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Paralegal Certification > Chapter 7: General Law > Flashcards

Chapter 7: General Law Flashcards

1
Q

Definition of “Law”

A

a system of enforceable rules adopted by a controlling body to govern the conduct of society

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2
Q

Articles of Confederation

A

American legal system prior to the constitutional convention in 1787

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3
Q

Constitution

A

divided government into legislative, executive, and judicial branches to ensure separation of powers

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4
Q

Bill of Rights

A

added as an afterthought to preserve basic rights of individuals

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5
Q

Natural Law

A

philosophy that emphasizes the individual’s right to make personal choices as long as those choices do not interfere with another’s right to make personal choices

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6
Q

Legal Positivism

A

emphasizes the institutional rule of law, distinguishes law from morality

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7
Q

Sociological Jurisprudence

A

philosophy that emphasizes society’s values as the measuring stick for right and wrong. Con of this philosophy is that the legal system moves too slowly to respond to the needed social change

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8
Q

Legal Realism

A

philosophy that determines what reasonable people would do in a given situation and then sanctions that conduct

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9
Q

Classifications of Law

A

all legal rules can be grouped in these broad categories

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10
Q

T/F: All law can be classified as either criminal or civil

A

True

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11
Q

Substantive Law

A

Legal rule which creates or defines rights and duties. For every right, there is a corresponding duty

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12
Q

T/F: Is the following an example of substantive law? Bob owns land. Bob has a right to own land. Therefore, bob’s right to own land imposes a duty for the rest of the world to not enter his land without his permission

A

True

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13
Q

Procedural Law

A

also known as adjective law; complements substantive law by providing the mechanisms to enforce substantive rights and duties

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14
Q

Examples of Procedural Law:

A

Federal Rules of Criminal Procedure, Federal Rules of Evidence, Federal Rules of Civil Procedure, Federal Rules of Appellate procedure

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15
Q

Public Law

A

rules which involve the relationship of government to society as a whole

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16
Q

Examples of public law

A

constitutional law, administrative law, criminal law

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17
Q

Private Law

A

rules which involve the relationship of private individuals to each other

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18
Q

Criminal Law

A

classified as 1) treason, 2) felonies, or 3) misdemeanors. criminal law consists of rules designed to protect society by providing a number of minimum standards of conduct. Penal sanctions applied to those who fail to observe minimum measures

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19
Q

Treason

A

attempt to overthrow the government. Defined by Article III, § 3 of the U.S. constitution

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20
Q

Felony

A

crime for which maximum possible punishment is either death or imprisonment for over a year. classification focuses on maximum that could be imposed, not will be imposed

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21
Q

Misdemeanor

A

crime for which the maximum possible punishment is either a fine or imprisonment for less than one year

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22
Q

Civil Law

A

legal rules which focus on the rights and duties of individuals in relation to each other

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23
Q

Difference between civil and criminal law

A

criminal law imposes penal sanctions, while civil law sanctions are remedial to enforce a right

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24
Q

Basis of American Civil Law

A

1) basis of the right or duty to be enforced, either through tort or contract, and 2) the type of remedy sought, whether legal or equitable

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25
Q

Tort

A

wrongful act (other than breach of contract) for which the law provides remedy, usually monetarily

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26
Q

T/F: Examples of torts include: assault, battery, conversion, false imprisonment, negligence, and tresspass

A

True. Civil suits can be pursued for torts, as well as criminal

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27
Q

A tort may be…

A

1) Intentional (assault, battery, conversion, trespass), 2) unintentional (negligence), or 3) strict liability (defective products)

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28
Q

T/F: In a civil tort case, the standard of proof would be a “preponderance of the evidence” that the defendant is responsible

A

True

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29
Q

T/F: In a criminal case, the standard of proof would be a “preponderance of the evidence” that the defendant is responsible

A

False. Criminal cases require that the standard of proof is “beyond a reasonable doubt”

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30
Q

T/F: Two cases are tried in both civil and criminal courts. If the civil court determines that the defendant is responsible, the outcome of this case would have a bearing on the criminal case regarding the same issue

A

False; both cases are tried independently of one another; the outcome of either criminal or civil cases does not influence the outcome of the other

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31
Q

Contact

A

an enforceable agreement between two or more parties. Can be oral or written; can be express (outright stated) or implied through the actions or conduct of the parties

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32
Q

Remedy at Law

A

typically seeks damages (money)

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33
Q

Remedy in Equity

A

requests a specific act to be performed (injunction, rescission, or reformation) of a contract

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34
Q

Institutional Sources of Law

A

1) Constitution
2) Statutes
3) Common Law

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35
Q

Statute

A

statute is a written law enacted either by Congress or by a state legislature. Federal Statutes published selectively in the United States Code

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36
Q

Adminstrative Rules and Regulations

A

Administrative agencies created by legislature to assist in specialized areas that require 1) special knowledge and 2) more supervision than the legislature can directly provide

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37
Q

How are administrative agencies created?

