Blaw 2

Question 1

Definitions of Law

Answer 1

1. There are many definitions of law, depending on the content and subject matter involved.2. In some areas, the law is a command from the sovereign.3. Law is a method of controlling society and implementing change.4. Law consists of the principles used by courts to decide controversies.

Question 2

Classifications of Legal Subjects

Answer 2

1. One way to classify laws is by their purpose–substantive versus procedural.2. Public law versus private law is another common way to distinguish between classifications of laws.

Question 3

Court Decisions

Answer 3

1. Reliance on decided cases as precedents for present controversies is the foundation of our common-law system.2. Common law must be contrasted with the civil-law system, which relies more on statutory law than on court decisions as a primary source of law.

Question 4

Basic Constitutional Principles

Answer 4

1. Constitutional principles provide the foundation of our legal system.2. One of the most important constitutional principles is the doctrine of judicial review.

Question 5

Legislation

Answer 5

1. Legislation in the form of statutes, codes, and ordinances provides much of our body of law.2. Courts have a major role to play in interpreting legislation.

Question 6

Uniform State Laws

Answer 6

1. Uniform state laws such as the Uniform Commercial Code are an attempt to provide uniformity in business transactions throughout the country.

Question 7

Stare Decisis

Answer 7

1. This means to stand by decisions and not disturb what is settled.2. The goal is certainty and predictability.

Question 8

Problems Inherent in Case Law

Answer 8

1. The volume of cases makes legal research difficult.2. There are often conflicting precedents that are difficult to apply.3. Precedent must be distinguished from mere dicta.

Question 9

Rejection of Precedent

Answer 9

1. Case law may be changed if conditions change or its reasoning is no longer sound.2. Precedent is given greater weight in private law than in cases involving public law issues.

Question 10

Conflict of Laws

Answer 10

1. Conflict of laws principles determine the appropriate statutes and case law to be used in litigation involving more than one jurisdiction.2. A court in one forum may use the substantive law of another to decide a case.

Question 11

Jurisprudence

Answer 11

1. Jurisprudential schools capture how individuals think about law and its application.

Question 12

Ethical Conduct

Answer 12

1. Along with legal and economic consequences, ethics influences behavior within the business community.2. Some ethical lapses result in sanctions while others do not.

Question 13

Interrelationship Between Law and Ethics

Answer 13

1. Ethical standards are frequently enacted into law or used in court decisions.2. Ethical principles usually go beyond the law.

Question 14

Trial Judges

Answer 14

1. Judges conduct the trial. They decide questions of procedure and instruct the jury on the law applicable to the issues to be decided by the jury.2. Judges supply the law applicable to the facts.3. Judges find the facts if there is no jury.

Question 15

Reviewing Court Judges and Justices

Answer 15

1. Judges of intermediate reviewing courts and justices of final reviewing courts decide cases on appeal. The questions to be decided are questions of law.2. Reviewing courts require more legal scholarship of the reviewing judges and justices than that typically required of the trial judges.

Question 16

The Jury

Answer 16

1. The jury function is to decide disputed questions of fact.2. A jury may consist of as few as six persons.3. Less than unanimous verdicts are possible with twelve-person juries.4. Excuses from jury duty are more difficult to obtain today.

Question 17

State Structure

Answer 17

1. Each state has a trial court of general jurisdiction and inferior courts of limited jurisdiction.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.

Question 18

Federal Structure

Answer 18

1. The Constitution created the Supreme Court.2. Congress has created thirteen courts of appeals and at least one district court in each state.2. Congress has created thirteen courts of appeals and at least one district court in each state.

Question 19

Federal District Courts

Answer 19

1. Federal courts have limited jurisdiction. They hear cases based on federal laws (federal question cases) and cases involving diversity of citizenship.2. Diversity of citizenship cases have a jurisdictional minimum of more than $75,000.3. For diversity of citizenship purposes, a corporation is a citizen of two states?the state of incorporation and the state of its principal place of business.

Question 20

The Law in Federal Courts

Answer 20

1. Each state has a trial court of general jurisdiction and inferior courts of limited jurisdiction.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. Federal question cases are decided using federal substantive law.3. A federal court in a diversity of citizenship case uses the substantive law of the state in which it sits to decide such a case.

Question 21

Federal Reviewing Courts

Answer 21

1. Courts of appeals decisions are usually final.2. Most cases in the Supreme Court are there as the result of granting a petition for a writ of certiorari.

Question 22

Basic Distinction

Answer 22

1. Historically, courts of law handled cases involving claims for money damages.2. Courts of equity or chancery were created where the remedy at law (money damages) was inadequate–for example, suits seeking an injunction or dissolution of a business.

