Exam 1 Flashcards
Jurisdiction
- the difference between federal and state courts are defined mainly by jurisdiction
- refers to kinds of cases a court is authorized to hear
-concurrent jurisdiction= when action could give rise to both a federal and state case
Commerce Clause
•an enumerated power listed in US Constitution
•states that US Congress shall have power:
“to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
Concurrent Jurisdiction
When an action could give rise to both a federal and state case
Felony
- max. sentence if convicted is 1 year+ in prison
- more significant crimes
- jury of 12
Misdemeanor
- max. sentence if convicted is less than 1 year
- crimes, but less serious
- jury of 6
Separation of Powers
- 3 branches of govt
* separation of authority between national and state govt
3 Branches of Government
1) legislative- Congress (senate + house of rep)
2) executive- President
3) judicial- Supreme Court
Bill of Rights
A non-exhaustive list of our rights as people
Venue
• where you can properly file a lawsuit(?)
•location where case is tried (criminal or civil)
–not jurisdiction, not about who’s authority case falls under, but about physical place
Statute of Limitations
Sets max. Time after an event that legal proceedings based on the event may be initiated
Arbitration
Process of resolving a dispute or grievance outside of the court system by presenting it to an impartial third party
•an alternative to the govt. sponsored forum for dispute resolution
Evidence
A degree of proof required in cases
Criminal Law
Focus is about crime and punishment •society criminalizes behavior that we wish not to tolerate •we thus seek to deter certain behavior •try to safeguard rights of accused •burden of persuasion on govt.
Civil Law
Anything not criminal in nature
•law of contracts, property, torts, employment, divorce, inheritance, tax, etc.
•govt. still has important roll in promoting civil law
-forum for resolution of disputes
-enforcement of these resolutions
(Standard) Burden of Proof
Standard which must be met for win/conviction
CRIMINAL
•beyond a reasonable doubt
•jury must be persuaded of guilt to level beyond probability (2/3)
•govt. is responsible for meeting this standard
CIVIL
•preponderance of the evidence
•slightly more evidence on one side (50.1%)
•plaintiff is responsible for this proof
Statutory Law
Representative pass law in form of statutes and codes
- ALL criminal is statutory
- some civil law is statutory, most is common law
Common Law
- courts make new law based on the way they (judges) interpret the law
- MUCH of civil law is common law
- case law
US Constitution
-ratified in 1789
-established the federal govt. as we know it
-limits power of federal govt.
•enumerated powers
•article 1, section 8
Commerce Clause
Enumerated power of federal govt. listed in Constitution
-to regulate commerce amongst the several states
Police Powers
All other powers not enumerated in constitution were reserved for states
•known collectively as the police powers
•contracts, property, business associations, liquor liability
•10th Amendment
Federal Court System
Primarily engaged in addressing disputes that arise out of federal law
- National govt. is one of limited authority
- lawsuits against the United States and those involving specific federal laws: criminal, antitrust, bankruptcy, patent copyright, and crimes against US govt.
- when federal govt. takes action, it’s supreme to state laws
State Court System
Addresses all other disputes not under jurisdiction of federal law
- “the powers not delegated to he United States by the Constitution, nor prohibited by the United States, are reserved to the States”
- have broad jurisdiction
- individual cases citizens involved in are: robberies, traffic violations, broken contracts, family disputes, etc.
Jurisdiction
Differences between federal and state courts are defined mainly by jurisdiction
-refers to kinds of cases a court is authorized to hear
Authority
-federal vs. state, etc
TYPES OF LAW | Constitutions
Set of government structure and prevent other units from passing laws
TYPES OF LAW | statutes
Acts as part of legislature
TYPES OF LAW | common law
Law made and applied, leading to precedents
TYPES OF LAW | equity
Accomplishes “rough justice”
-injunctions, specific performance, reformation, rescission
Bill of Rights
A non-exhaustive list of our rights as people
First 10 Amendments to the Constitution
•adopted almost immediately after constitution was ratified
•balance against power of the govt.
