cumulative final Flashcards
What are the classifications of law?
common law v civil law
criminal law v civil law
substantive v procedural law
what does common law systems mean?
strong emphasis on judges’ interpretation and application of laws
what does civil law systems mean?
rely more on legislation to determine what the law is
what are criminal law cases?
government brings suit to prove the wrong committed against society
what are civil law cases?
individual sues for damages or equitable relief
what is substantive law?
defines the legal relationship of people with other people or with the state
what is procedural law?
method and means by which substantive law is made and administered
who are the court personnel?
judges, juries, and lawyers
what do judges do?
apply the law
what do juries do?
decide question of fact
what does a petit jury do?
returns the verdict to trial
what does a grand jury do?
determine whether felony charges should be brought
what do lawyers do?
present evidence, points of law and arguments on behalf of clients
what courts are under state courts?
trial courts, courts of appeals, Supreme Court
what can the losing party do in the state court level?
can file an appeal for the court of appeals and decide questions of law on appeal
what must be granted if you lose in the courts of appeal and want to go to the Supreme Court?
writ of certiorari
what courts are under the federal court system?
district courts, courts of appeals (twelve circuits), and Supreme Court
what are the federal courts subject matter jurisdiction?
- questions of federal law
- the United States as a party
- controversies among other states
- cases with diversity of citizenship
how much must the claim be for cases with diversity of citizenship?
must be more than $75,000
what must the plaintiff establish for jurisdiction?
jurisdiction and standing
how is personal jurisdiction established for in state criminal cases?
arrest
how is personal jurisdiction established for out of state criminal cases?
extradition
how is personal jurisdiction established for in state civil cases?
service of summons or notice to appear in court
how Is personal jurisdiction established in out of state civil cases?
long arm statutes with minimum contacts
what are the minimum contacts for long arm statues?
- has committed a tort within the state
- owns property within the state that is the subject matter of the lawsuit
- has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state
what must the plaintiff allege to establish standing?
case or controversy and personal stake in the resolution
what does case or controversy mean?
the case must have connection to the law
what does personal stake in the resolution mean?
it prevents any individual from asserting the rights of the general public of of a group of of which he or she is not a member
what is the standard for discovery?
where parties try to figure out what the other parties know
what are the methods of discovery?
interrogatories, requests for admissible documents, deposition, requests for admission
what are interrogatories?
written open ended questions
what are requests for production of documents?
request the other side to produce some side of documents that is relevant to the case
what are depositions?
sworn questioning of the witness
what are requests for admissions?
ask the other side to admit or deny certain facts
what are the pre trial motions?
motion to dismiss
motion for the judgment on the pleadings
motion for summary judgment
what is motion to dismiss?
defendant will always file after the plaintiff files the claims
what is motion for judgment on the pleadings?
when you ask the judge to enter a judgment in you favor based on the pleadings
what is motion for summary judgment?
when you ask the court to look at the pleadings and the evidence that has come in during discovery , no material in fact
what are the pleadings for motion for judgment on the pleadings?
complaint and answer
what are the trial motions?
motion for a directed verdict
what is motion for a directed verdict?
requests the judge to direct the jury to bring a particular verdict if reasonable minds could NOT differ on the correct outcome of the lawsuit
what can the judge take away from the jury in a motion for a directed verdict?
discretion
what is another name for motion for a directed verdict?
judgment as a matter of law
what are the post trial motions?
motion for judgment notwithstanding the verdict and motion for a new trial
what Is motion for judgment not withstanding the verdict?
reasonable minds could not reach the conclusion the jury did, judge enters judgment in defendants favor
what is motion for a new trial?
when you argue a legal mistake was made during trial and there should be a new trial judge
what are the civil burdens of proof?
preponderance of evidence and clear and convincing proof
what type of cases use clear and convincing proof?
probate and paternity cases
what is the criminal burden of proof?
beyond a reasonable doubt
what is under the separation of powers?
articles I, II, III
what did article I do?
establish the legislative branch
what did article II do?
establish the executive branch
what did article III do?
established the judicial branch
what is the supremacy clause?
US constitution is superior to ALL laws and federal laws are superior to state laws
what is the commerce clause?
congress has the power to regulate commerce with foreign nations among the several states
what does “among several states” mean in the commerce clause?
apply to interstate commerce AND prohibit states from enacting legislation that unduly burdens interstates commerce (dormant commerce clause)
what is the original framework for the constitution?
separation of powers
what does the first amendment establish?
freedom of religion, press and speech
under religion in the first amendment, what two clauses exist?
establishment clause and free exercise clause
what does the establishment clause mean?
