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BLaw > Exam I > Flashcards

Exam I Flashcards

1
Q

The legislative branch creates law through ?

A

statutes

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2
Q

The executive branch creates law through?

A

Executive Orders
Administrative law
Enabling Acts

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3
Q

The judicial branch creates law through?

A

interpreting the law and setting precedent for laws

creates and changes

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4
Q

At the federal level, the three branches of government are empower by the ________________ to create law.

A

US Consitution

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5
Q

Explain the importance of the consitution

A

everything fits within its rule
no law can conflict with it
foundation of all laws within the US

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6
Q

Def: Preemption

A

nothing can conflict with federal constitution or it becomes void

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7
Q

Constitutional Law

A

U.S and States have laws and powers given to them in these docs

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8
Q

Statutory Law

A

Created by legislature at the federal and state level

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9
Q

Def: common law

A

law created by courts; interprets in the absence of a law or precedent; net that catches or fills in the gaps

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10
Q

Def: Stare Decisis

A

“let the decision stand”

aka precedents are used to make rulings on future cases

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11
Q

The shrinking common law??

A

The federal gov is creating more statutory laws so common law has less to judge/rule/interpret

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12
Q

Why is common law so important?

A

Tech/medical where everything changes so quickly that statutory law cannot keep up

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13
Q

What are the four major reasons for having a legal system?

A
  1. manage conflict and maintain order
  2. provide a forum fro settling disputes
  3. protect expectations regarding personal and property rights
  4. to facilitate social change and equality
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14
Q

Common Law’s Breif History

A
  • roots to Rome
  • mainly evolved in England 1066AD
  • America adopts this system based off the Common Law of England
  • 49/50 states have today (not LA)
  • other countries first colonized by England usually have this law
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15
Q

What happened in 1066AD to create common law??

A
  • Invasion of England & people didn’t want the influence of a supreme leader like Napoleon
  • Henry II
  • the actual experiences of judges were used to create law (keeper of the king’s conscience)
  • people appealed to magna curia (these judges)
  • distrust of one main power led to division of powers
  • Things built on top of these basic rules and principles (coral analogy)
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16
Q

What are the six main characteristics of Common Law?

A
  1. Due Process
  2. Presumption of Innocence
  3. Right to jury and lawyer
  4. Right to a speedy trial
  5. double jeopardy
  6. Right to have your day in court
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17
Q

Does stare decisis hold between the states?

A

Stare decisis holds if precedent set at the federal level or within a state.

Other state’s stare decisis does not apply outside of its borders

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18
Q

Is congress held to the same standard of stare decisis?

A

Nope! they can do whatever they want

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19
Q

How were Courts of Chancery or Equity established?

A
  • 16th century England noticed they needed to reform the common law because it was becoming over strict and rigid
  • Choice remedies granted to create equity aka equitable remedies
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20
Q

What are equitable remedies?

A

remedies/commands with NO MONETARY value

equity aludes to fairness

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21
Q

What are some examples of equitable remedies?

A

recision of a contract
injunctions to stop an action
restraining orders

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22
Q

Civil Law Legal System?

A
  • deductive reasoning
  • from a general rule a problem is addressed and solved
    (these rules and codes are made by the legislative body)
  • judges can NOT make law, just interpret an existing law
  • laws are written broad on purpose to allow judges ability to interpret meaning
  • gave the US Communal Property Law
  • use of jurisprudence constante (case law based on existing rule)
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23
Q

Public Law

A
  • involves gov. in some form
  • can involve both civil and criminal actions
  • criminal law is always public law
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24
Q

Private Law

A
  • tort law! between citizens

- corporations fall under this

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25
Q

Criminal Law

A
  • offenses against the state
  • punishment, protects society, deters, rehabilitates crime
  • burden of proof needed without a reasonable doubt!!
  • more protections under criminal law (lawyer, miranda, jury, etc.)
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26
Q

Civil Law

A
  • private usually
  • Seeks remedies and NOT punishment
  • Looks for breach of contract or tort
  • legal remedies = $
  • command remedies = equitable remedies
  • burden of proof on the plaintiff as a preponderance of evidence
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27
Q

Substantive Law

A
  • Creates laws and duties

- defines legal relationships

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28
Q

Procedural Law

A
  • Creates rules and processes

- how rights and duties are informed

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29
Q

What are enumerated powers?

