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BLaw > Exam 1 > Flashcards

Exam 1 Flashcards

1
Q

Categoris of Law

A

Criminal
Civil
Substantive
Procedural
Public
Private

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2
Q

Criminal Law

A

Protection of society

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3
Q

Civil Law

A

Compensate parties for loss or damage

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4
Q

Substantive Law

A

Individual rights and duties

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5
Q

Procedural Law

A

Structure of rules for pursuing rights

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6
Q

Public Law

A

Established by a government entity

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7
Q

Private Law

A

Arising from private agreement

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8
Q

Primary Sources and Levels of American Law

A

-Much of American law is derived from English legal doctrines
-It is generally a combination of constitutional law, statutory law, administrative law, and common law at the federal, state, and local levels (primary sources)

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9
Q

Primary Sources of American Law

A

Satutory
Administrative
Common

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10
Q

Administrative Law

A

-Autherizes the exercise of authority by executive branch and independent agencies
-Administrative agencies: administer detail of statutes. Have broad power to impose regulations, make policy, and enforce law in a designated area.

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11
Q

Common Law

A

-Essentially law made by the courts, i.e, law that has not specifically been passed by the legislature but is based on the fundamentals
-Precedent: when courts apply the law of a previous case to surrent cases with similar facts

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12
Q

Statutory Law

A

-Created by legislative body
- Bill: draft or propoosed statue that a legislature has not yeat passed or the exedcutive has not yet approved
-Levels: federal statutes, state statutes, and ordinances (local government)

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13
Q

Law and Equity

A

-Remedies: judicial actions to compensate for civil legal injury
-Remedy at law: generally money damages
-Equitable relief- award bt court to “make a party whole” (e.g., injunction, specific performance)

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14
Q

Stare Decisis and Precedent

A

-Stare Decisis: similar cases with similar facts and issues should have the same judicial outcomes
-Lower courts, such as trial courts, must follow case precedent
-Once an appellate court has decided a particular case, the decision becomes case precedent
-Trial courts apply precedent by making use of key statements from earlier judicial opinion, known as the holding of a case.

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15
Q

Morals

A

Generally accepted standards of right and wrong in a given society or community

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16
Q

Narrow view “Greed is Good”

A

-Milton Friedman
-Only responsibility is to maximize shareholder wealth
-Friedman argues that pursuing social

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17
Q

Moderate view “just follow the law”

A

-Ethical responsibility is to comply with the law and pursue objectives that are leagal
-It is government’s job to establish legal and regulatory guidlines for business
-Government already represents aggregate moral vs of the public

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18
Q

Broad view “good corporate citizenship and a social license to operate”

A

-Aim to achieve commercial success in ways that honor ethical vlaues and respect people, communities, and the natural environment in a sustainable manner while recognizing stakeholders
Social license to operate- includes the demands on, and expectations for, a business that emerge from heighborhoods, environmental groups, community members, and other elements of civil society
-Triple bottom line: conventional creation of economic value (profit) + creation (or destruction) of environmental and social value

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19
Q

National Power

A

-Coin Money
- Regulate interstate and foreign trade
-Raise and maintain ramed forces
-Declare war
-Govern U.S. terttitories and admit new states
-Conduct foreign relations

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19
Q

Structure of the U.S. Constitution

A

-Preamble: more perfect union, justice, domestic tranquility, national deense, general welfare, liberty
-7 articles: Article 1 is legislative, Article 2 is executive, Article 3 is judicial
-27 subsequent amendments: Bill of right (first 10 amendments)
-Structural features: federalism, seperation powers

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20
Q

Checks and balances

A

Congress has the power to impeach th epresident and federal judges

21
Q

The Bill of Rights

A
  • Firth 10 Amendments to the U.S. Constitution
  • Strategic precommitment: imposition of limits on federal government powers by enumerating in writing in advance a specific set of guarantees and individual rights
    -Incorporation: use of the fourteenth amendment by courts to apply portions of Bill of RIghts to state and local governments
22
Q

First Amendment

A

-Religion, speech, press, assembly, petition of government
-Protections against the government, not private business firms
-Constitution often requires interpretations
-

23
Q

Second Amendment

A

-Right to bear Arms
-Protects individual right to possess and carry firearms

24
Q

Third Amendment

A

Prohibits government from housing soldiers in private homes without homeowner’s consent

25
Q

Fourth Amendment

A

-Prohibits unreasonable searches and seizures
-Exclusionary rule: evidence obtained in violation of fourth amendment is genreallly inadmissible in crimin trials
-Physical search: governmental employee of governement agent violates individual’s reasonable expectation of privacy
-Physical seizure of person: not free to ignore police and leave at will
-Physical seizure of property: some meaningful interference with individual’s possessory interests in the property

