Ch 3 Flashcards
What is judicial review?
Judicial branch can decide if the laws or actions of other two branches are constitutional
The process by which a court decides the constitutionality of legislative enactments and actions of the executive branch
What is the role of judicial system?
Interpret and apply the laws
What is jurisdiction?
The authority of a court to hear and decide a case
Must have authority of people or property involved and subject matter
How does a court have jurisdiction over person or property?
Personal jurisdiction
Authority over everything inside of its boundaries
What is in rem jurisdiction?
Jurisdiction over property within its borders
What is long arm statues?
State statue that permits a state to exercise jurisdiction over nonresidential defendants
Must have had at least minimum contacts
What area has jurisdiction over a coperation?
The state it is incorporated in, has its principle offices, and is doing business
Minimum contact if good is sold
What is an example of a court of general jurisdiction?
State trail court or federal district court
What are examples of courts with limited jurisdiction?
Probate court and bankruptcy court
Handle only certain matters
What is probate court?
State court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person’s estate
What is a bankruptcy court?
A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law
What can limit the jurisdiction?
Subject of lawsuit
Amount in controversy
Felony or misdemeanor
Trial or appeal
What is the difference between original and appellate jurisdiction?
Original is where the case is ending heard for the first time, district courts/ trial court
Appellate deal with appeals
When do federal courts have jurisdiction?
Federal questions and diversity of citizenship
What are federal questions?
A question that pertains to the U.S. Constitution, an act of congress, or a treaty and provides a basis for federal jurisdiction in a case
What is diversity of citizenship?
A basis for federal court jurisdiction over a lawsuit between citizens of different states and counties
2 requirements
Plaintiff and defendant are residents of different states
Dollar amount exceed 75,000
What is concurrent jurisdiction?
Jurisdiction when two separate courts have power to hear a case
Ex) diversity of citizenship
What is exclusive jurisdiction?
Jurisdiction that exists when a case can only be heard in a particular court or type of court
What are some things that federal courts have exclusive jurisdiction over?
Cases of federal crimes Federal antitrust law Bankruptcy Patents Copyrights Trademarks Suits against US
What are some things that states have exclusive jurisdiction over?
Divorce
Adoption
What is the sliding-scale standard?
Used to determine if jurisdiction over out of state defendant is needed
3 internet based contacts
Substantial business conducted over the internet
Some interactivity through a website
Passive advertising, ppl volunteer to read information
What is true of Internet business and international jurisdiction?
They must comply with laws in any jurisdiction where they target costumers
What is venue?
Most appropriate physical location for a trial
Geographic district in which a legal action is tried and from which the jury is selected
Where is the venue in a civil case typically?
Where the defendant resides
Where is the venue of a criminal case?
Where the crime is committed
When might the trial be moved?
When it occurs in a location where the defendant’s right to a fair trial may be impaired
What is a standing to sue?
Legal requirement that an individual must have sufficient stake in a controversy before he or she can bring a lawsuit
Guardian may take this for a minor
What is a justiciable controversy?
A controversy that is not hypothetical or academic but real and substantial
How many court systems are there?
52
One for every state, DC and federal
What is true of the state court system?
Include Trial courts of limited jurisdiction Trial courts of general jurisdiction Appellate courts State Supreme Court
Judges are either appointed or elected and terms vary
What are some courts of limited jurisdiction called?
Special inferior trial courts
Minor judiciary courts
What is a small claims court?
A special court in which parties can litigate small claims without and attorney
What do appellate courts do?
They reviewed dats from the trial, records of it, and determine if an error was made
What is a question of fact?
Deals with disputed facts in a lawsuit, not what the law is
What is a question of law?
The application of interpretation of a law
Only a judge can rule on this, not jury
What do appellate courts primarily deal with?
Questions of law
When can a ruling but he state Supreme Court be overruled by the Supreme Court?
When it is an issue of federal law
How is the federal court system conducted?
U.S. District courts and various courts of limited jurisdiction
U.S. Courts of appeals
United States Supreme Court
How do we get federal judges?
Appointed by the president and confirmed by U.S. senate
Lifetime appointment
What is true of the U.S. District courts?
Equivalent of a state trial court of general jurisdiction
94
Limited jurisdiction ones include bankruptcy courts
What is the U.S. Court of appeals?
13
12 correspond with specific areas, the 13th deals with special cases like when government is the defendant
What is true of the untied states Supreme Court?
Highest level
9 judges
Appeal court
Person must show a writ of certiorari
What is a writ of certiorari?
