Exam 1 Flashcards
How does the law classify the following objects:
- a garage
- a concrete foundation
- a house
- the land
- the lumber, drywall and shingles in sacks when delivered
- the lumber, drywall and shingles in finished product
- the lumber, drywall and shingles after tornado destruction
- GM stock certificate
- Stock certificate of company that does not exist anymore and is collectors item
- real
- real
- real
- real
- personal tangible
- real
- personal tangible
- personal intangible
- personal tangible
Three elements to consider if item is a fixture
- How attached is the item in question?
- Effect of removal on:
a. the item itself
b. the surrounding real property - Closeness/relatedness of use between item and real property
Personal Property
- Moveable
- Can be tangible or intangible
- Everything that isn’t real property
Real Property
- Permanent/Immovable (Tangible)
- Land and anything firmly attached to it
- Fixtures
Tangible Property
-has a physical existence (can be seen, felt and touched)
Intangible Property
-Ideas, Accounts Receivable, other items of economic value but without physical existence (songs, stories, lectures & stock)
Is property stuck in its original classification?
No, it can move through any classification
How should you view property?
As a bundle of rights
- What is Eminent Domain?
- What qualifications need to be met to take the property?
- Is Eminent Domain the same in every state?
- a floating community right hovering above property that may be used if community needs private property for public use and government is willing to pay for it
- Public Purpose & Public Necessity
- No, it varies from state to state
-Property Right Components and Question To Satisfy With Them
- Property Rights Component: Do you have legal ownership of the item in question
- Regulatory Component: Is there anything else effecting the ownership of the item in question
Easement
Allowing someone the right to cross over your land subject to the original terms
- Bailment
- Two persons involved and what they are
- Legally borrowing something
- Bailor (lender) and Bailee (receives the loan)
System to answer essay questions
IRAC Method I: State the Issue R: State the Legal Rule A: Apply the Rule C: Conclusion in Probabilities with no Absolutes
Supremacy Clause
Federal laws take precedence to State laws and even State Constitutions
Complaint
Pleading asking court for some type of relief, states nature of claims P has against D
Answer
Response to the complaint, D states response to each individual allegation
Summons
Tells the D to come to court
Discovery
eliminates surprise at trial, must turn over everything that is not privileged, tells what is going on in the case, encourages settlement
Deposition
discovery tool when interrogations are conducted under oath (can be used to impeach a witness, or file that they committed a false claim if they change their story, semi-replaces testimony)
Interrogatories
discovery tool where submissions of written questions are to be answered under oath
Dilatory Tatics
discovery tool where delays and continuances are used to make the case more expensive/get rid of the other party
Settlement
an alternative dispute resolution used after you have already filed a complaint (case on docket) and parties come to agreement without trial
Arbitration
an alternative dispute resolution where third party helps settle dispute that is a binding contract
Mediation
an alternative dispute resolution that is usually voluntary, but can sometimes be court ordered. makes decisions somewhat an agreement rather than a ruling. can make contract afterwards if necessary. focuses on parties needs and is not binding without a contract
Methods of Statutory Interpretation
- Plain Meaning (dictionary definitions)
- Legislative History (look at what was the intent/purpose of the passing the law when the law was still a bill)
- Spirit of the Law (why was statute passed and what was purpose, does not have to be in the history)
Who does constitution give power to
federal government
Legislative Branch
- Congress- Creates federal statutes
2. State Legislature- Creates state statutes
Executive Branch
- Federal- President and All Federal Law Enforcement (Enforces federal laws)
- State- Governor and All State Law Enforcement (Enforces State Laws)
Judicial Branch
- Federal- US Supreme Court and All Federal Courts (Interprets Laws)
- State- State High Court and All State Courts (Interprets laws)
Ways to Change the Constitution
Amendments (rare) Judicial Decision (precedent/stare decisis or use of past to interpret how to rule in current case)
Eras of the Constitution and Their Time Periods
- Pre-Civil War Era
- Civil War until Great Depression
- Great Depression until 1990s
- Current
Era 1
a) Time period
b) Theme
c) Description
- Pre-Civil War
- Decentralization
- Tired of king, more power to state govts., no abuse of power
Era 2
a) Time period
b) Theme
c) Description
- Civil War until Great Depression
- Categorization of Powers
- Federal govt has power but it is categorized into spheres
1) States the Federal Govt Powers (Commerce Clause)
2) States the State Govt Powers (Health and Safety)
3) States the Individual Powers (Liberty of Contract)
Era 3
a) Time period
b) Theme
c) Description
- Great Depression until 1990s
- Rise of the Positive State
- National Problem (great depression) needed dealt with and it was effecting everything, federal govt had to do something, the needed more power, they became a protector of individual rights versus when we took away that power from the king who abused it
Era 4
a) Time period
b) Theme
c) Description
- Current
- Neo-Decentralization
- Starting to go back to more state govt rights/power, less power in federal govt, fed govt allowing boundaries to be placed on commerce clause
Civil War Amendments
13, 14 and 15
Created in Era 2
Commerce Clause
- ) limits state ability to erect trade barriers
2. ) provides constitutional basis from which federal govt (congress) enacts regulations on businesses