Question 23

Equitable Procedures

Answer 23

1. There is usually no right to a trial by jury.2. Sometimes a special appointee, known as a master in chancery, assists with the fact-finding.3. The decision is called a decree.4. A person may be jailed for violating a decree.5. Courts of equity use maxims instead of rules of law to decide cases.6. Use of maxims allows courts to achieve justice.

Question 24

Parties

Answer 24

1. The names used to describe the parties in litigation vary depending on the type of lawsuit and the stage of the litigation.2. Cases on appeal are usually titled in the name of the appellant versus the appellee (respondent).

Question 25

Standing to Sue

Answer 25

1. A plaintiff must have standing to sue.2. Standing requires that the plaintiff have an actual stake in the controversy such that all issues will be adequately raised.3. One person often brings suit on behalf of a class.

Question 26

Jurisdiction

Answer 26

1. To render a binding decision, a court must have jurisdiction over the subject matter of the litigation and over the parties.2. Jurisdiction over the defendant is usually obtained by the service of a summons. In some cases, jurisdiction may be obtained by publishing a notice in the newspaper.

Question 27

Long-Arm Statutes

Answer 27

1. A summons may be served beyond the borders of the state if the state has a long-arm statute. This service is not a denial of due process if the defendant has sufficient contact with the state issuing the summons such that requiring him or her to defend the lawsuit does not offend our traditional notions of fair play and substantial justice.2. A plaintiff may file a lawsuit in a state without minimum contact since the plaintiff is voluntarily submitting to the jurisdiction of the court.

Question 28

Venue

Answer 28

1. Jurisdiction is the power to hear a case. The term venue is used to describe the appropriate court among all those with jurisdiction to hear the case.

Question 29

Pleadings

Answer 29

1. The term pleadings is used to describe papers filed with the court by the parties to create the issues for trial.2. The plaintiff makes allegations in a complaint, and the defendant answers the complaint by admitting or denying each allegation of the complaint.3. The answer may contain counterclaims of the defendant, and in some states the plaintiff must file a reply to all new matters raised in the answer.

Question 30

Discovery Procedures

Answer 30

1. During the pleading stage and thereafter, the law has several techniques that the parties use to discover facts known by the other.2. These techniques include the taking of depositions, the furnishing of copies of documents and photographs, serving interrogatories, and completing compulsory physicalexaminations.3. The purpose of discovery is to encourage settlement and to take the surprise element out of litigation.4. At the close of discovery, the parties and the judge meet at a pretrial conference to finish narrowing the issues for trial and to settle the case, if possible.

Question 31

Decisions Prior to Trial

Answer 31

1. If during the pleading stage it appears that there is no material fact in dispute, then there is no need for a trial.2. The court will decide the questions of law raised by the pleadings and other documents on file.3. This decision may be a judgment on the pleadings, or it may be a summary judgment.

Question 32

Proof

Answer 32

1. In selecting the jury, each party is entitled to challenge any potential juror for cause.2. In addition, each party is given a specified number of peremptory challenges to reject potential jurors without giving a reason.3. The parties attempt to prove their factual contentions by introducing evidence in open court. Evidence is presented through questioning of witnesses, with the opposing party being given the right of cross-examination.

Question 33

Burdens of Proof

Answer 33

1. The term burden of proof is used to describe the party that is required to come forward with evidence on a certain point. It is also used to describe the party with the burden of persuasion.2. The law imposes three levels in satisfying the burden of persuasion. In criminal cases, the burden is beyond a reasonable doubt. In most civil cases, the burden is by a preponderance of greater weight of the evidence. In some special situations, there is a burden between these other two that is known as the clear and convincing proof standard.

Question 34

Motions During Trial

Answer 34

1. At the close of the plaintiff ‘s case, a defendant will ordinarily make a motion for a directed verdict.2. The court will grant this motion and order the jury to return a verdict for the defendant if the evidence considered in the light most favorable to the plaintiff will not support a verdict for the plaintiff.3. The motion will be denied if there is any evidence to support each allegation of the complaint.4. In cases tried without a jury, either party may move for a finding in his or her favor if the result is not in doubt.

Question 35

Jury Instructions

Answer 35

1. After the parties have introduced all their evidence, the court instructs the jury on the law applicable to the case.2. Jury instructions tell the jury that if it finds certain facts, then it should reach a certain result.

Question 36

Verdicts and Judgments

Answer 36

1. The decision of a jury is known as a verdict.2. The final decision of the court, based on the verdict, is known as a judgment.