“respecting an establishment of religion”
what does the free exercise clause mean?
“or prohibiting the free exercise thereof”
what does the fifth amendment establish?
the takings clause
what is the takings clause ?
government cannot take property unless for public use, and pays just compensation
what does the fourteenth amendment establish?
due process; life, liberty and property is being deprived
what does procedural due process mean?
involves whether proper notice has been given and a proper hearing has been conducted
what does substantive due process mean?
must have a reason for depriving you of life, liberty and property
what does the equal protection clause mean?
protecting people based on certain traits
what is under minimum rationality/ rational basis?
height, weight, age, testing, marriage
what is under quasi strict scrutiny?
gender
what is under strict scrutiny ?
race, national origin, legitimacy
what is real property ?
ownership in land and interests
what are fixtures?
personal property that becomes real property by attaching it to land or buildings
what are the estates in land?
fee simple estate, life estate, leasehold estate
what is under fee simple estate?
fee simple absolute
fee simple defeasible
what does fee simple absolute mean?
to carly
what does fee simple defeasible mean?
to carly so long as
what does life estate mean?
to carly for life
what does leasehold estate mean?
to carly for 5 years
what are the types of concurrent ownership?
joint tenants and tenants in common
what is the difference between joint tenants and tenants in common?
joint tenants have rights of survivorship and have equal shares of property while tenants in common do not
how has first priority when recording a mortgage?
the first to record the mortgage
what is abandoned property?
owner intended to abandon the property and to acquire you have to be the first to possess once its been abandoned
what is lost property ?
owner had no intent to abandon property and to acquire you have to follow statutory procedure
what is mislaid property ?
owner intends where they left property but forgot about it, must give the property to owner of the premises where it was found
what are the security interests in personal property (UCC)?
attachment and perfection
what is attachment?
process where lender obtains that security interest in that personal property
what is perfection?
put the world on notice that they have security interest in that personal property, first to file has priority
what is the exception to perfection under security interests in personal property (UCC)?
purchase money security interests in consumer goods (PMSI) and buyer in the ordinary course
what does purchase money security interest mean?
a security interest that secures the purchase price of goods bought for personal or household use
what does buyer in the ordinary course mean?
someone buys something in good faith
what are some of the types of intellectual property?
trade secrets
patents
trademarks
copyrights
what are trade secrets?
information that has economic value because it is secret
what is misappropriation under trade secrets?
improper acquisitions of trade secret (burglary, espionage, hacking)
what are patents?
right to exclude others from making, selling or importing a covered invention
what are the types of patents?
utility, design and plant
what are trademarks?
marks on what is produce to represent the origin of those goods
what are copyrights?
right in a creative expression that protects creators
what are the types of torts?
intentional torts
negligence
strict liability
what are the types of intentional torts?
invasion of privacy
defamation
injurious falsehood
tortious interference
what is invasion of privacy?
using a person’s likeness for personal gain
intrusion upon solitude
public disclosure of highly objectionable private information
what is defamation?
untrue statements that harms a persons reputation
what Is injurious falsehood?
publication of untrue statements that disparage a business’s product of its quality
what is tortious interference?
wrongful interference with contractual business relationships
what are the elements of negligence?
duty of care
breach of duty
causation
actual injury
what is a persons duty of care?
act as a reasonable person to avoid injuring others
what are the types of causation under negligence?
causation in fact and proximate causation
what is causation in fact?
the plaintiff must prove that the defendant actually caused the injury
what is proximate causation?
injury was reasonably foreseeable on the defendants breach of duty
what are defenses to negligence?
assumption of the risk and contributory negligence/ comparative negligence
what is assumption of the risk?
plaintiff voluntarily assumed the specific risk
what is contributory negligence?
if the plaintiff contributed at all to their own harm, they would not get one cent at all from defendant
what is comparative negligence?
plaintiff damages will be reduced by the extent to which she contributed to his/ her own injury
what is strict liability?
legal responsibility for injury causing behavior that is neither intentional nor negligent
what are the types of strict liability ?
products liability and ultra hazardous activities
what are the types of defects under products liability ?
product defect and design defect
what is a product defect?
not created to standards
what is a design defect?
unsafe design
what is an ultrahazardous activity ?
transporting and using explosives and poison
keeping dangerous wild animals
artificial storage of large quantities of liquid
what are the elements of a crime?
mens rea and actus reas
define mens rea
a guilty mind
define actus reas
a guilty act
what are some white collar crimes?
conspiracy
obstruction of justice
larceny
what is conspiracy ?
