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Essential Legal Concepts Flashcards

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1
Q

What is Jurisprudence?

A

The philosophy, science, or study of law

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2
Q

Describe “Law as power”

A

Power backed by threats. At a most basic interpretation, some believe that law is simply power. That is, the law is followed because the sovereign issues orders that are backed by threats.

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3
Q

What is “Color of law”?

A

An apparent legal right that may or may not exist. It describes a law that is made, backed by threats, but may not be considered just. Abuse of power under the guise of state authority.

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4
Q

Describe Legal Positivists

A

Legal positivists believe that laws are written, human-made rules, so they are not drawn from any source higher than humankind. If the law is created legitimately, then it must be followed regardless if it conflicts citizens with a citizens conscience. Illegitimately created laws are not considered valid laws.

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5
Q

What is due process?

A

Legal proceedings that are regular, orderly, and based on established principles for the enforcement and protection of rights.

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6
Q

Describe Legal Realists

A

Legal realists believe that the outcome of any issue that arises under law is dependent on the person, such as a judge, who is in the position to exercise power under the mantle of the law. They believe outcomes can be interpreted and manipulated according to the Judges own prejudices.

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7
Q

Describe Natural Law

A

Natural Law adherents believe law comes from a source higher than humans. A universal moral code. Humans are able to reason, and therefore they are able to discover moral truths on their own. They are not automatons who require a sovereign power to tell them right from wrong. Human made laws are only valid if they don’t conflict with natural law.

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8
Q

What does the term positive law refer to?

A

The term positive law simply refers to a body of man-made laws that regulate conduct.

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9
Q

Describe Common Law

A

Common law is heavily based on precedent set by previous judges and court cases. Courts in one state may look to common law decisions from the courts of other states where the reasoning in a similar case is persuasive.

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10
Q

What does “stare decisis” mean and how does it relate to common law.

A

It’s a latin phrase that means “let the decision stand” and refers to the process of using common law when making decisions.

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11
Q

Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law:

A

Property
Contract
Tort

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12
Q

What is a statute?

A

An act of a legislature declaring, requiring, or prohibiting something. Also known as a law.

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13
Q

What is Tort Law?

A

Tort = Wrong, Injustice; Tort law deals with the types of cases that involve some kind of harm and/or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract law.

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14
Q

What is Jurisdiction?

A

A general term referring to the power and authority of a court; areas of authority including geographical areas covered by a court as well as subject matter areas and the ability to determine personal rights.

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15
Q

Who are the parties in a civil case?

A

Plaintiff brings case; defendant must answer or lose by default

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16
Q

Who are the parties in a criminal case?

A

Prosecutor brings case; defendant may remain silent

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17
Q

What does the proof need to be in a civil case?

A

Preponderance of evidence

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18
Q

What does the proof need to be in a criminal case?

A

Beyond a reasonable doubt

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19
Q

What is the purpose of civil cases?

A

To settle disputes peacefully, usually between private parties

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20
Q

What is the purpose of criminal cases?

A

To maintain order in society

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21
Q

What are the remedies in a civil case?

A

Money damages (legal remedy)
Injunctions (equitable remedy)
Specific performance (equity)

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22
Q

What are the remedies in a criminal case?

A

Fines, jail, and forfeitures

23
Q

How can you tell a civil case from a criminal case?

A

by looking at the caption of a case going to trial. If the government appears first in the caption of the case (e.g., U.S. v. Lieberman), it is likely that the United States is prosecuting on behalf of the people.

24
Q

What does law aim to cover in society?

A

Law aims to cover society’s moral minimums, but cannot account for all wrongs that may occur.

25
Q

Basic ethical norms for promise-keeping and not harming others are reflected in what kinds of law?

A

Basic ethical norms for promise-keeping and not harming others are reflected in the common law of contracts, torts, and property

26
Q

What is public law?

A

Public law applies to everyone. It is law that has been created by some legitimate authority with the power to create law, and it has been “handed down” to the people within its jurisdiction.

27
Q

What is private law?

A

Parties to a contract are involved in a private law agreement. The terms of the contract apply to the parties of the contract, but not to anyone else.

28
Q

What is procedural law?

A

Procedural law describes the legal rules that must be followed. The rules that govern the method of enforcement of substantive law.

29
Q

What is substantive law?