Question 37

Post-Trial Motions

Answer 37

1. The losing party before the trial judge ordinarily files a post-trial motion. In this post trial motion, the losing party seeks either a new trial or a judgment in its favor notwithstanding the verdict.2. It is from the ruling on this post-trial motion that the losing party appeals.

Question 38

Appeals

Answer 38

1. Appeals are costly and time-consuming. The party must obtain a transcript of the proceedings before the trial court and excerpt therefrom the matters to be raised on appeal. A brief must be prepared containing the points to be considered by the reviewingcourt and a party?s legal authorities in support of the appeal.2. The issues before the reviewing court are essentially questions of law, and great deference is given the findings of fact at the trial level.

Question 39

Reasons to Settle

Answer 39

1. Most disputes in our society are settled without resort to litigation.2. There are both personal and economic incentives to settle business-related disputes.3. A major function of lawyers is to negotiate a settlement of controversies.

Question 40

Mediation

Answer 40

1. Mediation is a process by which a third party assists in reaching a compromise of a dispute.2. The National Mediation and Conciliation Service is available to mediate labor disputes.

Question 41

Advantages

Answer 41

1. Arbitration is the submission to a person or persons other than a court for a final binding decision of a controversy.2. Arbitration is less expensive than litigation. It generally takes far less time and allows the parties to remain more amicable than does litigation.

Question 42

Common-Law Arbitration

Answer 42

1. Such proceedings were based on an agreement of the parties that was revocable until the award.2. Agreements to arbitrate future disputes were not enforceable.

Question 43

Types of Arbitration Systems

Answer 43

1. Most states have comprehensive arbitration statutes that encourage arbitration.2. Agreements that comply with the statute are enforced by courts.

Question 44

Arbitration Statutes

Answer 44

1. Most statutes require a written agreement to arbitrate.2. Submission is usually required within six months of the dispute.

Question 45

Submission

Answer 45

3. Submission may result from an agreement to arbitrate all disputes that may arise in the future or from an agreement to arbitrate a particular dispute.

Question 46

The Award

Answer 46

1. The decision in an arbitration is known as an award. Awards may be judicially enforced.2. If an award is within the power of the submission, a court will not change it because of errors of fact or errors of law.

Question 47

Procedures in Arbitration Hearings

Answer 47

1. The parties are given notice of the time and place of the hearing.2. The proceedings are less formal than a trial, and the arbitrators need not follow strict rules of evidence.

Question 48

Judicial Procedures in Arbitration

Answer 48

1. Litigation is often necessary to enforce an award, which is treated as if it were a judgment of a court.2. An agreement to arbitrate may also be ordered enforced by courts.3. There are a few grounds for challenging an award in court.

Question 49

Reasons to Settle

Answer 49

1. Most disputes in our society are settled without resort to litigation.2. There are both personal and economic incentives to settle business-related disputes.3. A major function of lawyers is to negotiate a settlement of controversies.

Question 50

Mediation

Answer 50

1. Mediation is a process by which a third party assists in reaching a compromise of a dispute.2. The National Mediation and Conciliation Service is available to mediate labor disputes.

Question 51

Advantages

Answer 51

1. Arbitration is the submission to a person or persons other than a court for a final binding decision of a controversy.2. Arbitration is less expensive than litigation. It generally takes far less time and allows the parties to remain more amicable than does litigation.

Question 52

Common-Law Arbitration

Answer 52

1. Such proceedings were based on an agreement of the parties that was revocable until the award.2. Agreements to arbitrate future disputes were not enforceable.

Question 53

Types of Arbitration Systems

Answer 53

1. Most states have comprehensive arbitration statutes that encourage arbitration.2. Agreements that comply with the statute are enforced by courts.

Question 54

Arbitration Statutes

Answer 54

1. Most statutes require a written agreement to arbitrate.2. Submission is usually required within six months of the dispute.

Question 55

Submission

Answer 55

1. The term submission is used to describe the action of referring an issue to arbitration.2. The submission governs the duties and powers of the arbitrators.3. Submission may result from an agreement to arbitrate all disputes that may arise in the future or from an agreement to arbitrate a particular dispute.

Question 56

The Award

Answer 56

1. The decision in an arbitration is known as an award. Awards may be judicially enforced.2. If an award is within the power of the submission, a court will not change it because of errors of fact or errors of law.

Question 57

Procedures in Arbitration Hearings

Answer 57

1. The parties are given notice of the time and place of the hearing.2. The proceedings are less formal than a trial, and the arbitrators need not follow strict rules of evidence.