26
Q

Fifth Amendment

A

-Procedural fairness and property rights
-Places limits ahead of time on exercise of grand jury
-Requires felonies be tried only upon indictment of grand jury
-Protects individuals from being compelled to be witnesses against themselves in criminal cases
-Prohibits double jury
Due process clause

27
Q

Sixth Amendment

A

-Criminal defendants rights
-Speedy and public trial before impartial jury
-Be informed by government of charges against them
-Cross-examine government witnesses
-Be represented by a lawyer

28
Q

Seventh Amendment

A

Right to a jury trial in most federal civil cases

29
Q

Eighth Amendment

A

Prohibits: execcisve bail, excessive fines, cruel and unusual punishment

30
Q

Ninth Amendment

A

Federal government may not infinge or take away any rights belonging to the people, regardless of whether those rights are specidically listed or enumerated in the constitution

31
Q

Tenth Amendment

A

-Federalism: U.S. contains two seperate sources of political power (states and federal government). Powers not delegated to the federal government are retained by the states
-Popular sovereignty:

32
Q

Due Process

A

-Fifth (federal Governemnt) and Fourteenth Amendment (state governement)
-No person shall be deprived “life, liberthy, or property, without due process of law”
Procedural

33
Q

Equal Protection

A

-Fourteenth Amendment (state government) and U.S. Supreme Court precedent (federal government)
-Government must treat people who are similarly situated equally

34
Q

Standards of Review

A

-Rational basis: economic and regulation and tax-related law
-Intermediate scrutiny: gender discrimination
-Strict scrutiny: fundamental constitutional rights, “suspect” classification

35
Q

Amending the Constitution (Art. V)

A

Two steps
-proposa
-ratification

36
Q

Constitutional Interpretation
Originalism
Living Constitution

A

-Fixed and stable meaning of words in constitution until and unless formally amended under Art. V.
-Constitution is not fixed or static but rather dynamic and flexible.

37
Q

State Trial Courts

A

-Plaintiff (brings lawsuit) V. defendant (alleged violator)
-General authority (geographic district or limited)
-OFten civil division and criminal division

38
Q

U.S. District courts

A

-Sever same primary trial function as state trial courts but address: federal matters, and matters that involve parties from different states and that meet other jurisdiction
-At least one federal district court in each state and District of Columbia
-Some federal courts specialize in certain areas of law (tax court, court of international trade)

39
Q

Judicial Selection

A

-Federal Judges (Article III): Nominated by the presidednt to apply law as decided by a higher court with lifetime appointments, unless removed through the impeachment process.
-State judges (varies by state): Appointment, election, and hybrid method

40
Q

Applying Precedent

A

-Binding authority
-Persuasive authority
-Distinguishable cases

41
Q

Binding Authority

A

Lower court is required to apply law as decided by a higher court with authority over the lower court

42
Q

Persuasive authority

A

courts may look to the decisions by either lower courts or appellate courts outside their own geographic authority exists on a particular legal issues (case of first impression)

43
Q

Distinguishable cases

A

If a lower court deviates from binding precedent on a settled legal difference from the precedent cases

44
Q

Jurisdiction (court has to have both)

A

-Subject matter Jurisdiction: authority over the dispute
-Personal jurisdiction: authority over the parties

45
Q

Out-of-state Defendants

A

-Authorized by state long-arm statute
-Exercising jurisdiction meets constitutional requirements of fairness and due process (regularly shipping products to consumers in that state)

46
Q

Minimum Contacts and the Internet: Zippo Standard

A

-Passive
-Interactive
-Integral to Business Model

47
Q

Passive

A

Non personal jurisdiction. Passice website that provides information that can be accessed by any internet user cannot be the sole basis for personal connection. Like a billboard advertisement

48
Q

Interactive

A

Case-by-case. Website provides users with some interactive function whereby users may exchange information, purchase products, download or upload material via the website, or engage in activity beyond merely viewing the content of the website. Court must examine interactivity more closely with focus on the interactivity level and commercial nature of the website.

49
Q

Integral to Business Model

A

Minimum contacts established. Use of the website is an integral part of the business model and the website is used to accomplish commercial transactions with residents in the state of the court’s jurisdiction (amason.com, netflix/com)

50
Q

Typical state statutes

A

civil case is where the defendant resides or is headquarter criminal case is where crime is committed

51
Q

Change of venue

A

Sometimes requested for very high-profile criminal cases to select jury from outside the area where the crime was committed under the theory that the out-of-area jury will be more impartial and less influenced b media

BLaw (3 decks)

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