A

Through an “enabling act” that authorizes the agency to exist and which areas to be administered

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38
Q

Quasi-legislative functions of Administrative Agencies

A

Legislature is able to delegate authority to certain administrative agencies, allowing the agency to make rules and regulations, clarify statutes within authorized area of expertise. Do not carry the same level as statutes, though they do carry the same force of law

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39
Q

Quasi-judicial functions of Administrative Agencies

A

also has the ability to interpret their own rules and regulations. Administrative judges and hearing officers not required to be lawyers in many agencies. Agency has ability to impose civil sanctions if a violation occurs. NO ONE can be incarcerated by an administrative agency. Criminal cases are forwarded to the justice department

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40
Q

T/F: Not all administrative agencies are required to comply with the Administrative Procedure Act (APA) when exercising rule-making and decision process

A

False; ALL administrative agencies must comply, and 1) rules and regulations and 2) decisions of the agency are subject to review and interpretation by courts

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41
Q

What happens before judicial review is granted in administrative agency cases?

A

the appellant/petitioner must demonstrate that they have exhausted ALL of their administrative remedies

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42
Q

Two questions in judicial review cases of administrative agencies:

A
  1. Does the agency have the power to do what it did (based upon its enabling act) and 2. Did the agency use the power fairly (due process)
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43
Q

Forum Shopping

A

Where litigants having their case tried in the court(s) likely to produce the most favorable judgement

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44
Q

Erie Doctrine

A

“There is no federal common law”; (1) to discourage forum shopping among litigants, and (2) to avoid inequitable administration of the laws.

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45
Q

Stare Decisis

A

process used by judges to analyze past cases, determine if any exist with similar facts/issued. If such cases are found, they may be cited as precedent

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46
Q

Which Article of the constitution establishes the Constitution as the supreme law of the land?

A

Article VI

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47
Q

The Constitution consists of ___ Articles and ____ Amendments

A

7 articles, 27 amendments

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48
Q

Three important functions of U.S. constitution:

A
  1. limits power of the states
  2. enumerates powers granted to federal government by the states
  3. guarantees fundamental rights to the people of the United States
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49
Q

Federalism

A

Federal law is superior to state law

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50
Q

Preemption Doctrine

A

any federal law–even a regulation of a federal agency–trumps any conflicting state law.

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51
Q

intrastate

A

within state boundaries

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52
Q

police power

A

each state holds police power; federal government has no similar power

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53
Q

Article I of Constitution

A

establishes Congress (house + senate) as legislative branch

54
Q

Powers of Congress

A

borrow money, impose taxes, regulate interstate commerce, establish post offices, appropriate money, issue currency, control bankruptcy laws, control patents and copyright, create inferior federal courts, declare war, provide for national defense, and serve as legislature for D.C.

55
Q

T/F: Article I prevents Congress from suspending the writ of habeus corpus, except in times of rebellion or invasion

A

True

56
Q

writ of habeus corpus

A

used to secure the release of a prisoner wrongfully held by authorities

57
Q

Article II of the Constitution

A

orders executive power to the president

58
Q

Powers of the President

A

serve as commander-in-chief of the armed forces, make treatises with foreign nations, appoint ambassadors, appoint judges to the supreme court

59
Q

Article III of the Constitution

A

judicial powers to the United States Supreme Court and lower federal courts

60
Q

T/F: the Framers of the constitution viewed the judiciary branch as the most powerful of the three branches of government

A

False; they considered the judiciary as the “least dangerous of the three”

61
Q

Marbury v. Madison

A
  1. U.S. 137 (1805); Chief Justice Marshall exercised judicial review for the first time; established Supreme Court as the court as final review
62
Q

Bill of Rights

A

10 of them; amendments to the constitution kind of added as an afterthought

63
Q

Fourteenth Amendment

A

prohibits states from making or enforcing any laws that diminish the privileges and immunities of U.S. citizens (establishes due process, equal protection)

64
Q

due process

A

fair treatment through the normal judicial system, especially as a citizen’s entitlement.

