Chapter Three Flashcards
Federalism
a system of a gov in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas
Doctrine of implied
powers not stated in the constitution but are necessary for congress to carry out other, expressly granted powers
Preemption
the power of the federal gov to prevent the states from passing conflicting laws, and sometimes even to prohibit states from passing any laws on a particular subject
Double jeopardy
a constitutional protection against being tried twice for the same crime
Civil law
law that deals with harm to an individual
Criminal law
law that deals with harm to society as a whole
Plantiff
a person who initiates a lawsuit
Defendant
in a lawsuit the person who is sued, in a criminal case the person who is being charged with a crime
Beyond a reasonable doubt
the standard of proof used in criminals trails
the evidence presented must be so conclusive and complete that there are no reasonable doubts regarding the guilt of the accused
Preponderance of the evidence
the standard of proof most commonly used in the civil trails
The evidence presented must prove that it is more likely than not the defendant committed the wrongful act
Clear and convincing
the standard of proof used in some civil trails
The evidence presented must be greater than a preponderance of the evidence but less than beyond a reasonable doubt
Damages
monetary, compensation, including compensatory, punitive, and nominal damages
Injunction
a court order requiring a party to perform a specific act or to cease doing a specific act
Felony
a serious crime, usually carrying a prison sentence of one or more years
Misdemeanor
a minor crime not amounting to a felony, usually punishable by a fine or a jail sentence of less than a year
Mens rea
bad intent
Actus reus
bad act
Prima facie case
what the prosecution of plantiff must be able to prove in order for the case to go to the jury, that is, the elements of the prosecution’s case or the plantiff’s cause of action
Defense
a fact or legal argument that would relieve the defendant of liability in a civil care or guilt in a criminal case
Cause of action
a claim that based on the law and the facts is sufficient to support a lawsuit
If the plaintiff does not state a valid cause of action in the complaint, the court will dismiss it
Affirmative defense
a defense whereby the defendant offers a new evidence to avoid judgement
Sovereign immunity
the prohibition against suing the gov without the gov consent
Compensatory damages
money awarded to a plaintiff in payment for his or her actual losses
Punitive damages
money awarded to a plaintiff in cases of intentional torts in order to punish the defendant and serve as a warning to others
Nominal damages
a token sum awarded when liability has been found out monetary damages cannot be shown
Contract
an agreement supported by consideration
Consideration
something of value exchanged to form the basis of a contract
Property law
law dealing with ownership
Real property
land and objects permanently attached to land
Personal property
all property that is not real property
Constructive
not factually true, but accepted by the courts as being legally true
Legal fiction
an assumption that something that is not real is real
Federal
Constitution issues
FED statute (IRS codes)
FED regulations
Constitution imposes limits and scope to congress
State law
laws deemed appropriate for health, welfare, safety, morals of their citizens.. as long as they are not prohibited by federal gov
criminal behavior, contracts, torts, property, marriage, family
State and local can pass additional regulations..
for citizens as long as they do not conflict with FED
Standard proof
Beyond a reasonable doubt
Clear & convincing
Preponderance of the evidence
Judgement
Civil- liability or no liability
Criminal- guilty or not guilty
Sanctions/Remedies
Civil- damages or injunctions
Criminal- loss of liberty and financial penalty
Sources of law
Criminal- statutory
Civil- common law
Criminal types of crime
Felonies
Misdemeanors
Statutory
Criminal law prosecution
must have prima facie case
mens rea
actus reus
established the elements of the crime
Criminal defense
witnesses who contradict testimony
Evidence that establish alibi, self defense, or insanity
Self defense
Not have the intent (insanity, infancy, intoxication)
When is affirmative defense & sovereign immunity used?
Civil defense
Example of compensatory
Medical bills
Pain suffering
Example of punitive
the person who committed the tort deserves an additional punishment beyond just compensating the plaintiff
Example of nominal
losing money from a bank & being the victim in the lawsuit
Areas of civil law
contracts
torts
property law
Tort law
law that deals with harm to a person or a person’s property
private wrong
refrain from taking action that would inflict harm on others
Intentional tort
a tort committed by one who intends to do the act that creates the harm on a person or that person’s property
Negligence
the failure to act reasonably under the circumstances and careful
Contributory negligence
negligence by the plaintiff that contributed to his or her injury
acts as a complete bar to a plaintiff’s recovery
Assumption of the risk
voluntarily and knowingly subjecting oneself to danger
Comparative negligence
a method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate decrease in the compensation for the injuries
Strict liability
liability without having to prove fault
Procedural law
law that regulates how the legal system operates
steps that someone must take to file a lawsuit
procedures police must follow in conducting search
Statute of limitations
the law that sets the length of time from when something happens to when a lawsuit be filed before the right to bring it is lost
Elements of a contract
Agreement
Offer
Acceptance
Consideration
Contract defense
breach by the other side and incapacity to contract (underage)
Gift law
one sided (offer, an acceptance, delivery)
Symbolic delivery
constructive delivery (legal fiction)
Three types of torts
Intentional tort
Negligence
Result of liability
Requirements for Negligence
Defendant owed the plaintiff a duty of care
Defendant breached that duty
The breach caused
The plaintiff harm
Defense of Negligence
Rebutting plaintiff’s evidence
Affirmative defense
Contributory negligence
Assumption of risk
Strict liability elements
people who do dangerous activities are responsible for their injuries even if they were doing it in the safest way
sellers are liable for their consumers harm
Substantive law
defines our rights and duties (ex: speed limits)
can a person get monetary damages and a injunction in a civil case?
yes
law can be categorized as
criminal vs civil
procedural vs substantive
state, federal, or local
in a civil case, a defendant may raise affirmative defense
true
Under strict liability there are times when a defendant can be made liable even though the defendant was not negligent and did not intend to harm anyone
true
Charging a person with a criminal violation and suing that person civilly constitutes double jeopardy
false
In order for a person to be convicted of a crime, the state must prove
bad intent
bad act
The difference between contributory negligence and assumption of risk is that
under contributory negligence the plaintiff failed to act reasonably;under assumption of the risk the plaintiff voluntarily and knowingly subjected himself or herself to a known danger
