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LEGL 2700 > cumulative final > Flashcards

cumulative final Flashcards

1
Q

What are the classifications of law?

A

common law v civil law
criminal law v civil law
substantive v procedural law

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2
Q

what does common law systems mean?

A

strong emphasis on judges’ interpretation and application of laws

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3
Q

what does civil law systems mean?

A

rely more on legislation to determine what the law is

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4
Q

what are criminal law cases?

A

government brings suit to prove the wrong committed against society

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5
Q

what are civil law cases?

A

individual sues for damages or equitable relief

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6
Q

what is substantive law?

A

defines the legal relationship of people with other people or with the state

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7
Q

what is procedural law?

A

method and means by which substantive law is made and administered

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8
Q

who are the court personnel?

A

judges, juries, and lawyers

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9
Q

what do judges do?

A

apply the law

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10
Q

what do juries do?

A

decide question of fact

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11
Q

what does a petit jury do?

A

returns the verdict to trial

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12
Q

what does a grand jury do?

A

determine whether felony charges should be brought

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13
Q

what do lawyers do?

A

present evidence, points of law and arguments on behalf of clients

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14
Q

what courts are under state courts?

A

trial courts, courts of appeals, Supreme Court

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15
Q

what can the losing party do in the state court level?

A

can file an appeal for the court of appeals and decide questions of law on appeal

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16
Q

what must be granted if you lose in the courts of appeal and want to go to the Supreme Court?

A

writ of certiorari

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17
Q

what courts are under the federal court system?

A

district courts, courts of appeals (twelve circuits), and Supreme Court

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18
Q

what are the federal courts subject matter jurisdiction?

A
  • questions of federal law
  • the United States as a party
  • controversies among other states
  • cases with diversity of citizenship
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19
Q

how much must the claim be for cases with diversity of citizenship?

A

must be more than $75,000

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20
Q

what must the plaintiff establish for jurisdiction?

A

jurisdiction and standing

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21
Q

how is personal jurisdiction established for in state criminal cases?

A

arrest

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22
Q

how is personal jurisdiction established for out of state criminal cases?

A

extradition

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23
Q

how is personal jurisdiction established for in state civil cases?

A

service of summons or notice to appear in court

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24
Q

how Is personal jurisdiction established in out of state civil cases?

A

long arm statutes with minimum contacts

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25
Q

what are the minimum contacts for long arm statues?

A
  • 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
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26
Q

what must the plaintiff allege to establish standing?

A

case or controversy and personal stake in the resolution

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27
Q

what does case or controversy mean?

A

the case must have connection to the law

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28
Q

what does personal stake in the resolution mean?

A

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

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29
Q

what is the standard for discovery?

A

where parties try to figure out what the other parties know

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30
Q

what are the methods of discovery?

A

interrogatories, requests for admissible documents, deposition, requests for admission

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31
Q

what are interrogatories?

A

written open ended questions

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32
Q

what are requests for production of documents?

A

request the other side to produce some side of documents that is relevant to the case

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33
Q

what are depositions?

A

sworn questioning of the witness

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34
Q

what are requests for admissions?

A

ask the other side to admit or deny certain facts

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35
Q

what are the pre trial motions?

A

motion to dismiss
motion for the judgment on the pleadings
motion for summary judgment

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36
Q

what is motion to dismiss?

A

defendant will always file after the plaintiff files the claims

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37
Q

what is motion for judgment on the pleadings?

A

when you ask the judge to enter a judgment in you favor based on the pleadings

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38
Q

what is motion for summary judgment?

A

when you ask the court to look at the pleadings and the evidence that has come in during discovery , no material in fact

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39
Q

what are the pleadings for motion for judgment on the pleadings?

A

complaint and answer

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40
Q

what are the trial motions?

A

motion for a directed verdict

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41
Q

what is motion for a directed verdict?

A

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

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42
Q

what can the judge take away from the jury in a motion for a directed verdict?

A

discretion

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43
Q

what is another name for motion for a directed verdict?

A

judgment as a matter of law

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44
Q

what are the post trial motions?

A

motion for judgment notwithstanding the verdict and motion for a new trial

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45
Q

what Is motion for judgment not withstanding the verdict?

