Exam I Flashcards
(87 cards)
1
Q
The legislative branch creates law through ?
A
statutes
2
Q
The executive branch creates law through?
A
Executive Orders
Administrative law
Enabling Acts
3
Q
The judicial branch creates law through?
A
interpreting the law and setting precedent for laws
creates and changes
4
Q
At the federal level, the three branches of government are empower by the ________________ to create law.
A
US Consitution
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
6
Q
Def: Preemption
A
nothing can conflict with federal constitution or it becomes void
7
Q
Constitutional Law
A
U.S and States have laws and powers given to them in these docs
8
Q
Statutory Law
A
Created by legislature at the federal and state level
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
10
Q
Def: Stare Decisis
A
“let the decision stand”
aka precedents are used to make rulings on future cases
11
Q
The shrinking common law??
A
The federal gov is creating more statutory laws so common law has less to judge/rule/interpret
12
Q
Why is common law so important?
A
Tech/medical where everything changes so quickly that statutory law cannot keep up
13
Q
What are the four major reasons for having a legal system?
A
- manage conflict and maintain order
- provide a forum fro settling disputes
- protect expectations regarding personal and property rights
- to facilitate social change and equality
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
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)
16
Q
What are the six main characteristics of Common Law?
A
- Due Process
- Presumption of Innocence
- Right to jury and lawyer
- Right to a speedy trial
- double jeopardy
- Right to have your day in court
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
18
Q
Is congress held to the same standard of stare decisis?
A
Nope! they can do whatever they want
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
20
Q
What are equitable remedies?
A
remedies/commands with NO MONETARY value
equity aludes to fairness
21
Q
What are some examples of equitable remedies?
A
recision of a contract
injunctions to stop an action
restraining orders
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)
23
Q
Public Law
A
- involves gov. in some form
- can involve both civil and criminal actions
- criminal law is always public law
24
Q
Private Law
A
- tort law! between citizens
- corporations fall under this
25
Criminal Law
- 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.)
26
Civil Law
- 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
27
Substantive Law
- Creates laws and duties
| - defines legal relationships
28
Procedural Law
- Creates rules and processes
| - how rights and duties are informed
29
What are enumerated powers?
allows gov to regulate commerce between states
30
State's Police Powers
the things they're allowed to regulate outside of the US constitution
health, safety, welfare, morals
31
Commerce Clause
Art. 1 Sec. 8 US Con.
| regulation of commerce with foreign nations, among states, and with indian tribes
32
Gibbons v. Ogden
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
33
Where does the affectation theory come from?
1920's industrialization
| SCOTUS says congress can regulate anything that affects interstate commerce even if its within a state's borders
34
Who was Roscoe Filburn and why is he important?
challenged affectation theory with wheat farming against the AAA
SCOTUS says gov. can regulate, ushers in era of being able to broadly apply rules
35
Civil Rights and Affectation Theory
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
Commercial clause is federal subject matter if:
state law conflicts with federal law b/c supremacy clause
37
Commercial clause is local subject matter if:
no duel regulation law governs
38
Commercial clause (dormant) is duel regulation if:
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
def: Judicial review
SCOTUS interpreting what the constitution means (they have final say over this)
40
What does it take to get an amendment overturned?
1. 2/3rds house and senate
| 2. ratified by 3/4th (38) state legislatures (gets hung up here)
41
Only 4 amendments, what are they?
11th - suing across state borders
14th - citizenship for blacks
16th - income tax
26th - voting age from 21->18
42
Selective incorporation
using pieces of the Bill of Rights to pass laws
ex. freedom of speech regulations on it
ex. Right to a lawyer
43
Political speech and corporations
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
What are the exceptions to freedom of speech?
1. lewd/obscene
2. profane
3. libel & slander
4. fighting, insulting, dangerous, words
45
Advertising and the freedom of speech
**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
Can a case involving federal law be heard in a state court?
Yes, as long as it is not exclusively reserved for Federal courts
47
What types of cases are reserved specifically for the federal courts?
1. federal crimes
2. patents
3. copy rights
4. suits against the US
5. Bankruptcy
6. Federal antitrust
48
What are the 3 basic things you need for judicial review?
