Final Flashcards
(127 cards)
1
Q
Substantive Law
A
Statutory or written law that governs the rights/obligations of everyone within its jurisdiction.
Defines crime. punishment, civil rights, and remedies
2
Q
Procedural Law
A
Law that consists of a set of rules that govern the proceedings of a court
3
Q
Sources of American Law
A
Constitution (federal and state) - establishes laws in a broad sense
Statutes - laws passed by the legislative branch of the government. Bulk of US laws
Case Law - If a federal law is challenged by a party and they bring a lawsuit, a judge has the power to declare a law constitutional or unconstitutional
Common Law - Legal principles established in England around the 1200’s. A lot of statutes replace common law. Lowkey obsolete.
Regulations - administrative agencies that make rules. They do not have constitutional authority as their power comes from Congress.
4
Q
Inferior Courts (minor judiciary)
A
Magistrates. Works in civil and criminal areas. Handles summary offenses. Civil = small claims court
5
Q
Trial Courts
A
Aka court of original jurisdiction. Divided into criminal, civil, family, and small orphans court. The loser has the right to appeal. Court reporter present.
6
Q
Appellate Courts
A
Intermediate Appeals. Court of review in panels of 3 judges or larger. Commonwealth courts deal with gov. entities and everything else goes to the Superior Court (in PA).
Affirming sends the case back to wherever is deemed appropriate.
Loser can petition the supreme court to hear the case.
7
Q
Subject Matter Jurisdiction
A
go to the right court!
In terms of federal subject matter jurisdiction, it must either involve a federal (civil) question or involve diversity of citizenship
8
Q
Stare Decesis (precedent)
A
In case law, when a court decides through interpreting statutes in the constitution, that becomes law. When a case comes up that raises the same issue, the court must follow the previously decided law.
9
Q
Diversity of Citizenship
A
If the parties are from different states and/or the case involves 75k+ dollars.
10
Q
Erie Doctrine
A
(When diversity of citizenship applies to a case that involves a normal state claim). The federal court that is hearing the state claim applies the law of the foreign state. Law of the state where the federal court is located.
11
Q
Jurisdiction Over the Person (in personam)
A
The way a court gets jurisdiction over the plaintiff / defendant(s). The court gets jurisdiction over the plaintiff when they file a complaint.
12
Q
Jurisdiction Over Property (in rem)
A
When there is a dispute over property, courts have inherent jurisdiction over all property within its borders. When there is a dispute over property, courts can decide without having jurisdiction over the people.
Happens a lot with cars (see L2)
13
Q
International Shoe v. Washington
A
The case of the long arm statute
14
Q
Long Arm Statute
A
Says it is constitutional if the defendant had minimum contacts with the foreign state. In the statute, the things that are defined as minimum contacts are listed. (pg 148 of textbook?). Required causing harm or conducting business in foreign state. What is not required is that the defendant does not have to reside or own property in the foreign state.
15
Q
Forum Not Convenience
A
A doctrine in the law that allows the defendant (in civil cases) to ask a court to transfer the case to another venue because it would be convenient for most of the parties involved in the lawsuit.
Or in the case there is a more convenient venue.
16
Q
Venue
A
What district of the court the matter should be heard. Normally the plaintiff makes the decision.
The plaintiff has a choice between where they reside, where the defendant resides, or where the incident occurred
17
Q
Civil Complaint
A
Aka initial pleading. Gets a civil action number, lists how much damages the plaintiff is seeking, and lists the attorney of the plaintiff, states the jurisdiction of the court.
Makes the matter public record.
This is where you can request a jury trial.
18
Q
Service of Process
A
How the defendant is served.
They receive a summons along with a copy of a court. Summons in this case is just a notice.
Typically contains the address of a local bar association that can give advice.
Generally, a county sheriff can serve it, a processor can serve it, sometimes any adult, or through an alternative service such as sending through mail.
19
Q
Summons
A
An order for the defendant to appear in a certain place.
But also can simply mean a notice of being sued.
20
Q
Preliminary Objections
A
A motion for a more specific plea or motion to dismiss
21
Q
Motion for a More Specific Pleading
A
If the defendant believes the complaint is too broad, they can file this motion.
Some civil cases are complex and this does happen.
22
Q
Motion to Dismiss (demurrer)
A
There is some legal basis for this case to be dismissed.
EX: element of a claim missing, not constituting a claim, in violation of statutes of liitation.
23
Q
Answer
A
Called a response of pleading.
Must address all allegations, admit/deny the allegations (typically some factual allegations are admitted as true such as location of incident).
If the answer is not filed properly, the allegations will be deemed as admitted.
24
Q
New Matter
A
If the defendant wishes to add something to the lawsuit, they can add it to their answer. Something about affirmative defenses,
25
Counterclaim
When the defendant sues the plaintiff back.