A writ from a higher court asking a lower court for the record to a case
What is the rule of four?
Court will not issue a writ unless at least 4 justices approve
What are petitions granted by the court?
They involve important constitutional issues or conflicting decisions by lowering courts
They do not have to explain why
What is a litigation?
The process of resolving a dispute through the court system
What is procedural law?
What determines the standards for set worming disputes in courts
What are the pleadings?
Statements by plaintiff and defendant that detail facts, charges, and defenses of a case
Complaint answer counterclaim reply
What comes first in a trial?
The playoff complaint
What is the plaintiff complaint?
The pleadings made by a plaintiff alleging wrongdoings on the part of the defendant
Intimates a lawsuit
What is included in the plaintiff’s complaint?
Facts needed to make jurisdiction
Brief summary of facts needed to show relief is required
Statement of remedy seeking
What is a process server?
The one who delivers a complaint or summons
What is a summons?
Document informing a defendant that a legal action has been commenced against them and that ey must appear in court
What is default judgment?
Judgement entered by a court against a defendant who fails to appear in court
What is an answer?
A defendant response to a plaintiffs complaint
What is a counterclaim?
Claim made by defendant in a civil lawsuit against the plaintiff
Suing them back
What is a reply?
Plaintiffs response to defendants answer and counterclaim
What’s an affirmative defense?
Can admit truth to allegations but raises new facts that may result in dismissal of action
What is the motion to dismiss?
A pleading I which a defendant admits the facts as alleged but claims to state a cause of action has no basis in law
What steps are taken to bring a case to court?
Complaint Summons Answer Counterclaim Reply Pretrial motions Discovery Request other information Pretrial conference Jury selection
What are different Pretrial motions?
Motion to dismiss
Motion for judgment on the pleadings
Motion for summary of judgment
What is motion for judgment on the pleadings?
Motion for court to decide trial solely on pleadings without a trial
Only if no facts are in dispute
What is a motion for summary judgment?
Motion requesting the court to enter a judgment without proceeding to trail. Can be based on info outside pleadings and no facts in dispute
Statements or other documents
What is discovery?
Method of opposing parties to obtain information for the trial
Deposition and interrogatories
What is deposition?
Testimony of a party to a lawsuit or a witness taken under oath before a trail
What are interrogatories?
A series of written questions for which written answers are prepared by a party to a lawsuit, usually with assistance of attorney, and then dined under oath
Directed to a party, not witness
What is e evidence?
Evidence of all computer generated or electrically recorded info
What is a Pretrial conference?
Meeting with judges and opposing attorneys to see if a verdict can be reached without trial
How does jury selection work?
Voir dire
Question perspective jurors about background, etc
What is peremptorily?
Ask someone not to be sworn in without providing a reason
What is for cause?
Ask someone not be sworn in for a reason
What occurs at the trial?
Attorneys present opening arguments Plaintiffs case preset Defendant can challenge evidence or cross examine Can ask to direct a verdict Closing arguments Judge instructs jury of charges Jury deliberates Decides on an award
What is a directed verdict?
Asking judge to make a decision without jury making kroon that other party did not provide sufficient evidence
What is a motion for judgment n.o.v?
Motion requesting court to grant judgment in favor of the party making the motion saying jury’s decision was unreasonable and erroneous
Judge will rule opposite
What is a motion for a new trial?
Motion stated trial was fundamentally flawed and a new trial is needed
How does the appeal process work?
File the appeal
Appellate review
Appeal to a higher court
What is the brief?
Written summary or statement prepared by one side to explain the case to the judge
What options does an appellate court have?
Affirm decision Reverse decision Remand, send back for further proceedings Reverse or affirm in part Modify
What system is used for electronic filing?
Case management /electronic case files
What is a docket?
Schedule of trials to be heard
What is alternate dispute resolution?
Resolution of disputes in ways other than trials
Negotiation, mediation, arbitration
What is negation?
Parties and attorneys
Settle dispute informally with or without attorneys present
What is mediation?
Settling disputes using third parties and assist in negotiation
Takes active role
What arbitration?
Settling of dispute by submitting to a disinterested third party, who renders decision
When can an arbitrator’s decision be overruled?
Of it was conducted in bad faith
If the ward violates public policy
If they exceed their own power
What is an arbitration clause?
Clause in contracts that in a dispute courts will not be used
Who provides add services?
Americans government
American arbitration association
What are online dispute resolution?
Resolution of disputes with assistance of organizations that offer dispute-resolution services via the Internet
Good for small to medium sized cases
