Exam 01 Flashcards
Law
formal rulings of courts and the laws enacted by legislatures
key function of a legal system
encouraging social stability
resolving conflicts without violence
There must be a supreme court was stated in what
the U.S constitution
when a court decides a common law case it usually relies on what?
precedent
Law applied and made by judges
common law
when the president and Congress both agree to bind the United States to a treat
law of the nation
When a court issues a decision, especially a court of appeals, the decision is likely to be reported where?
In a case reporter
authoritative secondary source of law. Who is it used by and who is it produced by
often used by courts, is referred to as the Restatement of Law produced by the American Law Institute.
What laws are included in Private Law
Contract law
Agency law
Murder or homicide is classified as what kind of offense
felony
Medical malpractice and defamation are examples of what?
Civil law
what does the public hold to the highest esteem
small business
Integrity
integrity can be defined as living by a moral code and standards of ethics
Codes of compliance
To reduce the severity of penalty in case of prosecution by the government, many companies have adopted
How does government improve social stability by influencing behavior
Legal system helps define social behavior; restricts activities that damage “public interest;” restricts business practices believed outside of ethical norms; & encourages certain social and political goals.
Conflict Resolution
Businesses turning to formal private settlement techniques – alternative dispute resolution systems outside the courts
what does the U.S constitution establish
Fundamental law of the land
Establishes Legislative, Executive and Judicial Branches of government
state constitutions
they create Legislative, Judicial and Executive Branches of state governments
what do legislators create
Federal Laws
State Laws
Municipal Laws
Who makes statues
congress
what does statute name
administrative agency
Where does Judiciary and Common Law come from
comes from old English system.
precedent
Legal principles from cases is called
Stare Decisis.
making a decision based on past cases
Common law who is it passed by
Unlike statutes, it is not passed by a legislative body and is not a specific set of rules; rather, it must be interpreted from the many decisions that have been written over time.
Where are civil roots most often from
rome
three ways civil law is different from common law
are inquisitorial rather than adversarial.
are code-based rather than case-based.
are influenced more by academic experts than by practicing lawyers.
How does the president have control over administrative agencies
appoint agency heads and order duties they undertake.
Firms in other countries are subject to what
those countries’ laws.
Code Law
Most countries use codes not common law
Substantive
law that defines the rights and duties of persons to each other, as opposed to procedural law, which is law that defines the manner in which rights and duties may be enforced.
Procedural
the rules of the court system that deal with the manner in which lawsuits are initiated and go forward. Court systems generally have rules regarding pleadings, process, evidence, and practice.
Compliance Programs
management tools for avoiding legal problems or reduce possible punishment.
Dept. of Justice (DOJ)
emphasizes importance of corporate “compliance programs”
Judicial Immunity
you are not able to sue the judge
What are the appellate courts concerned with
the application of the law at trial
making sure proper procedure was followed in the trial court proceeding
The court of federal claims
. The court that hears suits for money filed against the federal government is
court of international trade
The court that hears cases involving customs and tariffs disputes
the most common trial court in the federal court system
district court
If a party is not satisfied with the decision of a federal trial court what do they have the right to?
there is a right of appeal for any party
udicial officials who assist U.S. district court judges in many matters, and may be assigned to hear cases, are called:
magistrates
Small claims courts cannot hear disputes involving more than what
$10,000
what do most states not have
intermediate courts of appeal
a state court of limited jurisdiction, such as a municipal court, hears a case and a party to the case is unhappy with the result, there can be:
a trial de novo at a district or trial court
The party who claims to have suffered an injury that the law can remedy and brings an action in court is referred to as
the plaintiff
What do most court systems use to help guide civil proceeding
Federal Rules of Civil Procedure
Lower courts: Courts of Original Jurisdiction
What are they known as?
deal with issues of what?
Where disputes are initially brought and tried
Generally known as trial courts
Determine issues of fact
Apply law to the facts for resolution
Appellate Courts: Courts of Appellate Jurisdiction
Where lower court decisions are reviewed
Look at issues of law
Who nominates federal judges
the president
how long is federal judges term
life time
How can federal judge be removed
only if Congress impeaches them (intricate impeachment process and rarely happens)
What does job security of federal judges guarantee
that judges are independent and free from political pressure
Stated judges serve what kind of term
fixed term
How many district courts
94
How many courts of appeals
12 courts
U.S court of appeals have how many panels and deal with what
3 judge panels deal in issues of law and review most decisions
En banc proceeding
means all active judges in a circuit will a hear a case (small number of cases done this way)
How much jurisdiction does specialized federal courts have
limited jurisdiction
Where do the court of appeals for the federal circuit take appeals from
U.S. District Courts in patent, trademark and copyright cases
U.S. Court of Federal Claims
U.S. Court of International Trade
U.S. Tax Court
Highest court in the country
u.s supreme court
what does the u.s supreme court review cases from
U.S. District Courts
U.S. Courts of Appeals (primary source of cases)
Highest Courts of the States
what does “Writ of Certiorari” deal with
Often deal with Constitutional decisions
what if writ is not final
, lower court decision is final
State court of “Original Jurisdiction
Where case is first brought; deals in issues of fact
State Supreme Court
Second appellate review dealing with issues of law
Who is able to develop their own procedural rules
states
Jurisdiction
Right of a court to hear and decide the case
What does the court need jurisdiction over
subject matter
persons or property
Jurisdiction (literal)
power to speak the law
What court must the plaintiff select
Subject-matter jurisdiction
Created by constitution or statute
and
Personal jurisdiction over
The person of the defendant
or
The property of the defendantWhat is federal court jurisdiction derived from
the U.S constitution
Diversity of citizenship jurisdiction
Cases involving citizens of different states or from another nation:
If there is not a particular subject matter, case goes?
general trial court
Courts of original jurisdiction
where case is first brought
courts of appellate jurisdiction
where lower court decisions are reviewed
If there is no jury?
judge decides the facts and applies the law
Long-arm Statutes
Protects states’ citizens from business defendants who do business in the state and then leave
Jurisdiction over corporations
State in which corporation is established
State where has business headquarters or main plant
State in which entity is doing business
When is jurisdiction not appropriate
business contact with state is only informational.