Question 58

Judicial Procedures in Arbitration

Answer 58

1. Litigation is often necessary to enforce an award, which is treated as if it were a judgment of a court.2. An agreement to arbitrate may also be ordered enforced by courts.3. There are a few grounds for challenging an award in court.

Question 59

Terminology

Answer 59

1. Criminal conduct is either wrongful per se (malum per se) or declared wrongful by a governing body (malum prohibition).2. A criminal proceeding is called a prosecution.3. A grand jury may declare that there is sufficient evidence to warrant a trial by indicting a defendant with a true bill. Otherwise, the grand jury returns a no true bill, and no trial4. Some crimes (such as larceny, robbery, and burglary) have specific meaning associated with their names. Other crimes, known as lesser included defenses, are part of another crime.5. The standard of proof that a prosecutor must meet for a criminal conviction is called proof beyond a reasonable doubt.2. A criminal proceeding is called a prosecution.3. A grand jury may declare that there is sufficient evidence to warrant a trial by indicting a defendant with a true bill. Otherwise, the grand jury returns a no true bill, and no trial4. Some crimes (such as larceny, robbery, and burglary) have specific meaning associated with their names. Other crimes, known as lesser included defenses, are part of another crime.5. The standard of proof that a prosecutor must meet for a criminal conviction is called proof beyond a reasonable doubt.

Question 60

Classifications of Crimes

Answer 60

1. Crimes typically are classified as treason, felonies, and misdemeanors.2. Some minor crimes are called petty offenses or public torts.Administrative Crimes 1. Legislative bodies allow regulatory agencies to adopt rules, a violation of which may be punished as a crime.2. Generally, agencies will not conduct trials. Exceptions for hearings do exist when the wrongful activity involves minor penalties being invoked.

Question 61

White-Collar Crimes

Answer 61

1. White-collar crimes are the result of guile, deceit, or wrongful conduct, such as price fixing or insider trading.2. The trend is toward harsher punishment for such crimes.

Question 62

Damage Suits

Answer 62

1. Many statutes today authorize suits for triple damages by the victims of white-collar crime.2. RICO cases are brought against many business specialists who have used the telephone or the mails to defraud others.

Question 63

Act and Intent

Answer 63

1. A crime is a combination of act and intent.2. Some crimes require a specific intent, while others require only a general intent.3. In a few instances, conduct is criminal without intent, and doing the act is all that is required.

Question 64

Capacity

Answer 64

1. Certain ages determine whether a person has the mental capacity to commit a crime.2. The criminal law has special rules and procedures for handling crimes committed by juveniles. These cases are handled in special courts to rehabilitate and deter further criminal conduct by those under age.

Question 65

Corporate Liability

Answer 65

1. Corporations may be held criminally liable for the acts of their directors, officers, and important managerial agents.2. In addition to vicarious liability, corporations may be punished for strict liability crimes.

Question 66

Defenses to Criminal Prosecutions

Answer 66

1. There are various defenses that may be used by one accused of crime to avoid liability.2. Some of these defenses, such as insanity, are under challenge and are in the process of change.

Question 67

Fourth Amendment

Answer 67

1. The Fourth Amendment protects those accused of crime from having evidence illegally obtained.2. If evidence is illegally obtained, the exclusionary rule prevents its use at trial.3. Evidence may be illegally obtained, even though a search warrant is used, if the warrant was improperly issued.4. In recent years the courts have narrowed the meaning of the Fourth Amendment. For example, evidence obtained by electronic surveillance is not an illegal search and seizure.5. There is a good-faith exception to the exclusionary rule.

Question 68

Fifth Amendment

Answer 68

1. The Fifth Amendment requires indictment by a grand jury for capital offenses and infamous crimes.2. The Fifth Amendment provision on double jeopardy protects against a person’s being tried twice for the same offense.3. The Fifth Amendment protection against compulsory self-incrimination is personal to the accused. It does not prevent others from testifying or documents in the hands of others from being used as evidence.

Question 69

Sixth Amendment

Answer 69

1. The Sixth Amendment provides a criminal defendant with the right to a speedy and public jury trial.2. The Sixth Amendment also guarantees a criminal defendant the right to a competent attorney.

Question 70

Eighth Amendment

Answer 70

1. The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.2. The death penalty may be imposed if subject to stringent safeguards by the courts.

