Chapter 1: Law and legal Reasoning Flashcards
Law
enforceable rules among / between individuals and their society.
laws created by our ____________ and _____________ bodies share one commonality: they establish ____________, ____________, and ____________ that are consistent with the ___________ and __________ of the society they govern.
legislative; judicial; rights; privliges; duties; values; beliefs
Liability
State of being responsible (liable) for something (debt etc.)
Businesspersons are expected to make _______________ _____________.
ethical decisions
Primary Source of Law
Source that establishes law on particular issue.
Types of Primary Source Law
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)
Common Law
Laws set forth based on legal precedent.
Secondary Source of Law
Anything that summarizes / clarifies a primary source of law.
A secondary source of law might include legal ____________, law __________ published by law schools, and other legal ____________.
encyclopedias; reviews; journals
Constitutional Law
Body of law derived from U.S. constitution and state constitutions.
Constitutional Law focuses on the _______________ by which the ___________ exercises _____________.
principles; government; authority
Tenth Amendment of U.S. Constitution
Grants states all rights not reserved by federal govt.
(i.e. education…)
Each state has their own ______________, and unless it’s in direct _____________ with the ____ _________________, then it’s considered ____________ within the state’s borders.
constitution; conflict; U.S. Constitution; supreme
Statutory Law
Law made by federal / state legislatures
When a legislature passes a ____________, it’s placed in the __________ code of ___________ or the appropriate __________ code of ________.
statute; federal code of law; state code of law
Citations
reference a legal authority
(e.g. statute or court decision)
Ordinance
Regulations passed by municipal / county legislative body to deal w/ matters not handled by state / federal law.
Ordinances can’t supercede ________ __________.
state law.
Uniform law
- Created & proposed by National Conference of Commisioners of Uniform State Law (NCCUSL)
- Model law proposed to state legsilature to become statutory law.
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 ______________.
state legislature; state legislature; part; modified
Uniform Commerical Code (UCC)
- Uniform law that has been adopted by all 50 states!
- Facilitated commerce betweeen states under rules governing commerical trade.
Administrative Law
Body of law created by Administrative agencies to carry out duties / responsibilities.
Administrative Agency
Federal, state, local agency created by legislature to perform specific function.
Administrative agencies, at a _________level, are designed to compliment and ___________ eachother. For instance a state pollution-control agency may ____________to the Environmental Protection Agency.
state; parallel; parallel
Similar to legal precedent, ____________ agency regulations take place over _____________ agency regulations
federal; state
Enabling Legislation
Statute created by the legislature enacts creation of an agency.
Specifies agency’s name, composition, purpose, and powers
Adjudication
Administrative law judge hears and resolves disputes about administrative agency regulations.
Administrative Process
Procedure by which adminstrative agency performs 3 basic functions:
rulemaking (legislative),
enforcement (executive),
adjudication (judicial)
Rulemaking
When an administrative agency makes new regulations or amends old ones.
Legislative Rules
rules made by Administrative agency that carry same wieght as legislatively enacted statute.
The Administrative Procedure Act (APA) imposes strict _______________ requirements that agencies have to follow in legislative ___________________.
procedural; rulemaking
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 _____________ ___________.
Notice; Comment; Federal Register; parties; daily publication; parties; approval; dissapproval; Federal Register
Interpretive Rules
Indicate how admin. agencies plan to interpret their statutory authority.
Administrative Law Judge
Presides over administrative agency hearings between charged party and agency.
Case Law
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.
Precedent
court decision used in deciding subsequent decisions w/ similar legal principles.
Stare Decisis
“Let the decision stand.”
judges obligated to refer to former decision w/ similar case facts / principles.
Jurisdiction
geographical area in which judges have power to apply the law.
Reverse
To cancel decision made by lower court.
Remand
To reverse lower court decision, and send case back to lower court with instructions for a new proceeding.
Voire Dire
“To see, to speak”
Questioning by Judge and attorneys to observe potential attitudes, leanings, and predispositions of jury.
lower rank courts are expected to follow __________ ___________.
stare decisis.
Two aspects of Stare Decisis
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.
Controlling Precedents
Precedents that MUST be followed within a jurisdiction.
Binding Authority
any source of law a court must follow in deciding a case.
Cases of First Impression
Cases being decided when legal precedent doesn’t exist.
Persuasive Authority
Any source of law that courts can look to for guidance but is NOT binding.
Legal Reasoning
Judge harmonizes their opinion w/ legal precedent
IRAC method of legal reasoning
I(ssue)
R(ule)
A(pplication)
C(onclusion)
Plaintiff
Party filing lawsuit
Defendant
Party being sued
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.
facts; issues; plaintiff; defendant; legal
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.
law; state; federal; federal; one
Allege
to claim / charge
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.
circumstances; facts; case; point;
Case on Point
Case as similar as possible in facts to the one in consideration.
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 ______________.
carefully; facts; taken; taken; render; decision
Remedy
relief given to innocent party as compensation for violation of rights.
Equity
branch of law that provides remedy when no remedy is available.
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…
SIGNIFCANT; legal; equitable; Law; monetary; property; Equity; performance; contractual; contractual
Equitable Maxims
Propositions / Principles fairness (equity)
Jurisprudence
Study of Law
Natural Law Theory
Belief that legal system should reflect universal, moral, ethical principles inherent in human nature.
Positive Law
National law
Written law of a society at a certain point in time.
Legal Positivism
There is no higher law than a nations positive law.
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.
no; rights; good; bad; changed
Historical School
Believes law should look to historical standards for guidance to make decisions.
Legal Realism
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.
Substantive Law
Defines, describes, regulates, and creates legal rights & obligations
Procedural Law
creates way to enforce substantive law
Private Law
governs transacitons between persons
Public Law
governs transactions between persons & government
Cyber Law
governs transactions that take place via internet
Civil Law
defines & enforces public and private rights
Civil Law Objective
- to pay monetary / compensatory damages to injured party.
Criminal Law
defines (in penal codes) & punishes wrongful acts against public.
Criminal Law Objective
- to punish wrongdoer & deter further criminal action
Common law system is based on __________ _________________, whereas the Civil Law system is based on ____________ ________.
case precedent; statutory law
National Law
Law that pertains to a particular nation.
International Law
Law that governs relations between nations.