65
Q

fundamental fairness

A

meaning of due process; can vary depending on the type of right involved as well according to language/effect of a statute/rule

66
Q

state action

A

acts of federal or state government or any of its agents. once state action is found, due process is classified as either substantive due process or procedural due process

67
Q

procedural due process

A

Principle required by the Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard. Fundamental Fairness of 1) notice and 2) opportunity to be heard

68
Q

substantive due process

A

Substantive due process, in United States constitutional law, is a principle allowing courts to protect certain rights deemed fundamental from government interference, even where procedural protections are present. Requires fundamental fairness in the CONTEXT of a statute or rule

69
Q

Overbreadth

A

form of arbitrariness that occurs when the state has a legitimate purpose for the legislation, but language of the statute is not sufficiently tailored for that purpose

70
Q

vagueness

A

a person of normal intelligence cannot tell from the statute’s language what conduct is prohibited/required

71
Q

Notice (part of procedural due process)

A

fundamentally fair if a person is informed of the nature of charges or claims against him/her. For ex., Miranda warnings in criminal cases

72
Q

Opportunity to be Heard

A

hearing of some type must be held to the accused can defend him/herself

73
Q

Jurisdiction

A

power or authority of a court to hear a specific case

74
Q

Subject Matter Jursidiction

A

the types of cases a court is authorized to hear

75
Q

T/F: If a court does not have subject matter jurisdiction, they still have the power to decide the merits of the case

A

False; subject matter jurisdiction can never be waived

76
Q

T/F: In certain instances, subject matter jurisdiction can be waived

A

false

77
Q

T/F: there are 9 types of subject matter jurisdiction

A

True; 1) limited jurisdiction 2) general jurisdiction 3) original jurisdiction 4) appellate jurisdiction 5) exclusive jurisdiction 6) concurrent jurisdiction 7) personal jurisdiction 8) in rem jurisdiction 9) quasi in rem jurisdiction

78
Q

Limited Jurisdiction

A

court cannot hear every type of case that is presented to it. Can only hear cases listed in its creating constitutional provision/statute. Ex., probate court, labor court

79
Q

General Jurisdiction

A

court can hear any type of case presented to it unless exclusive jurisdiction has been granted to some other court for a particular type of case

80
Q

T/F: Courts are either general jurisdiction or limited jurisdiction

A

True; no court can be both

81
Q

T/F: almost every federal court (including the Supreme Court) is a court of limited jurisdiction

A

False, ALL FEDERAL COURTS are limited jurisdiction (including supreme court)

82
Q

Why are all federal courts of limited jurisdiction?

A

The federal government is limited in its powers

83
Q

Original Jurisdiction

A

actions are commenced in this court for particular types of cases

84
Q

T/F: Courts can only be original or appellate jurisdiction; not both

A

False; courts can sometimes be both

85
Q

Appellate Jurisdiction

A

court is authorized to review decisions of an inferior court in certain types of cases

86
Q

Exclusive Jurisdiction

A

no other court has the power to hear this type of case - not even a court of general jurisdiction

87
Q

T/F: A court can either be exclusive or concurrent jurisdiction in regards to a certain type of case

A

True

88
Q

Concurrent Jurisdiction

A

more than one court is authorized to hear a certain type of case

89
Q

Personal Jurisdiction

A

(aka in personam jurisdiction) means that the court has authority over the parties to the litigation

90
Q

Personal Jurisdiction is also known as _______

A

in personam jurisdiction

91
Q

T/F: a court must have both personal jurisdiction AND subject matter jurisdiction before it can hear and decide merits of a case

A

True

92
Q

Ways personal jurisdiction can be acquired by a court:

A
  • defendant’s consent
  • defendant’s domicile in the same state where the action was filed
  • long-arm statutes (for out of state defendants)
93
Q

Minimum contacts

A

the minimum amount of contacts that the defendant must have with the forum state before any court of that state can exercise jurisdiction over him/her

94
Q

___________ is a constitutional requirement for a court to establish personal jurisdiction over a defendant

A

minimum contacts

95
Q

Examples of minimum contacts

A
  • doing business in the state
  • visiting the state
  • soliciting business
96
Q

Long-Arm Statute

A

allows a court to reach outside of its state boundary line to reach a defendant and acquire him to defend himself in the forum state. Designed to allow states to reach defendants that have caused injury within the forum state

97
Q

In Rem Jurisdiction

A

“in relation to the thing”. subject matter of the suit involves property located geographically within the forum state

98
Q

res

A

latin; “property” (or thing)

99
Q

Quasi In Rem Jurisdiction

A

subject matter of the suit does not relate to the property in the court’s jurisdiction, but the defendant has property in the court’s jurisdiction which may be used to satisfy the judgement

100
Q

Venue

A

place of trial

101
Q

Where is the venue in a criminal trial?

A

place where the crime was committed. sometimes changed when defendant is unable to obtain an impartial jury

102
Q

Where is the venue for a civil trial?

A

generally the place where the claim arose, where the defendant resides, where the defendant has either a place or business or agent

103
Q

Forum Non Conveniens

A

the court is inconvenient for witnesses, obtaining evidence, etc.

