EXAM 1 Flashcards
1
Q
What is the modern definition of law?
A
Law, in its generic sense, is a body of rules of action or conduct prescribed by (the) controlling authority and having binding legal force
2
Q
Do changes in law change people’s behavior?
A
Yes. An example is gay marriage was illegal now it’s legal. Or inter racial marriage was illegal and there were laws against it now the laws were seen as unconstitutional thus now any race can marry any race.
3
Q
What government gets power that are not listed in the constitution?
A
The state
4
Q
What happens when the law contradicts the constitution?
A
It’s unconstitutional and its overturned
5
Q
What are the three branches of government?
A
Judicial, Legislative and Executive
6
Q
What do state constitutions do?
A
They are the highest law of the land for state laws
7
Q
Who creates statutory law?
A
Legislatures
8
Q
What is judicial review and how do they use judicial review in federal and state statutes?
A
Judicial review is the courts authority to interpret laws/statues mean.
9
Q
How many statutes get sent to the president each year to be signed into law?
A
200-300
10
Q
what is a bi-cameral legislature and why we use them?
A
A bi-cameral legislature is a two house legislature, it is used to pass unbiased laws.
11
Q
how are administrative agency created?
A
The legislature delegates authority to the executive branch and creates a administrative agency and says this agency can now do these things and be uncharged of this area.
12
Q
To get a dispute resolved by a court, you must bring a case.
A
To get a court to dispute something you must bring a case
13
Q
what does precedent mean in case law?
A
Previous decisions in previous cases.
14
Q
What does Stare Decisis mean?
A
Stands decided. Same way of saying precedent but fancy
15
Q
What are the advantages of the use of precedent in law for businesses?
A
- There’s consistency in the legal system it improves the ability to plan business decisions.
- As a rule is applied in many disputes involving similar facts, people become increasingly confident the rule will be followed in the resolution of future disputes and order business and personal affairs given the rules of law
- The doctrine creates a legal system that neutralizes the prejudice of individual.
16
Q
What are the facts of Davis v. Baugh and what was the outcome?
A
.Davis worked for a company that recently had underground pipes done when there was problems he went down to check it out and the pipe fell and crushed him to death, his doughter sued. Court overturned its precedent they concluded that the doctrine of competition and acceptance is outmoded, incorrect, and harmful.
17
Q
What are the reasons a court may ignore precedent according to the Tennessee Supreme Court?
A
When the prior precedent conflicts with a constitutional provision
18
Q
What is an executive order?
A
An order by the president to do something the president has authority to do
19
Q
What are some examples between public v. private law
A
Contract law is private law
20
Q
What is the difference between the function of criminal law and tort law?
A
Criminal law punishes people who commit wrongs against the government/society. Torts punish people who commit wrongs against other people.
21
Q
What is judicial immunity?
A
Immunity of a judge by decisions made in court
22
Q
What are the facts of Martin v. Smith and what was the holding?
A
Mc fadden was diagnosed with schizofrenia and was given a psychiatrist after coming out of jail but then he murdered someone else and his doughter sued the psychietrist for malpractice “In this case, Dr. Smith clearly served an integral role to the judicial process and we accordingly hold that he is entitled quasi-judicial immunity. “
23
Q
What’s original jurisdiction?
A
Where you must bring the case first. Trial courts
24
Q
What does jurisdiction mean?
A
The authority of the court to hear the case, try the case, and to deicide it.
24
Where do courts get their subject matter jurisdiction?
The constitutions and or statutes
25
What is the basic system for state court systems?
(all states have trials courts, some states have intermediate appellate courts and some do not, all states have a supreme court.)
26
What are the two types of jurisdiction a court must have to render a judgement over the parties?
Subject matter jurisdiction and personal jurisdiction.
27
There's a certain amount of money involved for this court jurisdiction to hear which is it?
Subject matter jurisdiction
28
What is Diversity-of-citizenship jurisdiction? What are the conditions for this jurisdiction?
The purpose for allowing federal jurisdiction when a dispute arises between citizens of different states.
To establish this jurisdiction the parties must show.
1 - They are from different states
2. The amount in controversy must be greater than $75,000 cannot be $75,000 must be higher even if by one cent.
29
When can a state court assert jurisdiction on an out of state defendant?
Minimum contacts.
30
What are some facts and holding of Schoenbeck v. Masterlink?
A farmer died from an accident from equipment bought from another contractor that got it from a company that doesn't do business in the state. Result was that wasn't able to sue in the state because the company didn't have minimum contacts. Would have been able to in the proper state.
31
In the Erie case the rule about what law to apply in diversity cases
| What was the facts of the case?
Federal courts must apply state law. Thus, federal judges must apply a state's common law and a state's statutory law when deciding cases that are in federal court due o diversity of citizenship
Facts -
A man was hit by a train and damaged his arm he sued this happened in pennsylvenia where he was a citizen, the company is based off new york that operates in pennsylvenia, plaintiff brought the case to a New york court the company argued that they use pennsylvenia law but the plaintiff asked for federal common law since it was a diversety of citizenship issue.
