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exam 1 Flashcards

1
Q

constitutional law

A

supreme law of the land the basis for all law in the United States
any law conflicting with the Constitution can be challenged and declared unconstitutional

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2
Q

tenth amendment

A

all powers not granted to the federal government in the Constitution are reserved to the states

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3
Q

federalism

A
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4
Q

dual sovereignty

A

unless a state law conflicts with a federal law a state constitution is supreme within the state

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5
Q

the separation of powers

A

to make it more difficult for the national government to use its power
the legislative branch makes the laws
the executive branch enforces the laws
the judicial branch interprets the laws
each branch performs a separate function and no branch may exercise the authority of another branch

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6
Q

article 1 section 8 powers

A

lay and collect taxes
regulate commerce with foreign nations and amount several states
to declare war

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7
Q

commerce clause

A

+ the national govcernment has the exclusive authority to regulate commerce that substantially affects trade and commerce among states
- the states do not the authority to regulate interstate commerce

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8
Q

the heart of atlanta motel 1964

A

civil rights act upheld because of the commerce clause “the power of congress to promote interstate commerce also includes the power to regulate the local incidents of commerce including local activities”

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9
Q

article 2: executive branch powers

A

commander in cheif of armed forces
power to make treaties with senate approval
nominates heads of departments and federal judges needs senate approval to appoint
issue executive orders
pardon fedal offenses
veto legislation (2/3 congress vote)

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10
Q

electoral college

A

consists of a selection of electors the meetings of the electors where they vote for president and vice president and the counting of the electoral votes by congress

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11
Q

how many electors are there how are they distributed among the states

A

consists of 538 electors a majority of 270 electoral votes is required to elect the president you state has the same numbers of electors as it does members in its congressional delegation
one for each member in the house of representatives plus state senators

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12
Q

article 3 judical branch

A

no term limit
the judicial power of the united states shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish the judge both of the supreme and inferior courts, shall hold their offices during good behavior and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office

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13
Q

article 4 the full faith and credit cluase

A

states must respect and enforce judgements of other states

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14
Q

1st amendment

A

congress shall make no law respecting and establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances

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15
Q

1st amendment: freedom of speech

A

right to free speech is the basis for our democratic government laws that restrict the content of speech must have compelling government interests
commercial speech is given less protection than noncommercial speech under the constitution
free speech also includes symbolic speech including gestures movements articles of clothing
not protected clear and present danger-threatening call to incite violence defamation obscenity
expression is subject to reasonable restrictions there is a balance between government’s obligation to protect and citizens’ exercise of rights
Content-neutral laws: laws that regulate the time manner and place but not the content of speech receive less scrutiny by the courts

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16
Q

state action doctrine

A

does a constitutional amendment apply to this situation
defendant must be the government if not the judge will dismiss because no state action

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17
Q

role of attorney

A

adovocate for client (ligitation is adversial)

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18
Q

attroney compenstation

A

defendant’s lawyer:usually hourly
plaintiffs lawyer: hourly fees or contingency fees ( personal injury
criminal cases: prsectuors and public defendants are government employees

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19
Q

parties

A

civil: plaintiff and defendant
criminal: prosector and defandant

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20
Q

judge

A

rule on matters of law
interprets law and applies to the trial reviewable on appeal

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21
Q

jury

A

rules matter of fact based only on evidence admitted in court during trial

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22
Q

trial court: original jurisdiction

A

discovery
judge presides
live witnesses
jury (considers only evidence presented)

23
Q

appellate court: appellate jurisdictions

A

losing side in trial court can appeal
no jury no witnesses
no new evidence this is a review of the trail court
judge can modify remand or confirm
losing side may appeal to highest court

24
Q

appellate judical decisions are precedent

A

highest appellate court
intermediate apellate court
trial court ( not precedent)

