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Exam 1 Notes Flashcards

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1
Q

What are the Primary Sources of the Law

A

US and State Constitutions
Statutory Law
Administrative Agency Regulations
Case Law and Common Law

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2
Q

What are Secondary Sources of the Law

A

Books and articles that summarize primary sources

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3
Q

Constitutional Law

A

Laws that are in the federal and state constitutions

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4
Q

Statutory Law

A

Laws enacted by legislative bodies at any level of government

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5
Q

Ordinances

A

Regulations passed by municipal governments to address things not covered by federal or state law
Included in Statutory Law

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6
Q

National Conference of Commissioners on Uniform State Laws

A

Founded in 1892
Creates Uniform Laws for states to consider adopting all or part of

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7
Q

Which regulatory bodies use Administrative Laws?

A

Executive Agencies (like FDA)
Independent Regulatory Agencies (like SEC)
State and Local Agencies

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8
Q

Case Law

A

The doctrines and principles announced in cases by judges

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9
Q

What does Case Law cover?

A

All areas not covered by statutory or administrative law

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10
Q

Common Law

A

Basis of our own laws and legal processes
General rules that applied through the English Lands

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11
Q

What are the 3 Remedies under Common Law?

A

Land, Valuables, and Money

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12
Q

What are the Equitable Remedies under Common Law?

A

Remedies that are not a part of the traditional three

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13
Q

Equitable Maxims under Common Law

A

General statements of equitable rules

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14
Q

What are Reporters (not like NY Times)

A

They are the place where case results are published

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15
Q

Stare Decisis Doctrine

A

Judges are obligated to follow precedents established in their jurisdictions

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16
Q

Two main parts of the Stare Decisis Doctrine (READ)

A
  1. A court shouldn’t overturn its own precedents unless there is a good reason to do so
  2. Decisions made by higher courts are binding on lower courts
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17
Q

Binding Authority

A

Any source of law that a court must follow

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18
Q

Persuasive Authorities

A

Legal authorities that a court may consult for guidance that isn’t binding

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19
Q

IRAC Legal Reasoning Method

A

Issue - Articulate the question
Rule - Identify the rules that are applicable
Application - Look at the facts in light of the rules
Conclusion - Not using this in this class

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20
Q

Restatements of Law

A

Compilations of Common Law rules followed by most states and published by the American Law Institute (ALI)

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21
Q

Substantive Law

A

Laws that define, describe, regulate, and create legal rights and obligations

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22
Q

Procedural Law

A

Laws that outline the methods of enforcing the rights established by substantive law

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23
Q

Civil Law

A

The rights and duties that exist between person to person and person to government

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24
Q

Criminal Law

A

Law concerned with wrongs committed against the public as a whole

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25
Q

Unanimous Opinion

A

When all judges agree

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26
Q

Majority Opinion

A

The view of the majority of judges on the case

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27
Q

Concurring Opinion

A

When a judge agrees with the majority opinion but not its legal reasoning

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28
Q

Dissenting Opinion

A

When one or more judges disagree with the majority opinion

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29
Q

Plurality Opinion

A

The opinion of the largest number of judges when no single position is fully supported

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30
Q

Per Curiam Opinion

A

When it is not indicated which judge wrote the opinion

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31
Q

Police Powers

A

State regulatory powers

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32
Q

Privileges and Immunities Clause

A

Citizens of each state are entitled to all priviliges and immunities in several states (Article 4.2)

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33
Q

Full Faith and Credit Clause

A

Rights established under deeds, wills, contracts and other in one state will be honored in all states (Article 4.1)

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34
Q

Commerce Clause

A

Gives the national government power to regulate interstate commerce, including state commerce if it substantially affects interstate commerce

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35
Q

Preemption

A

When Congress chooses to act exclusively in an area, causing a federal statute to take precedence over a conflicting state or local law

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36
Q

Judicial Review

A

When the judiciary branch decides whether the laws/actions of the other two branches are constitutional

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37
Q

Jurisdiction

A

The power to speak the law

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38
Q

In Personam Jurisdiction

A

Jurisdiction over any person on business that resides in a certain geographic area

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39
Q

In Rem Jurisdiction

A

Jurisdiction over property within a courts boundaries

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40
Q

Long Arm Statute

A

When courts exercise personal jurisdiction over certain out of state defendants based on activities that took place in the state (can only be used if the defendant had minimum sufficient contacts with the state)