104
Q

Federal Court System

A

Includes:

  • U.S. Supreme Court
  • Court of Appeals for 13 regions (one for each circuit)
  • district court divided into 90 federal district trial courts
105
Q

T/F: All federal courts are courts of limited jurisdiction

A

True; only have authority to hear cases specifically authorized by constitutional provision or federal statute

106
Q

Federal Constitutional vs. Legislative Courts

A

Constitutional courts (supreme court and federal courts) have judges with life sentences. Legislative judges have fixed terms. Legislative courts are specialty courts (tax court, etc.)

107
Q

U.S. Supreme Court

A

court of last resort in American legal system. 9 justices (one chief justice and 8 associate justices).

108
Q

The U.S. Supreme Court has original jurisdiction over:

A
  1. Two or more states (exclusive)
  2. actions against ambassadors, public ministers, foreign consuls
  3. disputes between the U.S. and a state
  4. actions by a state against its citizens of another state or aliens
109
Q

T/F: The supreme court has original jurisdiction in several types of cases.

A

False; U.S. Supreme Court only has original jurisdiction in disputes between two or more states; all other cases it hears are exclusive

110
Q

writ of certiorari

A

around 1988, most appeals cases reached supreme court via writ of certiorari. granting the writ is discretionary

111
Q

The U.S. Court of Appeals is the intermediate appellate court in the federal court system. It is divided into ___ circuits. ___ circuits numbered according to their respective regions, a U.S. court of appeals for D.C. and the court of appeals for the federal circuit

A

13; 11

112
Q

T/F: Court of Appeals for the Federal Circuit has exclusive appellate jurisdiction over all cases involving copyright, patent, trademark, and plant variety protection, as well as exclusive appellate jurisdiction over appeals from the U.S. Claims Court, U.S. Court of International Trade, and U.S. Court of Veterans Appeals

A

True

113
Q

U.S. District Court

A

is trial court in the federal court system. More than 90 districts across the U.S. Each state and territory has at least one district. U.S. District court has original jurisdiction in many areas, mostly 1) federal question cases and 2) diversity of citizenship cases

114
Q

State Court Systems

A

vary state to state. Most have a supreme court, one or more intermediate courts, a general jurisdiction court, a county court, a small claims court, and several specialty courts

115
Q

T/F: States do not have concurrent jurisdiction with federal courts in all maters except those which are exclusively within federal jurisdiction, such as bankruptcy

A

False; state courts do have concurrent jurisdiction with federal courts on these matters

116
Q

Primary Law

A

carries the greatest weight in the decision making process in a trial

117
Q

Bench trial

A

a case is tried without a jury. Judge fills the dual role by deciding the facts and law to be applied to facts

118
Q

T/F: Primary law is also mandatory law

A

true; it relates the facts and issues of the pending case and must be followed in regards to pending case

119
Q

Secondary Law

A

constitution, state statutes, federal statutes, and case law of other states; not mandatory, but persuasive law

120
Q

T/F: common law is applied only in state cases, except for Louisiana, which follows the civil law system from French heritage)

A

true

121
Q

Common Law

A

in the case where no constitutional or statutory provision applies or if application leaves gaps in final decision, courts (state + federal) can use legal rules through common law principles)

122
Q

stare decisis

A

reviewing past cases

123
Q

The holding of a past case is precedent only if:

A
  • it is found in a case decided by the present court or by a higher court
  • the prior case was recorded (published)
  • it is contained in the majority opinion of that court
124
Q

____________ is when there are no applicable statutes and no precedents in the case of law of the jurisdiction

A

case of first impression

125
Q

Case of First Impression

A
  • if there are no precedents, courts look to other jurisdictions
  • if none are found and/or unsatisfactory, common law courts can draw analogies from existing case law and statutes
126
Q

Conflicts of Law

A

can arise when 1) facts of a case occur in a state other than the forum state 2) when the facts of a case occur in more than one state. also known as “choice of law”

127
Q

Conflicts of Law in Tort cases

A

traditionally the law of the state where the wrong was committed is applied (lex loci delicti commissi).

Often the significant relationship rule is applied, where the court applies substantive law of the place having the most significant contacts with the occurrence or event

128
Q

lex fori

A

law of the state where the suit is filed

129
Q

lex loci solutionis

A

law of the state where the contract was to have been performed

130
Q

lex loci contractus

A

law of the state where the last act occurred which was required to create a binding contract

131
Q

Full Faith and Credit Provision

A

in Article IV of the constitution; “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”. Requires each state to enforce the final judgments of all other states, without regard to the differences in substantive law and public policy from state to state

132
Q

Comity

A

recognition of public acts of one nation by another nation. Matter of courtesy, not law. Ex., a canadian judgement on a promissory note would likely be honored by U.S. courts

Paralegal Certification (6 decks)

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