EXAM 1 Flashcards
3 Primary Functions of Law
Maintain stability, Protect private property, preservation of state
Stare Decisis
the legal principle of determining points in litigation according to precedent, “to stand by the decisions”
Litigation
“legal action”
State Court System (low to high)
- Inferior Trial Courts
- State (District) Courts
- State Intermediate Court of Appeals
- State SC
Federal Court System (low to high)
- US District Courts
- US Intermediate Court of Appeals (Circuits)
- US SC
What circuit is CA in?
9th
What circuit is TX in?
5th
Right Definition
Capacity of a person and law to require another person to perform/not perform a certain act
Duty Definition
Obligation imposed by law upon a person to perform/not perform a certain act
Constitutional Law
Adopted by each govt entity
Legislative Law is enacted by:
Elected officials
4 Types of Legislative Law:
Statutes, Treaties, Executive Orders, Local Government
Statutes Definition:
Formal written law
Who creates Administrative Law?
Government Agencies
Common Law deals with:
Civil Disputes
Common Law must be ___________ and ___________
Stable, Predictable
When must a court follow precedent?
Lane, Same System (or highest in other)
Judicial Restraint
USSC must follow USSC, free from personal beliefs
Jurisdiction:
Authority to make a binding decision on parties involved
2 Pre-Reqs for Jurisdiction:
Subject Matter AND Over the Parties
4 Exclusive Federal Examples:
Bankruptcy, Federal Crimes, Trademarks, Lawsuit vs. US
Concurrent
State and Federal Systems have jurisdiction to hear the case
Individual vs Entity
1 state/country vs 1+ state/country
Principal place of business for _________________ is their entity
Corporations
To have diversity:
Citizenship AND >$75,000
☆☆☆ PROCESS TO FIND JURISDICTION ☆☆☆
Subject Matter
1. Federal Exclusive?
2. Concurrent
i. federal question
ii. diversity
3. State Exclusive?
In Personam
1. “Resident”
2. Agreement
3. Long Arm Statute (“minimum contacts”)
In Personam Jurisdiction
Over person/entity
In Rem Jurisdiction
Over property in the state
Quasi in Rem Jurisdiction
Attachment
4 Steps in Litigation Process:
- Pleadings
- Pre-Trial Procedure
- Trial
- Post-Trial, Appeal
Question of Law example:
Will _________ be presented to the Jury?
Question of Fact example:
Was it raining?
QoLaw decided by _______ at ____________________
Judge, Trial and Appeals Court
QoFact decided by __________ at ____________________
Finder of Fact, Trial Court
2 Types of Alternate Dispute Resolutions:
Arbitration (binding), Mediation (non-binding)
Who owns communications?
the client
Waiver means info is:
Disclosed to a 3rd party
Privileged Communications:
Between attorney and client concerning legal advice
Work Product Communications:
Between attorney and client in anticipation of litigation
Statute of Limitations:
Lawsuit must be filed within a certain period of time
Federalism (C)
Constitution gives enumerated powers to federal govt
Supremacy Clause (C)
Valid Federal Law > Conflicting State Law
Preemption (C)
Partial (enforceable), Wholly (invalid)
Judicial Review (C)
Verifies constitutionality
State Action (C)
Non-govt individuals infringing on constitutional rights
Entity rights are __________ individual rights
less than
Resident vs Citizen
Resident is ONE place, Citizen is MULTIPLE
Govt can violate fundamental right if there is a ____________________
VALID REASON
Rational Relationship
Easy for Govt to violate
Strict Scrutiny
Hard for Govt to violate
Intermediate
Kinda Hard for Govt to violate
Commerce Clause
Federal Govt has broad and exclusive power to regulate commerce
Interstate
Between states
Intrastate
Within a state
Eminent Domain
Could take private property if they pay “just compensation”, notice, and opportunity to be heard
Example of Administrative law
Agencies given power by Congress
3 Enabling Statute Powers:
Rulemaking, Investigation/Enforcement, Adjudication of Controversies
3 Types of Rulemaking
Legislative (enforceable), Interpretive (guidance), Procedural (Process necessary to enact a rule)
5 Steps for APA Rule-Making Process:
- Rule developed
- Notice
- Hearing
- Agency Votes
- Publish Final Draft
How many days for a rule to go into effect?
30 days