Burden of Persuasion
WHO must bear the standard of proof in a case
- who must prove their version of the facts
- criminal: prosecutor
- civil: plaintiff
Contract Elements
-a legally enforceable agreement between 2 or more competent parties to do or not do something that is possible to be done, that is not unlawful, and which is supported by consideration
2 or more parties
-MSU English can’t sue MSU math because they are 2 branches or same party
Competency
- age 18 in all states
- when a minor enters a contract its a voidable contract
It’s a perishable item or a necessity it can’t be cancelled
Agreement
- offer and acceptance
- must be at same time
- acceptance must mirror offer
Statute of Frauds
-a law that requires certain contracts to be in writing, signed by the party to be charged, with sufficient content to evidence the contract
- nothing prohibits a contract from being in writing
- written contract supersedes oral statements
-it is enforceable to say “any agreement between parties must be in writing”, but most are NOT in writing
Injunction
Order to stop doing something
Competition
Specific Performance
Remedy for Breach
-person who did not follow the contract may be asked to perform a certain performance or produce what was promised
- contract case (put them back into original financial state)
- Mural example ($1000 means nothing… Paint the mural)
6 Types of Agreements in Writing
1) involves an interest in “real property”
2) for sale of goods that exceeds $500
3) for sale of services that exceed $5000
4) in contemplation of marriage
5) contract cannot be fully performed in 1 years time
6) agreements to pay debt of another person
Promissory Estoppel
When a person believes that a promise will be upheld (even though a contract isn’t in place)
- promissory estoppel put in place to prevent injustice
- fairness measure
An argument made when something with the contract isn’t complete (one party didn’t sign)
-and the court can allow you to get your money back for what you put into the agreement (advertising, initial cost, etc.)
Motions to Dismiss
Saying something just to hurt the view of another
-ex: Scott steals sweater and I want jury to hate him so I say he hates gays… Information Dismissed
Appeals Court
Criminal and civil have automatic right to appeal
-right of appeal when someone loses a case
Make sure law was properly followed at trial
“Remanding the case” means to send it back down
Trial Courts
- every case begins here
- to resolve A FACT DISPUTE
- to determine facts and turn jury
- decision made based on court
- lowest level of court
Juries
- Ask them to determine the facts not the law
- juries are society’s representative
- judge determines the law
Breach of Contract
2 forms
1) nonperformance
2) unreasonable performance - inadequate, performance hasn’t met reasonable expectations
Hearsay
- Statement made out of court and not under oath which is offered as proof that what is being proposed is true
- second hand evidence which the witness is not telling what he/she knows personally, but what others have said to them
Remedies for Breach of Contract
-Legal & equitable remedies
Types
1) money/economic damages (most civil suits)
2) specific performance
3) injunction
Basic premise is to set things right, essentially make the situation what it would/should have been if there were no breach of contract
Civil Disputes
- generally looking for money
- brought by an individual
- rarely involves punishment
Criminal case
Only the govt. can bring a criminal case
-individual may go to police, but govt. must charge someone and prove guilt to jury for conviction
Unlawful action
Not illegal, just unlawful
- ex: breaking contract, liability, etc.
- don’t go to jail
Criminal action
Breaking a code, found guilty and sent to jail for your action
All business transactions are based upon ?
Contract law
Liquidated damages
Contracts will sometimes include what the economic damages will be if the contract is breached
- these are liquidated damages
Arbitrator
Neutral third party who reviews all relevant information and issues the final decision in favor of one of the parties in process of arbitration
Elements of a Contract
1) offer
2) acceptance
3) legal purpose
4) mutuality of obligation
5) authorized to enter a contract
6) certainty of the subject matter
Contract Elements
1) consideration
2) manifestation of intent to uphold the contract
3) agreement
Contracts required to be in writing (statute of frauds)
1) property or land
2) purchase of a good over $500
3) service to be performed greater than $5000
4) marriage
5) when someone agrees to pay the debt of another person
6) when a service takes more than 1 year to be performed
Compensatory Damages
What is remedy intended to fix, remedy is intended to compensate injured party so that it’s like contract wasn’t breached in the first place
Penalties
Specify a certain amount to be paid in the event of a default or breach of contract
- also designed to penalize the breaching party
- that’s how it’s different than liquidated damages
Specific performance
- Equitable remedy to breach of contract
- calls for the performance of the act promised in contract
- remedy in cases where consideration is:
1) unique
2) scarce, or
3) not available remedy in contracts for personal services
Economic damages
Money provided to compensate for money lost on an objective standard (ex: wages lost)
Non Economic Damages
Money paid to compensate for damages that can’t be objectively quantified
(Ex: pain and suffering)