A

allows gov to regulate commerce between states

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30
Q

State’s Police Powers

A

the things they’re allowed to regulate outside of the US constitution
health, safety, welfare, morals

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31
Q

Commerce Clause

A

Art. 1 Sec. 8 US Con.

regulation of commerce with foreign nations, among states, and with indian tribes

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32
Q

Gibbons v. Ogden

A

Boats
Marshell states that the CC is between and amongst the states
intermingled - moving across state lines in some way
Created the interstate vs. intrastate doctrine

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33
Q

Where does the affectation theory come from?

A

1920’s industrialization

SCOTUS says congress can regulate anything that affects interstate commerce even if its within a state’s borders

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34
Q

Who was Roscoe Filburn and why is he important?

A

challenged affectation theory with wheat farming against the AAA

SCOTUS says gov. can regulate, ushers in era of being able to broadly apply rules

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35
Q

Civil Rights and Affectation Theory

A

Hotel v. US
claim that discrimination causes undue burden on industry in the south and the people that are subjected to it

end jim crowe laws

36
Q

Commercial clause is federal subject matter if:

A

state law conflicts with federal law b/c supremacy clause

37
Q

Commercial clause is local subject matter if:

A

no duel regulation law governs

38
Q

Commercial clause (dormant) is duel regulation if:

A

Federal law does not preempt a state regulatory law unless:

  1. the state law conflicts with federal law
  2. the state law causes undue burden on interstate commerce
  3. discriminates against interstate commerce in favor or intrastate commerce (ex. milk)
39
Q

def: Judicial review

A

SCOTUS interpreting what the constitution means (they have final say over this)

40
Q

What does it take to get an amendment overturned?

A
  1. 2/3rds house and senate

2. ratified by 3/4th (38) state legislatures (gets hung up here)

41
Q

Only 4 amendments, what are they?

A

11th - suing across state borders
14th - citizenship for blacks
16th - income tax
26th - voting age from 21->18

42
Q

Selective incorporation

A

using pieces of the Bill of Rights to pass laws

ex. freedom of speech regulations on it
ex. Right to a lawyer

43
Q

Political speech and corporations

A

protected
citizen’s united v. federal election commission
allowed to donate money as a form of freedom of speech to presidential and congressional candidates

44
Q

What are the exceptions to freedom of speech?

A
  1. lewd/obscene
  2. profane
  3. libel & slander
  4. fighting, insulting, dangerous, words
45
Q

Advertising and the freedom of speech

A

less protected
Gov’t has to prove:
1. substantial gov interest
2. the regulation advances that interest
3. manner is not extensive than necessary for that interest

46
Q

Can a case involving federal law be heard in a state court?

A

Yes, as long as it is not exclusively reserved for Federal courts

47
Q

What types of cases are reserved specifically for the federal courts?

A
  1. federal crimes
  2. patents
  3. copy rights
  4. suits against the US
  5. Bankruptcy
  6. Federal antitrust
48
Q

What are the 3 basic things you need for judicial review?

A
  1. Jurisdiction (person, subject matter)
  2. Standing of the parties (were they really involved)
  3. Justiciable aka ripe for review
    * *call to action**
49
Q

How can you call someone into a different state court?

A
  1. presence in state by doing business there
  2. contracting someone within that state
  3. commission of a tort in a state
50
Q

What are the six steps in the litigation process?

A
  1. complaint
  2. Answer
  3. Discovery
  4. Trial
  5. Appeal
  6. Class action
51
Q

Alternative Dispute Resolutions (ADR)

A

alternative to court b/c $$$
do this when juries may be bad for you
time and secrecy kept
subsequent litigation still possible after

52
Q

ADR - Negotiation

A

may have lawyer
understanding your opponent
not binding unless a contract is involved

53
Q

ADR - Mediation

A

lawyer plays active role and keeps confidential info
reduce posturing
Not binding

54
Q

ADR - Arbitration

A

formal, extensive, and binding
efficiency advantage for businesses in time and money
less flexible than litigation

55
Q

Why do we like arbitration?