two or more individuals knowingly agree on a plan to carryout a crime AND at least one individual commits an overt act in furtherance of the crime
what is obstruction of justice?
act with the intent to obstruct legislative or judicial process
what is larceny ?
unlawful taking of personal property with the intent to deprive the owner of it permanently
what is under larceny?
robbery, burglary, embezzlement
what is robbery?
larceny by force
what is burglary?
breaking and entering with the intent to commit larceny
what is embezzlement?
larceny by an employee or trusted member
what is under the fourth amendment?
search and seizure: requires warrant to search places with reasonable expectation of privacy
what is the exception to search and seizure?
exigent circumstances (person or evidence is in imminent danger)
what is under the fifth amendment?
grand jury, self incrimination, double jeopardy
what is under the sixth amendment ?
speedy public trial, assistance of an attorney
what is under the eighth amendment?
cruel and unusual punishment
what are the sources of contract law?
legislation and common law
what is legislation under contract law?
contracts for goods (UCC)
what is common law under contract law?
all other contracts
what are the types of contracts?
express
implied in fact
implied in law/ quasi contract
what is an express contract?
agreement where parties show their agreement in words
what is implied in fact?
arise from the conduct of parties
what is implied in law/ quasi contract?
remedy when no contract exist but one party has been unjustly enriched
what are the elements of a contract?
offer
acceptance
consideration
legality
capacity
what is the exception to consideration?
promissory estoppel
what is promissory estoppel?
when courts award damages to a party who has justifiably relied on a promise that is not supported by consideration
what is an offer?
contains a specific promise and demand
what is acceptance?
necessary to create a valid, enforceable contract
what is consideration?
some incentive or inducement for a person’s promise or it is not binding
what is capacity ?
a person’s ability to be bound by a contract
what are the defenses to a contract?
improper form and no meeting of the minds
what is the general rule for improper form ?
oral contracts are enforceable
what is the exception to improper form?
the statute of frauds requires certain types of contracts to be in writing?
what types of contracts must be in writing?
sale of interest in land
collateral promise to pay ones debt
contracts that cannot be performed within a year
sale of $500 or more
what is the exception to goods with the sale of $500 or more?
specially made goods
what are examples of no meeting of the minds?
fraud
mutual mistake
duress
undue influence
what is fraud?
intentional misrepresentation
what is mutual mistake?
parties reach an agreement based on an incorrect assumption of both parties
what is duress?
threat that compels another to do what he or she would not otherwise do
what is undue influence?
party misuses a position of relationship or legal confidence
what are the excuses for nonperformance?
impossibility (common law) and commercial impracticability (UCC)
what is impossibility ?
performance is illegal or physically impossible
what is commercial impracticability ?
circumstances greatly increase the difficulty of performing (LOWER STANDARD)
what are the types of performance?
complete, substantial, material breach
what type of performance is when the other party is obligated to completely perform ?
complete performance
what type of performance is when the other party is required to perform but may sue for damages ?
substantial performance
what type of performance is when the other party is relieved form performing and may sue for damages?
material breach
what are the types of damages?
compensatory, liquidated, consequential
what are compensatory damages?
damages that put the plaintiff in the same position as the contract had been performed?
what are liquidated damages?
the amount of damages written in the contract
what are consequential damages?
damages from downstream impact of the breach
when do consequential damages arise?
from unusual foreseeable losses (ex. lost sales)
what are the liabilities under agency law?
contract, tort and criminal
what is contract liability ?
employee with actual, implied or apparent authority can bind employer to contract
what is tort liability ?
employer liable for tortious acts of employees when employee is acting in the scope of their employment
what is criminal liability ?
employer may face criminal liability for the criminal actions of its agents
what are sole proprietorships?
formed automatically, owner personally liable, not taxed as an entity
what are the types of general partnerships ?
general, limited and limited liability
what is a general partnership?
formed automatically, owners personally liable, not taxed as entity
what is limited partnership?
limited partnerships certification, GP personally liable not LP, GP manages not LP
what is limited liability partnership ?
formed by professionals, all partners manage, each partner liable for own negligence
what are the types of corporations?
C corp
S corp
non profit
benefit corp
what is a c corp?
formed by articles of inc. (charter)
taxed at entity level and owner level
shareholders not liable (unless pierced)
what is a s corp?
taxed only at owner level
limited to 100 shareholders
individuals only
what is a non profit ?
must qualify for tax exempt status with IRS (50 Ic3)
what is a benefit corp?
may serve social purpose and seek profit
what is a limited liability company?
formed with article of organization
entity not taxed
members not liable (generally)
