Exam 1 Flashcards
Review for Exam 1
What is the book definition of Law?
A set of principles, rules, and standards of conduct that:
- Have general application in society.
- Have been developed by an authority.
- Have an associated penalty imposed on violations.
What are the basic functions of Law?
- Keep the peace.
- Enforce rules to maintain order.
- Facilitate planning.
- Promote social justice.
Civil legal Systems
Structured legal system around statutes.
Common Law legal systems
Court decision become binding law.
What is the legal system in the U.S.?
Common Law
Parties in cases in Civil Law?
Plaintiff v. Defendant
Parties in Criminal Law
Government v. Defendant
What is the difference between Procedural and Substantive laws?
Procedural laws deal with legal processes. How courts and laws are administered. Substantive laws deal with rights, duties, and privileges.
Name the sources of law from most to least
- Constitution
- Statutes
- Judicial Decisions
- Private Law (Contracts)
- Other (Treaties, Executive Orders etc.)
How is a statute created?
It is created through legislature
What does the term Stare Decisis mean?
“to stand by things decided.” Court decisions set precedent for the law.
What Articles in the Constitution outline each branch of government?
Articles I, II, and III
What are the terms and requirements for the House of Rep.?
25 years old, 7 years as U.S. citizen, 2-year terms, unlimited terms
What are the terms and requirements for the Senate?
30 years old, 9 years as U.S. citizen, 6-year terms, unlimited terms
What are the terms and requirements for the Supreme Court?
9 justices, appointed by the President, confirmed by the Senate, and serve a life term.
What are the terms and requirements for the President?
35 years old, natural born citizen, and 14 years as U.S. resident
What president has served multiple terms beyond the current term allowance?
FDR
What is the function of each branch?
Legislative = laws, declare war, and confirm justices
Executive = enforce laws
Judicial = evaluate laws
Simple process of impeachment?
House writes articles of impeachment
Senate holds a trial for impeachment
Which presidents have been impeached?
Donald Trump (abuser of power/obstruction of Congress)
Bill Clinton (lie under oath in Lewinsky scandal)
Andrew Johnson (violation of Tenure of Office Act)
(Nixxon came close)
Have any impeached President been convicted and removed from office?
No, but Andrew Johnson was close.
What offenses may a President be impeached?
bribery, treason, misdemeanors
Powers exclusively granted to the Federal government?
coin money, declare war, interstate commerce, taxes
Powers reserved to the States?
Everything else not exclusively granted to the Federal government (intrastate commerce, eminent domain, and police powers)
What is Federal Preemption?
The Federal government had the ability to pass law and States cannot pass conflicting laws against Federal laws.
What is an example of Federal Preemption
Arizona v. The Inter Tribal Council
What is the Commerce Clause?
The Federal government has the power to regulate interstate commerce.
What is the Dormant Commerce Clause?
States can only pass laws regulating intrastate commerce
What did the Court rule in Wickard v. Fuldburn?
The Court held the Commerce Clause against Wickburn for growing and holding crops.
Takings Clause
5th Amendment provision that forbids private property from being taken for public use without just compensation.
What is Eminent Domain?
State right to take private property for public use.
Elements of constitutional taking under Takings Clause?
- Taking
- Public purpose
- Just compensation
Difference between Procedural Due Process and Substantive Due Process?
Procedural means the same rules apply for everyone. Substantive means the same rights apply to everyone.
What is commercial speech?
Includes speech used by organizations such as advertising. Courts use intermediate scrutiny for this type of speech.
What is the advantage of non-commercial speech?
Greater constitutional protection under the 1st. Courts use strict scrutiny analysis
What is Strict Scrutiny?
Under this analysis, the statute is unconstitutional unless the government demonstrates that it is pursuing a compelling governmental interest in the least intrusive manner.
What are the 3 types of scrutiny?
Strict, intermediate, and reasonable basis test
What is the difference between the cases of New Hampshire “Live Free or Die” license plates and coins with “In God we trust”?
The Court ruled “Live Free or Die” restricted speech since it was required on the plate to drive. Courts ruled coins are not publicly displayed and does not command action.
In interpretation of a law, Court generally…
- Look to plain meaning of the language
- Examine legislative history of the rule
- Consider the purpose to be achieved
- Try to accommodate public policy
What happens when Courts consider Plain Language?
If the language is clear, there is no need to continue to other theories of interpretation.
How does Constitutionality mean in terms of interpretation?
Laws under interpretation are presumed to be constitutional. Choose the interpretation that is constitutional, given other options.
What does Date of Application refer to during interpretation?
Means a rule cannot be retroactive (e.g. not ex post facto)
How do Courts handle Conflicting Statutes?
- Most recent prevails over the older statute OR
- Go with the more specific language over broader language.
What is the difference between Attorney-Client Privilege and Work-Product Privilege?
Attorney-Client protects communication and Work-Product protects documents.