In rem jurisdiction
JURISDICTION OVER PROPERTY
What if property moves to another state
no in rem jurisdiction
Examples of federal courts jurisdiction
Federal crimes Bankruptcy Patents Copyrights Federal questions
Exclusive jurisdiction of congress
by statue in federal court
Examples of state jurisdiction
Divorce
Adoption
Matters controlled by state government
Supremacy of federal law
state jurisdiction cannot infringe on federal jurisdiction
concurrent jurisdiction.
Federal and state courts have exclusive jurisdiction over some matters
If plaintiff chooses state court, defendant may have right to remove what?
federal court
If plaintiff files suit in defendant’s home state court, defendant cannot move cases where
to federal court
law of the relevant state
Courts apply law of state “with most significant interests” to the outcome
Contract cases
Laws of state in which contract was made will be applied, if contract did not specify the governing law.
Tort cases:
injury or physical harm to a person
Basic Trial Procedures
order
leading Stage
Discovery Stage
Pretrial Stage
Trial Stage
Appellate Stage
Enforcement Stage
THE PLEADINGS STAGE
Complaint
Service of
Process—notifying the defendant
Answer—defendant’s response to complaint
Complaint
Alleges facts for jurisdiction and basic facts Requests remedy(ies)
Responses to Complaint
Motion to Dismiss (Demurrer) By defendant Answer (may include affirmative defenses – usually by defendant) Counterclaim Reply
Purpose of Discovery
Legal Tools to Obtain Evidence
purposes to purpose of discovery
Purposes to 1) preserve evidence, 2) limit element of surprise, 3) encourage settlement
Court may sanction a party who fails to comply with discovery requirements.
Default Judgment
Contempt of court (fines, pay costs to the other party)
Summary Judgment which party can request? who renders it?
either party may request
Judge renders it
Pretrial Conference: what helps why does it help
Simplify issues
Plan course of the trial
Judges gets parties to drop non-key parts of case
Helps to focus on key issues
Judges may encourage parties to reach out-of-court settlement
6th and 7th amendment give right to what
to a jury in criminal and common law cases.
What if no jury is used
judge becomes trier of fact
voir dire
jury selection
TRIAL STAGE: what are the 6 stages?
Opening Statements by attorneys
Direct Examination, Cross Examination, Redirect Examination, Re-Cross Examination
Closing arguments
Verdict by Jury
Remedies for Monetary damages
Compensatory
Punitive or exemplary
Nominal
Equitable remedies
Specific performance
Temporary Restraining Order
outcome of appellate stage
Affirmed
Modified
Reversed
Remanded
judgement is final if what
If no further appeal is available
res judicata
judgment is final
writ of execution.
Enforcement of judgment
NEGOTIATION
Parties decide to perhaps settle matter.
MEDIATION
3rd neutral person (mediator) assists the parties of the dispute.
Parties mutually decide on a resolution.
Mediator makes suggestions.
Mediator’s suggestions not binding on the parties.
Parties may go to trial after this ADR.
Mediation may help to maintain the relationship between the parties.
who is supreme in regulating business
Federal Government
who can regulate foreign trade and interstate commerce
congress
who has power to : “Regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
congress
Necessary and Proper Clause
Constitution lists specific Congressional powers and grants
Federal Supremacy
federal government actions take precedence over actions of other governments
federal regulation takes president over what
state regulation
states may not enact laws that burden what?
Interstate commerce
Who can ceos not tesfify against? who must they testify against
Themselves
the business
Eminent domain
the right of governments to condemn private property for public uses
Crime
Positive or negative action that violates a penal law
who decides punishment possibilities
congress
Actus reus
the guilty act
Mens rea
criminal intent
Affirmative Defenses
Even if prosecution’s claims are true, other facts prevent the claims from constituting the crime.
Statute of limitation
you are only good to bring up a case over a certain time frame from when it happened
Entrapment
Law enforcement sets a trap to lure someone into committing a crime he/she had no intention of committing
What must law enforcement officials show to obtain a warrant
probable cause
Arraignment
court appearance of the accused (before a judge or magistrate).
what type of law has parties do their own investigations?
criminal law
exculpatory evidence
Evidence that may show defendant is not guilty
Double jeopardy
prevents a defendant from being tried a 2nd time for same criminal charges
what happens if jury cannot agree on verdict
and prosecutor will decide whether to proceed again.
three ways to to be in the federal court
federal question
diversity jurisdiction
there is exclusive jurisdiction
State courts are referred to as what
general jurisdiction
Long arm statue
Permits a state to exercise jurisdiction over nonresident defendants
Conflict of laws
parties from different states have different laws.
removal
defendant brings a lawsuit filed in state court and brings it to state
venue
where the lawsuit happens
Forum Non Convenient
change in different court systems