A

reasonable minds could not reach the conclusion the jury did, judge enters judgment in defendants favor

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46
Q

what is motion for a new trial?

A

when you argue a legal mistake was made during trial and there should be a new trial judge

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47
Q

what are the civil burdens of proof?

A

preponderance of evidence and clear and convincing proof

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48
Q

what type of cases use clear and convincing proof?

A

probate and paternity cases

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49
Q

what is the criminal burden of proof?

A

beyond a reasonable doubt

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50
Q

what is under the separation of powers?

A

articles I, II, III

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51
Q

what did article I do?

A

establish the legislative branch

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52
Q

what did article II do?

A

establish the executive branch

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53
Q

what did article III do?

A

established the judicial branch

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54
Q

what is the supremacy clause?

A

US constitution is superior to ALL laws and federal laws are superior to state laws

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55
Q

what is the commerce clause?

A

congress has the power to regulate commerce with foreign nations among the several states

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56
Q

what does “among several states” mean in the commerce clause?

A

apply to interstate commerce AND prohibit states from enacting legislation that unduly burdens interstates commerce (dormant commerce clause)

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57
Q

what is the original framework for the constitution?

A

separation of powers

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58
Q

what does the first amendment establish?

A

freedom of religion, press and speech

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59
Q

under religion in the first amendment, what two clauses exist?

A

establishment clause and free exercise clause

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60
Q

what does the establishment clause mean?

A

“respecting an establishment of religion”

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61
Q

what does the free exercise clause mean?

A

“or prohibiting the free exercise thereof”

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62
Q

what does the fifth amendment establish?

A

the takings clause

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63
Q

what is the takings clause ?

A

government cannot take property unless for public use, and pays just compensation

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64
Q

what does the fourteenth amendment establish?

A

due process; life, liberty and property is being deprived

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65
Q

what does procedural due process mean?

A

involves whether proper notice has been given and a proper hearing has been conducted

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66
Q

what does substantive due process mean?

A

must have a reason for depriving you of life, liberty and property

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67
Q

what does the equal protection clause mean?

A

protecting people based on certain traits

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68
Q

what is under minimum rationality/ rational basis?

A

height, weight, age, testing, marriage

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69
Q

what is under quasi strict scrutiny?

A

gender

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70
Q

what is under strict scrutiny ?

A

race, national origin, legitimacy

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71
Q

what is real property ?

A

ownership in land and interests

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72
Q

what are fixtures?

A

personal property that becomes real property by attaching it to land or buildings

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73
Q

what are the estates in land?

A

fee simple estate, life estate, leasehold estate

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74
Q

what is under fee simple estate?

A

fee simple absolute
fee simple defeasible

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75
Q

what does fee simple absolute mean?

A

to carly

76
Q

what does fee simple defeasible mean?

A

to carly so long as

77
Q

what does life estate mean?

A

to carly for life

78
Q

what does leasehold estate mean?

A

to carly for 5 years

79
Q

what are the types of concurrent ownership?

A

joint tenants and tenants in common

80
Q

what is the difference between joint tenants and tenants in common?

A

joint tenants have rights of survivorship and have equal shares of property while tenants in common do not

81
Q

how has first priority when recording a mortgage?

A

the first to record the mortgage

82
Q

what is abandoned property?

A

owner intended to abandon the property and to acquire you have to be the first to possess once its been abandoned

83
Q

what is lost property ?

A

owner had no intent to abandon property and to acquire you have to follow statutory procedure

84
Q

what is mislaid property ?

A

owner intends where they left property but forgot about it, must give the property to owner of the premises where it was found

85
Q

what are the security interests in personal property (UCC)?

A

attachment and perfection

86
Q

what is attachment?

A

process where lender obtains that security interest in that personal property

87
Q

what is perfection?

A

put the world on notice that they have security interest in that personal property, first to file has priority

88
Q

what is the exception to perfection under security interests in personal property (UCC)?

A

purchase money security interests in consumer goods (PMSI) and buyer in the ordinary course

89
Q

what does purchase money security interest mean?

A

a security interest that secures the purchase price of goods bought for personal or household use

90
Q

what does buyer in the ordinary course mean?

A

someone buys something in good faith

91
Q

what are some of the types of intellectual property?