31
Name of the type of personal jurisdiction that allows courts to resolve disputes over property in their state.
In Rem jurisdiction (Rem = The thing) [In the thing]
32
What is exclusive jurisdiction?
There are certain things only federal courts can hear.
32
What is concurrent jurisdiction?
Both federal and state court can hear an issue, the plaintiff can pick
33
What is the conflict -of-law rule for torts
Use the tort law of which ever the incident took place.
34
What are the options for responding to a complaint?
1. A motion to dismiss
2. An answer
3. Counter Claim
35
What happens if the defendant does not respond to the complaint?
The plaintiff wins without trial
36
Know what a motion to dismiss for failure to state a claim upon which relief may be granted means
A request that a complaint be dismissed, because it does not state a claim for which the law provides a remedy or is in some
other way legally deficient.
37
What is an affirmative defense?
When the defendent admits to the act but gives additional facts that will help in the defense.
38
What is a compulsory counterclaim?
When your counterclaim comes from the same set of facts
39
What is allowed when answering interrogatories?
You can look things up and talk to your attorney when providing your answers.
40
What was the result of McGill v. BP Exploration
| Give Case facts
Oil spill happened one of the workers sued because he claim to have suffered from pneumonia because of the oil. He lost because his expert witness failed to properly identify the oil was responsible this he was not seen as an expert witness. "For the foregoing reasons, we affirm the district court's summary judgement in factor of BP.
((BP WON))"
41
What must be turned over in production of documents?
Everything
42
What happens when a party does not comply with discovery requests?
There can be fines or be sent to prison over contemp.
43
Can judges strongly encourage parties in trial to settle? T or F
True
44
Attorneys can attempt to challenge any juror they think is biased. T or F
True
45
When will a judge declare a mistrial?
When there's a hung jury. (When they can't come to a decision)
46
Know what a motion for a directed verdict or judgment as a matter of law is.
When the plaintiff has presented the evidence and can't win (When burden of proof wasn't met) they can do a motion to a direct verdict.
47
What are compensatory damages?
Make up for what happened. Put them where they would have been.
48
What was the holding from Clark v. Enchanted Hills Community?
| Provide case facts
Wasn't able to provide proof of damages thus was clark lost.
Facts - The plaintiff wasnt allowed to do business in the community place she asked for damaged but she hadn't earned anything yet thus she had no proof of damages.
49
What is res judicata?
Once a lawsuit has been trialed and been decided it can't be brought up again.
50
What can happen if you don’t cooperate with Arbitrator’s orders?
You lose. They can decide who wins or loses.
51
What was the holding from Epic Systems v. Lewis?
| Provide case facts
The law is clear: congress has instructed that arbitration agreements like those before us must be enforced as written.
Facts - Plaintiff wanted to have collective arbitration that would apply to all employees rather than individual employees involved in a dispute with their employer.
52
What is the commerce clause?
Congress has the authority to regulate interstate business
53
Know the holding of Wickard v. Filburn
| Provide case facts
Tiny amount of interstate commerce still counts for congress to regulate it.
Facts - A farmer set aside wheat to eat with his family every harvest but that still counted as affecting commerce since he would have had to buy from the market which would have affected prices.
54
Know why the Supreme Court found that the restaurant in Katzenbach v. McClung was part of interstate commerce
Half of the meat came from the supplier that came from out of state
55
Know the holding of Southern Railway Co. v. Arizona
Impacted interstate commerce and violated the commerce law. The state cannot impact interstate commerce.
56
Can taxes be used to punish people?
Yes. EX - tabaco tax - Sugar Tax etc.
57
When can a state tax a business' profit?
When the activity that generates the profit takes place in the state then the state can tax it.
58
The First Amendment provides for free speech. T or F
True
59
Untruthful advertisements can be regulated under the First Amendment?
Commercial speech can be regulated
60
Limiting truthful advertisements for professional services violates the first amendment? T or F
True
61
What does the fourth amendment require?
No illegal search and seizures. The government cannot search and detain you without probable cause and a warrant.
62
Know the holding of Marshall v. Barlow.
If there is no warrant they can't search the business
63
What is he exclusionary rule?
Illegally collected evidence cannot be used against you.
64
Does the fifth amendment protect you from self incrimination? T or F
True
65
What does the takings clause mean?
If the government takes your property they must compensate you at market price.
66
Know the holding of Kelo v. City of New London
Takings clause doesn't stop it since they paid the market price then developed the property
67
Know the facts and holding of the Nollan v. California Coastal Commission case
The goverment has to pay the Nollans for the acess to the beach.
68
What is the standard for regulatory taking?
The government only has to pay you if they take away any use of the property to 0.
