less than what is due as full payment
Accord: The acceptance by the creditor of less than what was been billed to the debt
-Satisfaction- The agreed-to settlement as contained in the accord
Bargain- For- Exchange
-A promise in return for a promise
-A promise in return for an act
-A promise in return for a promise not to act
Benefit
-Something that a party was not previously entitled to recieve
Detriment
-Any loss suffered during the act of considered
Gratuitous agreement
-An agreement in which there is no consideration
-They are also known as free agreements
-The law refuses to enforce these
Past Consideration
-The act of giving or exchanging benefits and detriments must occur when a contract is made
-Consideration that took place in the past or is given for something that has already been done is not legal or enforceable
Pre-existing duty
-If a person is already under a legal obligation to do something, a promise to do that same thing is not consideration
Promissory Estoppel
-A doctrine used to prevent injustice when a person changes their position significantly in reliance to another persons promise and that promise is not fulfilled
-No consideration is needed
Release
-When a person accepts an offer and agrees not to sue, he or she is asked to sign an agreement called a release
Unconscionable
-A court may deema contract unconscionable, or unfair when consideration is out of line
Competitive Bidding
-Laws require governments to construct public works through this process
-Rivals submit bids for a project and the firm with the lowest qualified bid wins
Goodwill
-The market value of the good reputation of a business
-THe goodwill is bought by a buyer of a business and it prevents them from opening a competing business for a period
In Pari Delicto
-Parties are said to be in Pari Delicto (in equal fault) if they both know the agreement in illegal
-The court will aid neither party
Obstruction of justice
-Any contract that interferes with the administration of justice is illegal
Ex: Protecting someone from arrest, bribing a juror
Price Fixing
-Occurs when competitors agree on certain price ranges in which they set prices
-Raises prices and discourages competition
Professional License
-A legal document stating that the holder has permission from the proper authorities to carry on a trade/profession
-Designed to protect that public from dealing with unqualified person
Public Policy
-A legal doctrine that consists of a collection of mandates, reguations, or laws established through certain political processes
-No one should get away with harming the public
Restraint of Trade
-A limitation on the full exercise of doing business with others
Restrive Covenant
-When a business owner sells a business sometimes it will include a provision called restrictive covenant
-Promise not to compete
Usury
-Charging more interest than the maximum legal interest rate
Vendor’s License
-Some states require licenses simply to raise revenue
-Agreements made with this type of person would be valid
Ex. Vendors/ Hunters
Adulterated
-If a product contains any substance that will reduce its quality or strength below minimum standards
Bait- and- Switch
- Advertising a very low price for a particular item that will likely be unavailable to the consumer and then encouraging them to buy a more expensive item
BBB
-Better Business Bureau
-A non governmental agency that hears complaints from consumers and tries to steer consumers to reliable businesses
-MISSION: to promote highly ethical relationships between businesses and the public
Caveat Emptor
“Let the buyer beware”
-SHoppers had few ways to seek compensations for damages years ago
Caveat Venditor
-“Let the seller beware”
-Today society demands manufacturers to be held responsible for foreseeable injuries to their consumers
Cease and Desist Orders
-FTC has the power to issue them
-Legally binding orders to stop a practice that would mislead the public
Consumer Product Safety Act
-Protects consumers from unreasonable risk of injury while using consumer products sold in interstate commerce
Ex. manufacturing defects, poor design
Cooling Off Rule
-Allows buyers to cancel door-to-door sales contracts within 3 days
-Applies to purchases $25 or more
-Applies to sales made at homes, offices, dorms, etc.
Fraudulent Misrepresentation
-Any statement that deceives the buyer
-Occurs when a seller misstates the facts about something important to the consumer
FTC
-Federal Trade Commission
-Promotes free and fair trade competition and regulates false advertising
Injurous
-If it contains any substance that may make it harmful to health
Misbranded
-If its labeling/packaging is false or misleading
Negative Option Rule
-Any type of sales term or condition that allows a seller to interpret the customers silence as acceptance of an offer
Product Liability
-Manufacturers/sellers responsible if a product proves to be unsafe and someone is injured
Strict Liability
-Makes manufacturers/ responsible for selling unreasonably dangerous goods
-Do not have to prove negligence
Unfair and Deceptive
-Any acts that may mislead consumers
-Deceptive false advertising occurs if a reasonable consumer would be mislead by the claim
-Vague generalities
Assignment
-Occurs when you transfer the remaining period of time in a lease to someone else
Sublesae
-When you transfer part of the term of a lease but not the remainder
-Original tenant is still responsible for rent
Bailment
-The transfer of possessions and control of personal property of one person (bailor) to another (bailee) with the intent that the property will be returned later
Constructive Eviction
-When a landlord breaches a duty under the lease you many consider the lease terminated and stop paying rent
-You may also leave the premises
Covenants
-Terms in a lease that set forth the rights and duties of a landlord or tenant
Eviction
-When a landlord deprives a tenant of the physical possession of the premises
-You can be evicted for not paying rent, damages to the premises, etc.
Holdover tenant
-A wrongdoer who no longer has any legal interest in the property
-You still have to pay rent
Implied Warranty of Habitability
-Real property offered for dwelling must be fit for human habitation
-Must be clean, properly heated, furnished with utilities, and safe
Lease
-The contract between tenant and landlord
Mislaid property
-Property that the owner has voluntarily parted with and has forgotten
-The owner of the establishment is now the caregiver
Periodic Tenancy
-Created by a lease for an indefinite period of time with payment of rent at fixed intervals
-Continues for successive periods unless a party terminates with advance notice
Quiet enjoyment
-Your right to undisturbed possession of the property
Security Deposit
Landlords often require you to pay a security deposit at the beginning of tenancy
-To secure payment of rent/repairs for damages to the property
Tenancy at Will
-An interest in real property that continues for an indefinite period of time
-No written agreement required
-Either party can terminate without notice
Tenancy for Years
-Fixed term- the right to occupy the property for a definite period of time
-At the end of period the lease ends and property returns to the lessor
Tortious bailee
-A person who wrongfully keeps stolen/lost property
Waste
-Substantial damage to the premises that significantly decreases property value