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41
Q

Limited Jurisdiction

A

Jurisdiction given to courts that only cover specific issues

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42
Q

Original Jurisdiction

A

Jurisdiction of the court that is hearing a case for the first time

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43
Q

Appellate Jurisdiction

A

Jurisdiction of courts reviewing cases after an initial hearing

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44
Q

What are the two times that Federal Courts have jurisdiction

A

Federal Questions
Diversity of Citizenship

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45
Q

Federal Question

A

Whenever a plaintiff’s cause of action is based on either the US Constitution, a treaty or federal law

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46
Q

Diversity of Citizenship

A

When the plaintiff and defendant are from different states and the money in question > $75000

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47
Q

Exclusive Jurisdiction

A

When cases can only be tried in either a federal court or a state court specifically

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48
Q

Concurrent Jurisdiction

A

When both federal and state courts have the power to hear a case

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49
Q

Standing to Sue`

A

Having sufficient stake to justify seeking relief through the courts

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50
Q

3 Elements of Standing to Sue

A

Harm - Plaintiff must have suffered harm
Causation - Causal connection must exist
Remedy - It must be likely that a favorable court decision will help the injury

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51
Q

Do Appellate Courts deal with questions of law or fact?

A

They only deal with questions of Law

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52
Q

District Courts

A

The Federal equivalent of State Trial Courts (one is in each state)

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53
Q

Writ of Certiorari

A

Order issued by the Supreme Court to a lower court requiring them to send a case record to the Supreme Court (issued if 4/9 Justices approve it)

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54
Q

Orders List/Shadow Docket Cases

A

Supreme Court decisions made without hearing and usually without comment by any of the Justices (emergency appeals from parties that believe they will be unrecoverably harmed without a quick response)

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55
Q

ADR Acronym

A

Alternate Dispute Resolution

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56
Q

3 common types of ADR

A

Negotiation
Mediation
Arbitration

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57
Q

Negotiation

A

When both parties talk it out

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58
Q

Mediation

A

When someone is hired to help parties talk it out

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59
Q

Arbitration

A

A formal hearing happens and the arbitrator makes a decision for both parties

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60
Q

Aspects of Arbitration (READ)

A

It can be legally or nonlegally binding
Decisions are called awards
Clauses are protected in most states by statutes
It may be becoming less popular

61
Q

Forum Selection and Choice of Law Clauses

A

In a contract, these designate the jurisdiction where contract disputes will be litigated and which nations law (for international purposes) will be supplied

62
Q

Procedural Rules

A

Rules that specify what must be done at each stage of litigation

63
Q

Federal Rules of Civil Procedure (FRCP)

A

Rules that govern all civil trials in federal district courts

64
Q

Contingency Fees

A

Fees paid to lawyers through a percentage of a client’s recovery amount in certain types of lawsuits

65
Q

Texas Ethics Commission (TEC)

A

Regulates and defines lobbying in the State of Texas
To Lobby one must register with the TEC

66
Q

TEC Lobbying Definition (READ)

A

One who engages in lobbying communications (direct communication to influence legislation) and has lobbying expenditures over certain monetary thresholds (more than $1000 in lobbying compensation and more than $500 in lobbying expenditures)

67
Q

Tiered Court System

A

Highest Appellate Court
Intermediate Appellate Court
Court of Original Jurisdiction/Trial Cout

68
Q

Texas Long Arm Statute for Businesses (READ)

A

Nonresidents have minimum contacts with the state if:
1. They have contracts with a Texas resident and either party is to perform the contract in whole or partly in the state
2. They commit a tort in whole or in part in the state
3. They recruit Texas residents directly or through an intermediary located in the state for employment

69
Q

Supremacy Clause

A

The Constitution is the Supreme Law of the Land

70
Q

Conference Committee

A

The Federal Committee that reconciles the differences between the House and Senate versions of a bill

71
Q

How are Administrative Organizations created?

A

They are created through Acts that detail the organization and give them a termination date where the organization will either be terminated or renewed

72
Q

What 3 things can Administrative Organization do?

