EXAM 1 Flashcards
What is the modern definition of law?
Law, in its generic sense, is a body of rules of action or conduct prescribed by (the) controlling authority and having binding legal force
Do changes in law change people’s behavior?
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.
What government gets power that are not listed in the constitution?
The state
What happens when the law contradicts the constitution?
It’s unconstitutional and its overturned
What are the three branches of government?
Judicial, Legislative and Executive
What do state constitutions do?
They are the highest law of the land for state laws
Who creates statutory law?
Legislatures
What is judicial review and how do they use judicial review in federal and state statutes?
Judicial review is the courts authority to interpret laws/statues mean.
How many statutes get sent to the president each year to be signed into law?
200-300
what is a bi-cameral legislature and why we use them?
A bi-cameral legislature is a two house legislature, it is used to pass unbiased laws.
how are administrative agency created?
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.
To get a dispute resolved by a court, you must bring a case.
To get a court to dispute something you must bring a case
what does precedent mean in case law?
Previous decisions in previous cases.
What does Stare Decisis mean?
Stands decided. Same way of saying precedent but fancy
What are the advantages of the use of precedent in law for businesses?
- 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.
What are the facts of Davis v. Baugh and what was the outcome?
.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.
What are the reasons a court may ignore precedent according to the Tennessee Supreme Court?
When the prior precedent conflicts with a constitutional provision
What is an executive order?
An order by the president to do something the president has authority to do
What are some examples between public v. private law
Contract law is private law
What is the difference between the function of criminal law and tort law?
Criminal law punishes people who commit wrongs against the government/society. Torts punish people who commit wrongs against other people.
What is judicial immunity?
Immunity of a judge by decisions made in court
What are the facts of Martin v. Smith and what was the holding?
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. “
What’s original jurisdiction?
Where you must bring the case first. Trial courts
What does jurisdiction mean?
The authority of the court to hear the case, try the case, and to deicide it.
Where do courts get their subject matter jurisdiction?
The constitutions and or statutes
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.)
What are the two types of jurisdiction a court must have to render a judgement over the parties?
Subject matter jurisdiction and personal jurisdiction.
There’s a certain amount of money involved for this court jurisdiction to hear which is it?
Subject matter jurisdiction
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.
When can a state court assert jurisdiction on an out of state defendant?
Minimum contacts.
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.
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.
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]
What is exclusive jurisdiction?
There are certain things only federal courts can hear.
What is concurrent jurisdiction?
Both federal and state court can hear an issue, the plaintiff can pick
What is the conflict -of-law rule for torts
Use the tort law of which ever the incident took place.
What are the options for responding to a complaint?
- A motion to dismiss
- An answer
- Counter Claim
What happens if the defendant does not respond to the complaint?
The plaintiff wins without trial
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.
What is an affirmative defense?
When the defendent admits to the act but gives additional facts that will help in the defense.
What is a compulsory counterclaim?
When your counterclaim comes from the same set of facts
What is allowed when answering interrogatories?
You can look things up and talk to your attorney when providing your answers.
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))”
What must be turned over in production of documents?
Everything