Question 71

Damages

Answer 71

1. The theory of damages in tort liability is that the victim will be paid a sum of money that will put a person in as good a position as the person would have been in had the tort not occurred.2. Compensatory damages include out-of-pocket losses plus pain and suffering, decreased life expectancy, and loss of life or limb.3. Punitive damages are awarded in some cases to punish the wrongdoer and to deter wrongful conduct.

Question 72

Persons Liable

Answer 72

1. Employers have liability for the torts of their employees if the employee is acting within the scope of employment.2. If two or more persons commit a tort, they are jointly and severally liable.3. A child may have tort liability after reaching a certain age.4. Parents are generally not liable for the torts of their children unless the child is an agent or servant, or there is a special statute imposing liability.

Question 73

Interference with Personal Freedom

Answer 73

1. These torts include assault, battery, and false imprisonment.2. The tort of inflicting mental distress is of growing importance. It is based on ‘outrageous’ or ?reckless? conduct.

Question 74

Interference with Property Rights

Answer 74

1. Trespass may occur as to both real and personal property. A trespass may be innocent or willful.2. When a conversion of personal property occurs, the wrongdoer has liability for the value of the goods.3. A nuisance is the unreasonable use of one’s property that causes injury to another. A nuisance may be enjoined or may result in dollar damages to the victim.

Question 75

INTERFERENCE WITH ECONOMIC RELATIONS

Answer 75

1. Interference with commercial or economic relations includes four business torts: disparagement, interference with contractual relations, interference with prospective advantage, and wrongful appropriation of business interests.2. Disparagement is a false communication about a product or business.3. Interference with contractual relations usually takes the form of inducing a breach of contract.4. Interference with prospective or potential advantage is considered a tort, to protect the expectancies of future contractual relations, including the prospect of obtaining employment, employees, or customers.5. It is a tort to interfere with another?s copyright, patent, trademark, or goodwill.

Question 76

WRONGFUL COMMUNICATIONS

Answer 76

1. Defamation consists of the twin torts of libel and slander. Libel is generally written; slander is oral. Tort liability for defamation exists to protect a person?s name and reputation.2. The right of privacy is the right to be let alone. It involves wrongful intrusion into one?s private life in such a manner as to outrage or to cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

Question 77

Duty

Answer 77

1. The five basic elements of negligence are (1) a duty owed by one person to another and (2) a breach of that duty (3) that was the actual cause and (4) that was the proximate cause of (5) an injury.2. The duty owed by one person to another varies depending on the relationship of the parties.

Question 78

Due Care

Answer 78

1. Negligence is the failure to exercise due care. Due care is reasonable conduct under the circumstances.2. The doctrine of res ipsa loquitur creates a presumption of negligence. Reasonable-Person Test 1. The standard for judging whether or not a duty has been breached is to judge theconduct against the standards of the reasonable person.

Question 79

Degrees of Negligence

Answer 79

1. The greater the risk, the higher the duty owed to others.2. A common carrier is an insurer of goods and owes passengers the highest degree of care.3. Slight negligence is the failure to use great care.4. Ordinary negligence is the failure to use ordinary care.5. Gross negligence is the failure to use slight care.

Question 80

Malpractice

Answer 80

1. Malpractice by professional persons is the failure to exercise that degree of care and caution that the profession calls for. It is the failure to meet the standards of the profession.

Question 81

Special Doctrines that Show Negligence

Answer 81

1. The doctrine of res ipsa loquitur creates a presumption of negligence.2. Negligence per se occurs where a person violates a law or ordinance and damage results.

Question 82

Actual Cause

Answer 82

1. Actual cause means that there is a connection between the breach of duty and injury.

Question 83

Proximate Cause

Answer 83

1. Proximate cause is based on the foreseeability of the injury as a result of unreasonable behavior.

Question 84

Defenses to Negligence

Answer 84

1. Plaintiff ‘s contribution may be a total bar or simply used to proportionately reduce any damage award.2. Assumption of the risk occurs where plaintiff voluntarily assumes a known risk of harm.

Question 85

Theory

Answer 85

1. In strict liability cases, the focus of attention is on the product.2. A manufacturer selling a defective product in a defective condition that is unreasonably dangerous to the user or his or her property is liable for physical injuries caused by the defect.3. The theory may apply to leases as well as sales.

Question 86

Recent Trends in Product Liability

Answer 86

1. The Restatement (Third) does not impose upon the plaintiff the requirement to show that a manufacturing defect was unreasonably dangerous.

Question 87

Defenses

Answer 87

1. Contributory negligence is not a defense to a suit based on the theory of strict tort liability.2. Comparative fault is often used to reduce verdicts in strict products liability cases.3. Courts normally reject state-of-the-art defenses.