A

Promulgate/create laws and regulations
Enforce those laws and regulations
Adjudiate/judges disputes around those laws and regulations

73
Q

Biforcated Court System

A

There are separate court systems for federal and state governments

74
Q

Main differences between the Texas Supreme Court and the Court of Criminal Appeals

A

Texas Supreme Court only hears Civil Trials, while the Court of Criminal Appeals only hears Criminal Trials

75
Q

Forum State

A

The state where a suit is filed

76
Q

3 Litigation Stages

A

Pleadings - Documents are created and the case is issued
Discovery - Learning about the case on both sides
Trial - The trial begins

77
Q

Tort Law

A

Law designed to compensate those who have suffered loss or injury due to a wrongful act

78
Q

Damages

A

Monetary compensation for harm or injury

79
Q

What are the 2 types of Compensatory Damages

A

Special and General Damages

80
Q

Special Damages

A

Compensation for a quantifiable monetary loss

81
Q

General Damages

A

Compensation to individuals (not companies) for nonmonetary aspects

82
Q

Punitive Damages

A

Damages issued to punish a wrongdoer and deter similar actions from others

83
Q

What are the two types of Torts?

A

Intentional and Unintentional

84
Q

What are the 4 Intentional Torts against property?

A

Trespass to Land
Trespass to Personal Property
Conversion
Disparagement to Property

85
Q

Real Property

A

Land and the things permanently attached to the land

86
Q

Personal Property

A

All other items not included in real property

87
Q

Conversion

A

Any act that deprives an owner of personal property or the use of that property without the owners permission or just cause

88
Q

Crime

A

A wrong against society set forth in a statute of limitations

89
Q

Who prosecutes Crimes?

A

Public Officials, instead of Lawyers

90
Q

2 main distinctions for criminal cases

A

Cases must be proven beyond a reasonable doubt
Jury decisions must be unanimous

91
Q

Felony

A

Serious crimes punishable by death or imprisonment for more than one year

92
Q

Misdemeanor

A

Less serious crimes punishable by a fine or confinement up to a year

93
Q

Petty Offenses

A

Minor violations that are a subset of misdemeanors

94
Q

Is Arbitration Binding?

A

Yes, and it functions like a mini trial

95
Q

Main difference in what Civil and Criminal lawsuits result in?

A

Civil suits get you money while Criminal suits punish the wrongdoing

96
Q

Tort Reform

A

Creating laws that disincentive abuse of the tort system

97
Q

Required Intent for Intentional Torts

A

The intent to do the act that results in the harm

98
Q

2 Aspects of Trespassing

A
  1. Physical Contact
  2. Without Consent
99
Q

Prima Facie

A

Literally translates to First Case

100
Q

Affirmative Defense for Trespassing

A

The defendant is not liable because there was justification for the trespass

101
Q

Tortfeasor

A

The one committing a tort

102
Q

Transferred Intent

A

When a defendant intends to harm one individual but unintentionally harms a second person

103
Q

Difference between Assault and Battery

A

Assault is the threat while Battery is the carrying out of that threat

104
Q

Libel

A

Defamation through publishing something that can be seen or heard over and over again

105
Q

Slander

A

Defamation that cannot be seen or heard again

106
Q

4 Parts of Defamation

A
  1. False Statement of Fact
  2. Communication to a 3rd Party
  3. Harm to the Defamed Party
  4. Malice if the Plaintiff is a Public Figure
107
Q

Malice in Defamation

A

When statements are made with knowledge of their falseness or reckless disregard for the truth

108
Q

In Slander cases what must the plaintiff prove?

A

That there was a monetary loss

109
Q

4 Situations that qualify as Slander Per Se and don’t require proof of monetary loss

A
  1. Statement about them having a loathsome disease
  2. Statement about them committing improprieties in their own work
  3. Statement that they’ve been imprisoned for a serious crime
  4. Statement that they’ve engaged in serious sexual misconduct
110
Q

Communications Decency Act (CDA)

A

Internet service providers are not liable for the potentially defamatory content that they have on their servers

111
Q

What type of statements can be defamatory?

A

Statements of Fact only

112
Q

What are the 4 Affirmative Defenses for Defamation?

A

Truth
Qualified Privilege
Absolute Privilege
Consent

113
Q

Qualified Privilege

A

Statements made or viewed by those with a legitimate interest
Doesn’t matter if the statement is made with Malice

114
Q

Absolute Privilege

A

Privilege granted to documents and other things in judicial and government proceedings

115
Q

Interoffice Communication being considered as a 3rd Party Communication depends on what?