A

Federal Arbitration Act favors in the US

Saves time and money and courts time too!

56
Q

Arbitration required in these 4 cases:

A
  1. small claims/divorce
  2. safeguards/procedures
  3. De Novo court review
  4. constitutional issues - due process considerations
57
Q

Def: tort

A

a civil wrong that is NOT a breach of contract

58
Q

What are the 3 categories of torts??

A
  1. intentional
  2. negligence
  3. strict liability

all involve injury against persons and property

59
Q

intent

A

results which are subsequently likely to follow from an action
some do/don’t require malice or specific intent to harm another
mistake or sanity is not an excuse

60
Q

Torts against people

A 
assault
battery 
infliction of mental distress
invasion of privacy 
false imprisonment
citizen's arrest 
defamation
fraudulent misrepresentation
61
Q

Assault

A

tort - placing a person in immediate apprehension of fear

62
Q

Battery

A

tort - offensive or unjustified touching of another person without content

defense - protection of self or others, privilege, or consent (hockey)

63
Q

Invasion of privacy

A

tort - appropriate of another’s name, intrusion, or disclosure of private info

64
Q

false imprisonment

A

tort - intentional, unjustifiable confinement that is non-consenting

65
Q

4 components of defamation

A

tort -

  1. false statement
  2. publication/3rd party
  3. damages/loss
  4. malice/reckless disregard for the truth

defense - truth, privileged communication

66
Q

Tort remedy

A

compensatory or punitive damages

67
Q

contract remedy

A

economic loss, recission of contract

68
Q

Fraudulent misrepresentation (3 parts)

A

tort

  1. misrepresentation of a material fact
  2. intent to deceive
  3. justifiable reliance on the misrepresentation
    ex. house with leaky roof
69
Q

Trespass to Chattles

A

temporary interference with exclusive rights of use or enjoyment

ex. joy riding or keying a car
- physical contact not needed
- dispossession
- impairs condition

defense - permission or in self defense

70
Q

4 elements needed to prove negligence

A
  1. duty of care
  2. breach of duty of care
  3. causation
  4. injury
71
Q

def: duty of care

A

a duty exists when the average reasonable person would recognize the existence of an unreasonable risk to others

determines 3; was it forseeable

72
Q

Limits to duties owed: must help if….

A
  1. family
  2. you caused the situation
  3. its your job to help
  4. you began to help and then backed out
73
Q

How do you calculate fault??

A

B

74
Q

Causation in fact

A

the injury would not have happened if it wasn’t for the defendants negligent act

75
Q

Proximate cause

A

was the harm of the victim foreseeable at the time of the incident (palsgraf)

76
Q

Special compensatory damages

A

cover medical bills, lost of future income, etc.

77
Q

General compensatory damages

A

pain and suffering that occurred

78
Q

Contributory negligence

A

behavior of the plaintiff contributes to the harm resulting from the defendants initial negligence

79
Q

What are the 2 defenses to negligence?

A
  1. contributory/comparative negligence (objective)

2. assumption of the risk (subjective)

80
Q

Comparative negligence

A

shared cause/blame = get certain percentage of the damages based on your involvement in causing the act

81
Q

What is the 51% rule?

A

In tort cases of negligence, if you are more than 50% responsible you get NOTHING

82
Q

Assumption of risk (venturesomeness)

A

plaintiff actually knew dangerous conditions and voluntarily exposed themselves to it

ex. baseball games

83
Q

Good Samaritan statutes

A

protects primarily medical personnel who render medical help to injured

84
Q

Dram Shop Statutes

A

creates liability for bars like in PA serving laws

85
Q

Strict liability

A

placed on owners of products that are likely to do mischief

  • unreasonably dangerous due to defect
  • buy insurance to mitigate this risk
86
Q

How to prove strict liability

A
  1. unreasonably dangerous

2. product is defective

87
Q

reasonable expectation test

A

to decide if product has defect

- consumer does not contemplate the defect

BLaw (2 decks)

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