A

trade secrets
patents
trademarks
copyrights

92
Q

what are trade secrets?

A

information that has economic value because it is secret

93
Q

what is misappropriation under trade secrets?

A

improper acquisitions of trade secret (burglary, espionage, hacking)

94
Q

what are patents?

A

right to exclude others from making, selling or importing a covered invention

95
Q

what are the types of patents?

A

utility, design and plant

96
Q

what are trademarks?

A

marks on what is produce to represent the origin of those goods

97
Q

what are copyrights?

A

right in a creative expression that protects creators

98
Q

what are the types of torts?

A

intentional torts
negligence
strict liability

99
Q

what are the types of intentional torts?

A

invasion of privacy
defamation
injurious falsehood
tortious interference

100
Q

what is invasion of privacy?

A

using a person’s likeness for personal gain
intrusion upon solitude
public disclosure of highly objectionable private information

101
Q

what is defamation?

A

untrue statements that harms a persons reputation

102
Q

what Is injurious falsehood?

A

publication of untrue statements that disparage a business’s product of its quality

103
Q

what is tortious interference?

A

wrongful interference with contractual business relationships

104
Q

what are the elements of negligence?

A

duty of care
breach of duty
causation
actual injury

105
Q

what is a persons duty of care?

A

act as a reasonable person to avoid injuring others

106
Q

what are the types of causation under negligence?

A

causation in fact and proximate causation

107
Q

what is causation in fact?

A

the plaintiff must prove that the defendant actually caused the injury

108
Q

what is proximate causation?

A

injury was reasonably foreseeable on the defendants breach of duty

109
Q

what are defenses to negligence?

A

assumption of the risk and contributory negligence/ comparative negligence

110
Q

what is assumption of the risk?

A

plaintiff voluntarily assumed the specific risk

111
Q

what is contributory negligence?

A

if the plaintiff contributed at all to their own harm, they would not get one cent at all from defendant

112
Q

what is comparative negligence?

A

plaintiff damages will be reduced by the extent to which she contributed to his/ her own injury

113
Q

what is strict liability?

A

legal responsibility for injury causing behavior that is neither intentional nor negligent

114
Q

what are the types of strict liability ?

A

products liability and ultra hazardous activities

115
Q

what are the types of defects under products liability ?

A

product defect and design defect

116
Q

what is a product defect?

A

not created to standards

117
Q

what is a design defect?

A

unsafe design

118
Q

what is an ultrahazardous activity ?

A

transporting and using explosives and poison
keeping dangerous wild animals
artificial storage of large quantities of liquid

119
Q

what are the elements of a crime?

A

mens rea and actus reas

120
Q

define mens rea

A

a guilty mind

121
Q

define actus reas

A

a guilty act

122
Q

what are some white collar crimes?

A

conspiracy
obstruction of justice
larceny

123
Q

what is conspiracy ?

A

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

124
Q

what is obstruction of justice?

A

act with the intent to obstruct legislative or judicial process

125
Q

what is larceny ?

A

unlawful taking of personal property with the intent to deprive the owner of it permanently

126
Q

what is under larceny?

A

robbery, burglary, embezzlement

127
Q

what is robbery?

A

larceny by force

128
Q

what is burglary?

A

breaking and entering with the intent to commit larceny

129
Q

what is embezzlement?

A

larceny by an employee or trusted member

130
Q

what is under the fourth amendment?

A

search and seizure: requires warrant to search places with reasonable expectation of privacy

131
Q

what is the exception to search and seizure?

A

exigent circumstances (person or evidence is in imminent danger)

132
Q

what is under the fifth amendment?

A

grand jury, self incrimination, double jeopardy

133
Q

what is under the sixth amendment ?

A

speedy public trial, assistance of an attorney

134
Q

what is under the eighth amendment?

A

cruel and unusual punishment

135
Q

what are the sources of contract law?

A

legislation and common law

136
Q

what is legislation under contract law?

A

contracts for goods (UCC)

137
Q

what is common law under contract law?

A

all other contracts

138
Q

what are the types of contracts?

A

express
implied in fact
implied in law/ quasi contract

139
Q

what is an express contract?

A

agreement where parties show their agreement in words

140
Q

what is implied in fact?