What are the limitations of Attorney-Client Privilege?
- Does not cover communication in the presence of people other than the lawyer/subordinates.
- The Crime-Fraud Exception
When does the Crime-Fraud Exception occur?
- The client was engaged in (or was planning) criminal or fraudulent activity when the attorney–client communications took place AND
- The communications with the lawyer were intended by the client to facilitate or conceal the criminal or fraudulent activity.
What is the defining attribute of Trial Courts?
Only trial courts decide facts.
Which courts are Inferior Courts?
- Not Courts of Record
- Include municipal courts (or justice of the peace in rural areas)
- Small claims courts
What does a jury do?
Determine facts of the case
What is the role of facts/law in appeals?
You can only appeal issues of law, not facts.
What is the structure of the court system, generally? Indicate when State & Federal naming is different.
- Supreme Court
- Court of Appeals
- Trial Courts (“Superior” in State and “District” in Federal)
What is a writ of certriorari?
“to be made certain.” The Supreme Court is also not required to take a case.
What is Legal Standing?
The right of a person to be subjected to/file a lawsuit.
Personal Jursidiction
Ability of a court to reach the defendant. Answers what state the case should be filed in.
Subject Matter Jurisdiction
Answers what type of court to be in for the lawsuit
Venue
Answers “Can the county reach me?”
What is forum non coneniens?
Case can be moved to another county (forum) for convenience.
What are the types of Pleadings?
- Complaint
- Summons
- Answer
- Reply
What is Discovery in a lawsuit?
Process by which to obtain evidence from the other party.
Describe Interrogatories and Depositions
Interrogatories are written questions with answers in writing, under oath. Depositions are an examination under oath in the presence of the attorney of the other party.
What is the difference in the burden of proof in a Criminal vs Civil case?
Criminal = beyond a reasonable doubt
Civil = preponderance of the evidence
What is mens rea?
“the guily mind.” Element of serious crimes that refers to some idea in the mind the crime committed is wrong.
Can a case be a tort and a crime?
Yes. State for the crime and victim for the civil.
Can a criminal and a tort case be filed against the defendant or must it be one or the other?
No, both cases can be filed. Double Jeopardy only applies to crimes.
What is ex post facto law?
“from a thing done afterward.” Laws can’t be passed to punish someone for a crime that wasn’t considered a crime before the passing of the law.
Can corporations be convicted of crimes?
In modern law, yes. However, since they cannot serve jail time, punishment comes in other forms such as fines, probation, or forfeit property.
What is RICO?
Racketeer Influenced and Corrupt Organizations act. Passed to stop the entry of organized crime into legitimate businesses. Under RICO, racketeering carries Civil Liability.
What is a prima facie case?
“at first sight.” The case meets tort elements (the burden of proof)
What are the types of damages do Courts award?
- Consequential - losses that result indirectly as a further consequence of the act.
- Punitive - designed to punish the defendant.
- Incidental - expenses the buyer incurs in receiving, inspecting, transporting, and storing goods shipped by the seller that do not conform with those called for in the contract.
- Compensatory (main) - direct losses to be made whole. Often base damages.
What is the burden of proof in most tort cases?
Preponderance of the evidence
What is Battery?
harmful or offensive contact with people without their consent.
What is the difference between Assault and Battery?
Assault does not require touch.
How much time is required for False Imprisonment?
an appreciable amount of time. Generally, only a few minutes.
What is the modern view in Shoplifting cases in relation to False Imprisonment?
If the manager has reasonable suspicion, they may stop the suspect for a reasonable amount of time. Some states have conditional privilege laws.
What is the requirement for Intentional Infliction of Emotional Distress?
Extreme and outrageous behavior
Is Defamation treated differently for public figures?
Yes. In the case “Bertrand v. Mullin,” court added the requirement that for Actual Malice (disregard for the truth). Public figures can’t complain about publicity that is reasonably related to their public activities.
Personal property Trespass requirements…
- Harms property
- Deprives possessor of its use for an appreciable time
Trespass & Stickdorn v. Zook
Court held the smell of Zook’s manure was trespass.
What is special about Negligence as a tort?
Requires no intent
What are the four elements of Negligence?
- Duty
- Breach of Duty
- Causation
- Damages
Which standard is used for duties and breaches?
Reasonable person
How do intervening parties play into Negligence?
Effects the “reasonably foreseeable” aspect of negligence.
What is an Eggshell Plaintiff?
The defendant must take the plaintiff as they are, even if they had a pre-existing condition that could have made them more vulnerable or incur higher degree of damages.
What is the Last Clear Chance rule?
Negligence is determined by who had the last chance to avoid damages.
What is Strict Liability?
Legal responsibility placed on an individual for the results of their actions, irrespective of whether he or she was culpable or at fault.
What are two common examples of strict liability?
- Animals (Joe Exotic)
- Dangerous products (Table Saw)
