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BLAW 220 > Chapter 1: Law and legal Reasoning > Flashcards

Chapter 1: Law and legal Reasoning Flashcards

1
Q

Law

A

enforceable rules among / between individuals and their society.

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2
Q

laws created by our ____________ and _____________ bodies share one commonality: they establish ____________, ____________, and ____________ that are consistent with the ___________ and __________ of the society they govern.

A

legislative; judicial; rights; privliges; duties; values; beliefs

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3
Q

Liability

A

State of being responsible (liable) for something (debt etc.)

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4
Q

Businesspersons are expected to make _______________ _____________.

A

ethical decisions

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5
Q

Primary Source of Law

A

Source that establishes law on particular issue.

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6
Q

Types of Primary Source Law

A

1) U.S. constitution (& state constitutions)

2) Statutory Law (law created by legislative bodies)

3) Administrative Regulation (law set by FDA)

4) Case Law (court decisons)

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7
Q

Common Law

A

Laws set forth based on legal precedent.

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8
Q

Secondary Source of Law

A

Anything that summarizes / clarifies a primary source of law.

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9
Q

A secondary source of law might include legal ____________, law __________ published by law schools, and other legal ____________.

A

encyclopedias; reviews; journals

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10
Q

Constitutional Law

A

Body of law derived from U.S. constitution and state constitutions.

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11
Q

Constitutional Law focuses on the _______________ by which the ___________ exercises _____________.

A

principles; government; authority

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12
Q

Tenth Amendment of U.S. Constitution

A

Grants states all rights not reserved by federal govt.

(i.e. education…)

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13
Q

Each state has their own ______________, and unless it’s in direct _____________ with the ____ _________________, then it’s considered ____________ within the state’s borders.

A

constitution; conflict; U.S. Constitution; supreme

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14
Q

Statutory Law

A

Law made by federal / state legislatures

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15
Q

When a legislature passes a ____________, it’s placed in the __________ code of ___________ or the appropriate __________ code of ________.

A

statute; federal code of law; state code of law

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16
Q

Citations

A

reference a legal authority

(e.g. statute or court decision)

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17
Q

Ordinance

A

Regulations passed by municipal / county legislative body to deal w/ matters not handled by state / federal law.

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18
Q

Ordinances can’t supercede ________ __________.

A

state law.

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19
Q

Uniform law

A
  • Created & proposed by National Conference of Commisioners of Uniform State Law (NCCUSL)
  • Model law proposed to state legsilature to become statutory law.
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20
Q

Uniform Law may be accepted by ____________ ___________. But maybe the ______________ ____________ will only accept ________ of a Uniform Law to turn into statutory law, and even then the portion they take could be ______________.

A

state legislature; state legislature; part; modified

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21
Q

Uniform Commerical Code (UCC)

A
  • Uniform law that has been adopted by all 50 states!
  • Facilitated commerce betweeen states under rules governing commerical trade.
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22
Q

Administrative Law

A

Body of law created by Administrative agencies to carry out duties / responsibilities.

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23
Q

Administrative Agency

A

Federal, state, local agency created by legislature to perform specific function.

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24
Q

Administrative agencies, at a _________level, are designed to compliment and ___________ eachother. For instance a state pollution-control agency may ____________to the Environmental Protection Agency.

A

state; parallel; parallel

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25
Q

Similar to legal precedent, ____________ agency regulations take place over _____________ agency regulations

A

federal; state

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26
Q

Enabling Legislation

A

Statute created by the legislature enacts creation of an agency.

Specifies agency’s name, composition, purpose, and powers

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27
Q

Adjudication

A

Administrative law judge hears and resolves disputes about administrative agency regulations.

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28
Q

Administrative Process

A

Procedure by which adminstrative agency performs 3 basic functions:

rulemaking (legislative),
enforcement (executive),
adjudication (judicial)

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29
Q

Rulemaking

A

When an administrative agency makes new regulations or amends old ones.

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30
Q

Legislative Rules

A

rules made by Administrative agency that carry same wieght as legislatively enacted statute.

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31
Q

The Administrative Procedure Act (APA) imposes strict _______________ requirements that agencies have to follow in legislative ___________________.

A

procedural; rulemaking

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32
Q

There are 3 steps the APA requires administrative agencies to take in passing new regulation: the ___________ and ___________ period.

1) Notice proposed rulemaking: Admin. agency places new regulation on the ___________ ___________. Must allow ample time for interested _____________ to examine the proposed regulation on a ___________ ___________ in U.S. government.

2) Comment Period: Interested _____________ will make comments of ____________, ____________, or reccomend changes to the proposal to be revised for the final draft.

3) Final Rule: Once the public’s reccomendations have been taken into account, it is published on the _____________ ___________.

A

Notice; Comment; Federal Register; parties; daily publication; parties; approval; dissapproval; Federal Register

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33
Q

Interpretive Rules

A

Indicate how admin. agencies plan to interpret their statutory authority.

34
Q

Administrative Law Judge

A

Presides over administrative agency hearings between charged party and agency.

35
Q

Case Law

A

Body of law derived from court decisions

Interprets statutes, administrative regulations, constitutional provisions

and covers all areas of law not covered by statutory or administrative law.