A

arise from the conduct of parties

141
Q

what is implied in law/ quasi contract?

A

remedy when no contract exist but one party has been unjustly enriched

142
Q

what are the elements of a contract?

A

offer
acceptance
consideration
legality
capacity

143
Q

what is the exception to consideration?

A

promissory estoppel

144
Q

what is promissory estoppel?

A

when courts award damages to a party who has justifiably relied on a promise that is not supported by consideration

145
Q

what is an offer?

A

contains a specific promise and demand

146
Q

what is acceptance?

A

necessary to create a valid, enforceable contract

147
Q

what is consideration?

A

some incentive or inducement for a person’s promise or it is not binding

148
Q

what is capacity ?

A

a person’s ability to be bound by a contract

149
Q

what are the defenses to a contract?

A

improper form and no meeting of the minds

150
Q

what is the general rule for improper form ?

A

oral contracts are enforceable

151
Q

what is the exception to improper form?

A

the statute of frauds requires certain types of contracts to be in writing?

152
Q

what types of contracts must be in writing?

A

sale of interest in land
collateral promise to pay ones debt
contracts that cannot be performed within a year
sale of $500 or more

153
Q

what is the exception to goods with the sale of $500 or more?

A

specially made goods

154
Q

what are examples of no meeting of the minds?

A

fraud
mutual mistake
duress
undue influence

155
Q

what is fraud?

A

intentional misrepresentation

156
Q

what is mutual mistake?

A

parties reach an agreement based on an incorrect assumption of both parties

157
Q

what is duress?

A

threat that compels another to do what he or she would not otherwise do

158
Q

what is undue influence?

A

party misuses a position of relationship or legal confidence

159
Q

what are the excuses for nonperformance?

A

impossibility (common law) and commercial impracticability (UCC)

160
Q

what is impossibility ?

A

performance is illegal or physically impossible

161
Q

what is commercial impracticability ?

A

circumstances greatly increase the difficulty of performing (LOWER STANDARD)

162
Q

what are the types of performance?

A

complete, substantial, material breach

163
Q

what type of performance is when the other party is obligated to completely perform ?

A

complete performance

164
Q

what type of performance is when the other party is required to perform but may sue for damages ?

A

substantial performance

165
Q

what type of performance is when the other party is relieved form performing and may sue for damages?

A

material breach

166
Q

what are the types of damages?

A

compensatory, liquidated, consequential

167
Q

what are compensatory damages?

A

damages that put the plaintiff in the same position as the contract had been performed?

168
Q

what are liquidated damages?

A

the amount of damages written in the contract

169
Q

what are consequential damages?

A

damages from downstream impact of the breach

170
Q

when do consequential damages arise?

A

from unusual foreseeable losses (ex. lost sales)

171
Q

what are the liabilities under agency law?

A

contract, tort and criminal

172
Q

what is contract liability ?

A

employee with actual, implied or apparent authority can bind employer to contract

173
Q

what is tort liability ?

A

employer liable for tortious acts of employees when employee is acting in the scope of their employment

174
Q

what is criminal liability ?

A

employer may face criminal liability for the criminal actions of its agents

175
Q

what are sole proprietorships?

A

formed automatically, owner personally liable, not taxed as an entity

176
Q

what are the types of general partnerships ?

A

general, limited and limited liability

177
Q

what is a general partnership?

A

formed automatically, owners personally liable, not taxed as entity

178
Q

what is limited partnership?

A

limited partnerships certification, GP personally liable not LP, GP manages not LP

179
Q

what is limited liability partnership ?

A

formed by professionals, all partners manage, each partner liable for own negligence

180
Q

what are the types of corporations?

A

C corp
S corp
non profit
benefit corp

181
Q

what is a c corp?

A

formed by articles of inc. (charter)
taxed at entity level and owner level
shareholders not liable (unless pierced)

182
Q

what is a s corp?

A

taxed only at owner level
limited to 100 shareholders
individuals only

183
Q

what is a non profit ?

A

must qualify for tax exempt status with IRS (50 Ic3)

184
Q

what is a benefit corp?

A

may serve social purpose and seek profit

185
Q

what is a limited liability company?

A

formed with article of organization
entity not taxed
members not liable (generally)

LEGL 2700 (18 decks)

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