A

State Laws
In Texas it is considered 3rd Party Communication

116
Q

2 Aspects of False Imprisonment

A
  1. Intentional Detention
  2. Without Consent
117
Q

3 Parts of Shopkeepers Privilege

A
  1. Reasonable suspicion of shoplifiting
  2. Reasonable manner of detention
  3. Reasonable time of detention
118
Q

Substantially True

A

When the statement made is basically true (ex: “100 cases” vs 98 cases)
Holds up in court

119
Q

Are Facts and Truth considered the same thing in this class?

A

No

120
Q

5 Elements of Negligence

A
  1. Duty of Care
  2. Breach of Duty
  3. Injury
  4. Actual Causation
  5. Proximate Causation
121
Q

Negligence

A

When someone suffers injury because of another’s failure to live up to a required duty of care

122
Q

Reasonable Person Standard

A

How a reasonable person would have acted under the circumstances

123
Q

Malpractice

A

Negligence in a professional setting

124
Q

When are punitive damages given in negligence cases?

A

When the defendants conduct was grossly negligent

125
Q

Good Samaritan Statute

A

Someone who is aided voluntarily by another cannot sue the “Good Samiritan” for negligence

126
Q

Dram Shop Act

A

A bar owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar

127
Q

Social Host Statutes

A

Social hosts can be found liable for injuries caused by guests who became intoxicated at the hosts’ home

128
Q

3 Affirmative defenses for Negligence

A

Assumption of Risk
Superseding Clause
Contributory and Comparative Negligence

129
Q

Assumption of Risk for negligence

A

When plaintiffs voluntarily enter into a risky situation while knowing the risk involved

130
Q

Superseding clause for Negligence

A

When an unforeseeable intervening event breaks the causal connection between a wrongful act and an injury, the defendant is not liable for injuries caused by the intervening event

131
Q

Contributory Negligence

A

A plaintiff who was also negligent cannot recover anything from the defendant
Rarely used today

132
Q

Comparative Negligence

A

Both the plaintiff and defendants’ negligence are computed and liability for damages is lessened for the plaintiff if their % of wrongdoing is under 100%

133
Q

50% Rule for Comparative Negligence

A

Prevents the plaintiff from recovering any damages if they are more than 50% at fault

134
Q

Respondeat Superior

A

Doctrine that says that the principal/employer is liable for any harm caused to a third pary by an agent/employee in the course of their employment

135
Q

Vicarious Liability

A

Indirect liability (employer liable through employee)

136
Q

Are Employers liable for independent contractors?

A

No, unless the contract involves unusually hazardous activities

137
Q

Are employers liable for employees crimes?

A

Not unless they are accomplices to them

138
Q

Are employers liable when employees break regulations

A

They can be

139
Q

3 types of people in Premises Liability Cases

A

Trespasser
Licensee
Invitee

140
Q

Definition and Duty of Care to a Trespasser

A

Someone who is on the premises without permission
Duty is not to injure the trespasser intentionally

141
Q

Doctrine of Attractive Nuisance

A

When a Trespasser is a child, there is an increased requirement of duty

142
Q

Definition and Duty of Care to a Licensee

A

Someone who has authorization to be on the property, but is there for their own benefit, not the owners
Duty is to warn them when there is actual knowledge of a latent/obvious defect on the premises

143
Q

Definition and Duty of Care to an Invitee

A

Someone who is authorized to be on the property and is there for their own mutual benefit and the owners
Duty is to mitigate the risk of unreasonably dangerous defects known through either actual or constructive knowledge

144
Q

Constructive Knowledge

A

Knowledge of a danger that would have been known if there was consistent monitoring

145
Q

For general Negligence, when does a Duty of Care exist?

A

When there is a foreseeable risk that is under the defendants control

146
Q

3rd Party Crime Case

A

When the perpetrator of the crim in question is neither the plaintiff or the defendant

147
Q

5 factors of forseeablility in 3rd Party Crime Cases (READ)

A

Proximity
Publicity
Recency
Frequency
Similarity

148
Q

For Negligence when is an employer liable for the tortfeaser?

A

When they are an employee, and they do the negligence while acting under the scope of their employment

149
Q

For Intentional Torts when is an employer liable for the tortfeasor?

A

When they are acting under the scope of their employment (covers employees and contractors)

Business Law (4 decks)

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