25
structure of the federal courts
us supreme court (highest court of appeals cert is discretionary) us circuit court of appeals (first appeal ) us district court (trial)
26
appellant
files the appeal
27
appellee
responds to the appeal
28
pre trial court procedures
complaint service of process: formal delivery of complaint and summons to the defendant answer: may have counterclaim andor cross ocnplaint discovery: interrogatories, requests for productions, depostiotns, testimony is given under oath, depoent may be parties or witnesses, not used in lieu of in court testimony
29
class action lawsuits
allows for a single lawsuit to resolve a dispute with a very large number of similar plaintiffs
30
jury selection/ voir dire
start with a pool of prospective jurors questions by attorneys, attorneys may chellenge/remove/strike jurors for two reasons: for cause challenge and peremptory challenges
31
us supreme court precedent outlawed peremptory challenges based on
race and gender
32
basic judical requirements
before a lawsuit can be brought before a court the following requirements must be met jurisiction- the court has authority to hear the case venue- the court is in the proper geographic location standing to sue- this plaintiff is the proper party to bring the lawsuit
33
jurisidiciton
the authority of a court to hear a case and decide a specific action
34
before a court can hear a case, it must have jurisdiction over
the person/company against whom the suit is brought (defendant) or over the property involved in the suit the subject matter of the dispute
35
long arm statue
a state statute that permits a state to obtain personal jurisdiction over nonresident defendants a defendant must have minimum contacts with that state ex: incorporated in the state, has its principal office in the state, is doing business in state
36
subject matter jurisdiction
the court has juridiction to hear this type of case this determines whether you are in federal or state court
37
original (trial court) and appellate juridiction (appeal courts)
this distinction between the two nomally lies in whether the case is being heard for the first time courts having original jurisdiction are courts of the first instance or trial courts courts having appellate jurisdiction at as reviewing or appellate courts
38
subject matter jurisdiction: federal question
a question that pertains to the us constitution acts of congress or treaties
39
subject matter jurisdiction: diversity jurisdiction
under article III section 2 of the constitution a basis for federal court jurisdiction over a lawsuit between citizens of different states a foreign country and citizens of a state or different states or citizens of a state and citizens or subjects of a foreign country and the amount in controversy must be more the $75000 before a federal court can take jurisdiction is such cases
40
venue
the geographical district in which an action is tried and from which the jury is selected venue in a civil case typically is where the defendant resides or does business venue in a criminal case normally is where the crime occurred
41
standing to sue
the requirement that an individual must have a sufficient stake in a controversy before they can bring a lawsuit standing can be broken down into three elements harm- the party bringing the action must have suffered harm- and invasion of a legally protected interest or must face imminent harm causation- there mus the a causal connection between the conduct complained of and the injury remedy- it must be likely as opposed to merely speculative that a favorable court decision will remedy the injury suffered
42
alternative dispute resolution
the resolution of disputes outside the traditional judicial process mediation arbitration advantages to adr: cost,time, flexibility/control, privacy
43
mediation
neutral thrid party facilitates settlement mediation is nonbinding unless the parties voluntarily agree to a settlement agreement if parties agree to settle the dispute, they sign a contract called a settlement agreement mediation often required by judges before a trial date can be scheduled
44
arbitration
the settling of a dispute by submitting it to a disinterested thrid party who renders a decision the decision is usually binding ways parties agree to arbitration after the disputes arises in a contract before a dispute arises
45
corporate social responsibility: four-part decision-making analysis
legal: implications pr: public relations impact safety: risks for consumers and employees money: financial implications
46
professional code of ethics
some preofessions are requied to adhere to a code of ethics which applies to the licensed practitioners within the profession such as attorney cpas and doctors
47
company code of ethics (policy)
most companies have a code of ethics as part of company policy not laws but internal rules to indicate how employees are expected to act violations may result in employee discipline up to termination of employment
48
responsible corporate officer doctrine
a court may impose criminal liability on a corporate officer who participated in directed or merely knew about a given criminal violation
49
embezzlement
person in position of trust fraudently appropriating corporate property
50
mail and wire fraud
using mail commerical carriers telephones television internet with intent to defraud public/consumers
51
bribery
offering something of value in exchange for/ to exert illegal influence
52
insider trading
occurs when an insider buys or sells securities based on nonpublic information tipping off someone else, and also illegal
53
statute of limitations
the statutory time limit for prosecuting a crime has run
54
immunity
defendant will not be prosecuted and in exchange waives 5th amendment right against self-incrimination

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