69
Know what is required for a state to infringe on a fundamental liberty interest
Must have a compelling interest and the regulation is narrowly tailored
70
Know which suspect classifications get higher protection under the Equal Protection clause
1. Race ++
2. National Origin
3. Familiar status
4. Sex (Male or Female)
71
Know the limits Constitutions put on crimes
What crimes exist, and what punishments may be imposed are set within limits set by federal and state constitutions
72
What is a Felony?
A serious crime where you can go to jail for longer than a year.
73
What is an example of a victimless crime?
One way drunk car accident that only the driver is hurt
74
Who decides to bring criminal charges?
The prosecutor
75
Know why politics can come into decisions about which crimes to prosecute
because prosecutors are elected and deal with people who are elected so their politics can come into it. If the mayor son is arrested since its the mayor he wont be prosecuted
76
What is the standard required for a conviction?
Beyond a reasonable doubt
77
What is Criminal Negligence?
A degree of carelessness amounting to a culpable disregard of rights and safety of others. Didn't act the way a reasonable person would act.
78
Know the mens rea for killing someone while drunk driving
Depends on the state.
Some its negligence
Some is recklesness
79
Know the main three rights of the Miranda Rights
1. The right to remain silent
2. The right to an attorney
3. If you can't afford one, one will be appointed to you
80
Know what happens to the statute of limitations if the accused fleas the country to avoid prosecution
It's paused
81
What's an alibi
When you have one or more people to say you were with them when the crime occurred
82
Know what happens if the police obtain evidence improperly
It cannot be used. Exclusionary rule
83
Know what happens if the police mishandle evidence or don’t store it securely and properly
Excluded. Cannot be used
84
Know the elements of Bankruptcy Fraud
Occurs when a person or corporation hides or lies about assets in bankruptcy proceedings. Also applies when creditors are given false information, or when improper pressure is applied to bankruptcy petitioners.
85
Know the elements of Bribery
The offer of or taking of money , good, services, or other things of value to influence official actions or decisions may be bribery.
86
Know the elements of Money Laundering
To avoid charges of income tax evasion, and to report a legitimate source for such income, drug money may be laundered by creating a paper trail that claims a legitimate business origin for the money. Section 1956 of Title 18 is entitled “Laundering of Monetary Instruments.” It states the following:
87
Know the RICO Act
(Racketeer Influenced and Corrupt Organizations) Act
in 1970 to provide an extra weapon against organized crime, such as the Mafia. In practice, RICO has been used in a wide range of actions against persons, businesses, political protest groups, and terrorist organizations. Although aimed primarily at the Mafia, it has broad reach.
88
Know the court’s ruling in S. v. Aboshady regarding the Defendant’s personal emails
The government only took out the things that had to do with fraud and redacted everything that wasn't related.
89
Know why sentencing guidelines were created
So there can be uniformity
90
Know the idea that negligence tort is based on
Torts based on negligence protect people from harm from others' unintentional but legally careless conduct
91
Negligence torts are intended to protect people from what?
Unreasonable conduct
92
Know the definition of the reasonable person standard
What the jury would think a reasonable person would think
93
Know how the reasonable person standard applies to doctors
What would a reasonable doctor would have done. Must act as a reasonable professional
94
Know the definition of proximate cause
Foreseeability. Would a reasonable person have foreseen this
95
Negligence requires two kinds of causation
cause in fact AND proximate cause
96
You will only be liable for negligence if the chain of events and the damages were reasonably foreseeable
True
97
Know the Assumption of the Risk defense
If you the plaintiff knew the risk and still partook in the risk then you cannot sue
98
Know the holding of Schuemann v. Menard
The man understood the risk of his back being hurt yet he still lifted the shed thus he can't sue
99
Know how the comparative negligence defense works
If the plaintiff is partially negligent then the defendants liability is lowered by the plaintiff percentage of fault.
100
In intentional torts, understand the difference between motive and intent
Motive - did you intent the result
Intent - did you intent the action that cause the result (Intent to swing your arm)
101
Know the elements of Assault
There is a fear or apprehension of a harmful or offensive imminent touch
102
Know the defense of Consent
occurs when the injured party gave permission to the alleged wrongdoer to interfere with a personal right.
103
Know the elements of False Imprisonment
the intentional holding, detaining, or confining of a person that violates the protected interest in freedom from restraint of movement.
104
Know the holding from Lawler v. Montblanc North America
Lawler's emotional distress was not severe thus didn't win
105
Is publication of facts already in the public domain an invasion of privacy?
It is not since it's already in the public domain
106
Do entertainers, politicians and sports personalities have the same right to privacy as a non-public figure?
No, they are public figures, they have put themselves in the public eye and the 1st amendment allows us to know more about them
107
Know the elements of defamation
A lie is published
Put forth as a fact
Damages your reputation
(Written is liable)
(Spoken is slander)
108
Know the Truth defense to defamation
If what was said was true then you will lose. It has to be a lie for you to win.