1. Jurisdiction (person, subject matter)
2. Standing of the parties (were they really involved)
3. Justiciable aka ripe for review
* *call to action**
49
How can you call someone into a different state court?
1. presence in state by doing business there
2. contracting someone within that state
3. commission of a tort in a state
50
What are the six steps in the litigation process?
1. complaint
2. Answer
3. Discovery
4. Trial
5. Appeal
6. Class action
51
Alternative Dispute Resolutions (ADR)
alternative to court b/c $$$
do this when juries may be bad for you
time and secrecy kept
subsequent litigation still possible after
52
ADR - Negotiation
may have lawyer
understanding your opponent
not binding unless a contract is involved
53
ADR - Mediation
lawyer plays active role and keeps confidential info
reduce posturing
Not binding
54
ADR - Arbitration
formal, extensive, and binding
efficiency advantage for businesses in time and money
less flexible than litigation
55
Why do we like arbitration?
Federal Arbitration Act favors in the US
| Saves time and money and courts time too!
56
Arbitration required in these 4 cases:
1. small claims/divorce
2. safeguards/procedures
3. De Novo court review
4. constitutional issues - due process considerations
57
Def: tort
a civil wrong that is NOT a breach of contract
58
What are the 3 categories of torts??
1. intentional
2. negligence
3. strict liability
all involve injury against persons and property
59
intent
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
Torts against people
```
assault
battery
infliction of mental distress
invasion of privacy
false imprisonment
citizen's arrest
defamation
fraudulent misrepresentation
```
61
Assault
tort - placing a person in immediate apprehension of fear
62
Battery
tort - offensive or unjustified touching of another person without content
defense - protection of self or others, privilege, or consent (hockey)
63
Invasion of privacy
tort - appropriate of another's name, intrusion, or disclosure of private info
64
false imprisonment
tort - intentional, unjustifiable confinement that is non-consenting
65
4 components of defamation
tort -
1. false statement
2. publication/3rd party
3. damages/loss
4. malice/reckless disregard for the truth
defense - truth, privileged communication
66
Tort remedy
compensatory or punitive damages
67
contract remedy
economic loss, recission of contract
68
Fraudulent misrepresentation (3 parts)
tort
1. misrepresentation of a material fact
2. intent to deceive
3. justifiable reliance on the misrepresentation
ex. house with leaky roof
69
Trespass to Chattles
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
4 elements needed to prove negligence
1. duty of care
2. breach of duty of care
3. causation
4. injury
71
def: duty of care
a duty exists when the average reasonable person would recognize the existence of an unreasonable risk to others
determines 3; was it forseeable
72
Limits to duties owed: must help if....
1. family
2. you caused the situation
3. its your job to help
4. you began to help and then backed out
73
How do you calculate fault??
B
74
Causation in fact
the injury would not have happened if it wasn't for the defendants negligent act
75
Proximate cause
was the harm of the victim foreseeable at the time of the incident (palsgraf)
76
Special compensatory damages
cover medical bills, lost of future income, etc.
77
General compensatory damages
pain and suffering that occurred
78
Contributory negligence
behavior of the plaintiff contributes to the harm resulting from the defendants initial negligence
79
What are the 2 defenses to negligence?
1. contributory/comparative negligence (objective)
| 2. assumption of the risk (subjective)
80
Comparative negligence
shared cause/blame = get certain percentage of the damages based on your involvement in causing the act
81
What is the 51% rule?
In tort cases of negligence, if you are more than 50% responsible you get NOTHING
82
Assumption of risk (venturesomeness)
plaintiff actually knew dangerous conditions and voluntarily exposed themselves to it
ex. baseball games
83
Good Samaritan statutes
protects primarily medical personnel who render medical help to injured
84
Dram Shop Statutes
creates liability for bars like in PA serving laws
85
Strict liability
placed on owners of products that are likely to do mischief
- unreasonably dangerous due to defect
- buy insurance to mitigate this risk
86
How to prove strict liability
1. unreasonably dangerous
| 2. product is defective
87
reasonable expectation test
to decide if product has defect
| - consumer does not contemplate the defect