A

We are used to seeing laws as substantive; that is, there is some rule of conduct or behavior that is called for or some action that is proscribed (prohibited).
(of law) defining rights and duties as opposed to giving the rules by which such things are established.

30
Q

What does substantive mean?

A

Meaningful, having substance and a firm basis in reality. As opposed to simply rules and regulations.

31
Q

What do substantive rules tell us?

A

How to act with one another and with the government.

32
Q

What do procedural laws tell us?

A

Procedural laws are the rules of courts and administrative agencies. They tell us how to proceed if there is a substantive-law problem.

33
Q

What is statutory law?

A

Statutory law is law created by a legislative body.

34
Q

Who is the legislative body at the federal level

A

Congress

35
Q

Define Bicameral

A

Legislative bodies such as Congress in the U.S. and Parliament in the United Kingdom that have 2 separate chambers. In the U.S., these are the House of Representatives and the Senate.

36
Q

What two bodies is congress composed of?

A

The Senate and The House of Representatives

37
Q

How many members does The Senate have?

A

100

38
Q

How many members does The House of Representatives have?

A

435

39
Q

How long is a “term” for Senators?

A

6 years

40
Q

How long is a “term” for a member of The House of Representatives?

A

2 years

41
Q

Are there term limits for the Senate and The House of Representatives?

A

No. There are no term limits for how many terms they can serve consecutively.

42
Q

What is one benefit of their being no term limits for Senators and House of Representatives?

A

Institutional knowledge and wisdom can be carried forward in perpetuity. If there were term limits congress would be forever laboring with inexperienced law makers.

43
Q

What is one drawback of there being no term limit for The Senate & The House of Representatives?

A

They may be inclined to use their votes strategically to ensure re-election instead of ensuring their votes are used for the good of the people.

44
Q

How does a bill become a law?

A

A bill can be introduced to congress through the senate or house of representatives. Once introduced, it is passed on the an appropriate in the chamber of Congress where the bill originated. If the committee moves forward with the bill, it modifies the bill as it sees fit to do, and then it sends the bill to the house of origination (either the Senate or the House of Representatives) for a vote. If the bill passes, then it is sent to the other house (again, either the Senate or the House of Representatives), where it undergoes the same process. If the other house votes to approve the bill, then the bill goes to the joint committee, which is composed of members of both the House of Representatives and the Senate, where final work is completed. After that, the bill is sent to Congress for a full vote. If the bill passes, it is sent to the President. If the President signs the bill, then it becomes a statute.

45
Q

What can the president do if he doesn’t approve of a law trying to be passed by congress?

A

He can veto the bill.

46
Q

If the president Vetos a bill, what option does congress have if they still want to pass the bill?

A

They can initiate a congressional override if with a supermajority vote of 2/3 of the house and senate.

47
Q

What limitations does congress have?

A

Congress may not act outside of its enumerated powers. Any power not granted to the federal government goes to the states. This means that if Congress passed a law in an area that was actually reserved to the states to regulate, Congress would have acted outside the scope of its powers. If challenged, the law would be struck down by a court as unconstitutional.

48
Q

What is legal reasoning? (3 Steps)

A

At its most basic form, legal reasoning involves first identifying the legal question, which is the issue in dispute. Then, the rule of law that applies to that issue is identified. The rule of law may be drawn from precedent, for example, or it may come from a statute or the Constitution.

49
Q

What is precedent?

A

A previous decision made by a court that serves as a basis for decisions going forward. In future cases where the same or similar set of facts and legal issue are presented, the court will typically follow the precedent.

50
Q

Where is “rule of law” drawn from

A

The rule of law may be drawn from precedent, for example, or it may come from a statute or the Constitution.

51
Q

What does F+ IRAC stand for?

A

facts, issue, rule, analysis, and conclusion.

52
Q

What is administrative law?

A

Administrative law consists of rules and regulations enacted by government agencies, created by Congress at the federal level and state legislatures at the state level.

53
Q

What is “Enabling Legislation”?

A

Acts of Congress that create administrative agencies (typically serving under the executive branch of government) to carry out laws passed by Congress. This type of legislation allows the agency to only act consistently with such power to make rules, laws, and decisions as granted by Congress in the enabling legislation.

54
Q

Where do common law decisions have jurisdiction?

A

generally, these decisions are only binding within the geographical jurisdiction they cover.

Business Law (2 decks)

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