36
Q

Precedent

A

court decision used in deciding subsequent decisions w/ similar legal principles.

37
Q

Stare Decisis

A

“Let the decision stand.”

judges obligated to refer to former decision w/ similar case facts / principles.

38
Q

Jurisdiction

A

geographical area in which judges have power to apply the law.

39
Q

Reverse

A

To cancel decision made by lower court.

40
Q

Remand

A

To reverse lower court decision, and send case back to lower court with instructions for a new proceeding.

41
Q

Voire Dire

A

“To see, to speak”

Questioning by Judge and attorneys to observe potential attitudes, leanings, and predispositions of jury.

42
Q

lower rank courts are expected to follow __________ ___________.

A

stare decisis.

43
Q

Two aspects of Stare Decisis

A

1) Higher court should NOT overturn legal precedent unless they have strong reason to do so.

2) Decisions made by higher courts are binding to lower courts.

44
Q

Controlling Precedents

A

Precedents that MUST be followed within a jurisdiction.

45
Q

Binding Authority

A

any source of law a court must follow in deciding a case.

46
Q

Cases of First Impression

A

Cases being decided when legal precedent doesn’t exist.

47
Q

Persuasive Authority

A

Any source of law that courts can look to for guidance but is NOT binding.

48
Q

Legal Reasoning

A

Judge harmonizes their opinion w/ legal precedent

49
Q

IRAC method of legal reasoning

A

I(ssue)
R(ule)
A(pplication)
C(onclusion)

50
Q

Plaintiff

A

Party filing lawsuit

51
Q

Defendant

A

Party being sued

52
Q

Issue: you must understand the key ________ and _________ at hand in a case. Know the identities of the ___________ and ___________. Based on the case, identify the ___________ issue at hand.

A

facts; issues; plaintiff; defendant; legal

53
Q

Rule: What rule of _______ applies in your case? It could be _________ or ________ statutes, could be __________ admin. regulations. Oftentimes, more than _______ rule of law will apply to a case.

A

law; state; federal; federal; one

54
Q

Allege

A

to claim / charge

55
Q

Application: How does the rule of law apply to the _____________ and _________ of the case? No two cases are ever identical in facts. Judges and lawyers will try to find a ____________ on ___________ in which the facts of the case are as similar as possible to the current case in consideration.

A

circumstances; facts; case; point;

56
Q

Case on Point

A

Case as similar as possible in facts to the one in consideration.

57
Q

Conclusion: What conclusion should be drawn? Particularly easy step if the 3 subsequent steps were followed ____________. Based on the ___________ of the case, and actions ____________ and not ____________ by the parties involved, the judge should be able to ___________ a ______________.

A

carefully; facts; taken; taken; render; decision

58
Q

Remedy

A

relief given to innocent party as compensation for violation of rights.

59
Q

Equity

A

branch of law that provides remedy when no remedy is available.

60
Q

There is a ________________ difference between ___________ and ___________ remedies. For instance, legal remedies (Action at _______ )provides _____________ damages and __________, whereas equitable remedies (Action in _________) provides “order of ___________” (meaning person must follow through with ____________ agreement), “recission” (cancellation of ______________ agreement) etc…

A

SIGNIFCANT; legal; equitable; Law; monetary; property; Equity; performance; contractual; contractual

61
Q

Equitable Maxims

A

Propositions / Principles fairness (equity)

62
Q

Jurisprudence

A

Study of Law

63
Q

Natural Law Theory

A

Belief that legal system should reflect universal, moral, ethical principles inherent in human nature.

64
Q

Positive Law

A

National law

Written law of a society at a certain point in time.

65
Q

Legal Positivism

A

There is no higher law than a nations positive law.

66
Q

The Legal positivist school of thought suggest humans have ____ rights, and they don’t have _________ until they are created. So whether or not a law is morally “_________” or “_______” is irrelevant. The law is the law, and must be followed until it’s ______________ under the proper legislative process.

A

no; rights; good; bad; changed

67
Q

Historical School

A

Believes law should look to historical standards for guidance to make decisions.

68
Q

Legal Realism

A

Believes…
- Law is one of several institutions that should be taken into account when deciding case.

  • Law should also account for social and economic circumstances.
69
Q

Substantive Law

A

Defines, describes, regulates, and creates legal rights & obligations

70
Q

Procedural Law

A

creates way to enforce substantive law

71
Q

Private Law

A

governs transacitons between persons

72
Q

Public Law

A

governs transactions between persons & government

73
Q

Cyber Law

A

governs transactions that take place via internet

74
Q

Civil Law

A

defines & enforces public and private rights

75
Q

Civil Law Objective

A
  • to pay monetary / compensatory damages to injured party.
76
Q

Criminal Law

A

defines (in penal codes) & punishes wrongful acts against public.

77
Q

Criminal Law Objective

A
  • to punish wrongdoer & deter further criminal action
78
Q

Common law system is based on __________ _________________, whereas the Civil Law system is based on ____________ ________.

A

case precedent; statutory law

79
Q

National Law

A

Law that pertains to a particular nation.

80
Q

International Law

A

Law that governs relations between nations.

BLAW 220 (17 decks)

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