26
Cross-Claim
If there are multiple defendants, and one defendant wants to sue another defendant.
27
Reply
Where the plaintiff responds to any new factual matter made by the defendant in their new matter.
Failing to reply has same impact as the defendant not answering allegations from the complaint.
28
Discovery
A procedure devised to prevent surprises at trial.
Enables each side to discover information in the opponent's possession.
Able to discover any known facts relevant to the case or could lead to relevant information.
29
Discoverable + Limitations
Discoverable: identity and locations of persons with knowledge about the case. Existence and location of documents. Expert witness opinions. Any other relevant facts.
Limitations: Privileged info (work product of attorney, attorney/client privilege), irrelevant info, info that would place undue burden/cost on the other side, info sought in bad faith.
30
Tools of Discovery
Interrogatories, depositions, production of documents/things, physical/medical examinations.
31
Protective Order
Filed when non discoverable info is sought.
E.g. info protected by attorney/client privilege.
32
Written Interrogatories
A written set of questions that one party may submit for answering to other parties of the case.
ONLY party to party. Not witnesses.
33
Depositions
Deponent placed under oath to answer questions.
Can be party to the case, an expert witness, or a witness.
Lawyers, court reporter, and person being deposed are present.
There are opportunities for cross questioning.
Dual purpose of serving in place of witness testimony if witness is absent for trial or impeaching the witness if they change their answers.
Critical to depose plaintiff + defendant.
Can be a video or a transcript.
34
Motion to Compel Discovery
If one side fails to produce information upon request, the side seeking it can go to the court and inform the court of the request + failure to comply.
If the judge grants it, the other side must follow the court's order.
35
Motion for Sanctions
If a side is not producing discovery upon request and ignores the motion to compel, a motion for sanctions is made.
Cannot make without motion to compel.
36
Motion for Summary Judgement
Each side has the right to file for this.
If the judge has reviewed the full record of the case and finds there is no material issue of fact, the judge can enter into judgement without a jury.
Can sometimes only apply to some of multiple complaints filed by plaintiff.
37
Voir Dire
The process of finding that prospective jurors are fair and impartial.
Judge will ask some questions, each side can submit questions to be asked. The jury will be informed of potential witnesses to avoid conflicts of interest.
38
Batson Motion
A juror cannot be excused without reason because of race, gender, religion, etc.
The side filing it must establish a prima facie case that shows a pattern and then the burden shifts to the other to prove a lack of bias.
39
Motion for Non-Suit (rule 50 motion)
Made after the plaintiff makes their case by the defendant.
Means that even in a light most favorable to the plaintiff, the plaintiff has failed to establish their claim
40
Motion for Directed Verdict
Can be filed by both sides.
Says that no reasonable jury could find AGAINST the party filing the claim.
Supersedes the jury, quite rare.
41
Motion for Judgement N.O.V
Whoever gets an adverse verdict from the jury, the loser can still try one more time to win the case by filing a motion with the court by filing a motion for:
Basically tells the judge that the jury got it wrong. And that the judge should reverse the Jury’s decision
42
Elements of a Contract
1. 2 or more competent parties
2. An offer
3. An acceptance
4. Consideration
5. Mutual consent/assent
6. Proper subject matter
43
Implied-in-Fact Contract
Contract where terms are manifested by conduct, not words (L4 for example)
44
Implied-In-Law Contract
Contracts that the law forms to prevent parties from being unjustly enriched. (See L4)
45
Illusory Contract (illusory agreement)
At first glance, it looks like there is a benefit/detriment to both sides but for some fact that applies to the particular case, there really is not a benefit + a detriment
46
Unilateral Contract
A promise in exchange for performance. (See L4)
47
Bilateral Contract
Contract based upon a promise by 1 party in exchange for a promise by another party
2 promises.
48
Void Contract
Some contracts are void from the outset, when they are made. Never considered a contract under law.
Possibly involving illegal conduct/conduct against public policy, or with individuals declared mentally incompetent via a court.
49
Voidable Contract
A contract that exists but it may be set aside by one or both parties because of the existence of certain facts
Does not HAVE to be set aside.
Contracts made under duress or with a minor count here.
50
Consideration
The element of a contract that makes a contract distinguishable from a mere gratuitous promise.
Every contract must have a benefit and a detriment to each of the parties involved. Must be something of value no matter how insignificant.
51
Promissory Estoppel
Exception to illusory contract/promise/agreement.
A promise to another when these additional facts exist in the absence of consideration will still make the promise binding.
The promisee reasonably relies on the promisor to their detriment. The promisor should know/knew the promisee was going to rely on the promise to their detriment.
52
Uniform Commercial Code
Body of legal contract principles that was developed by the American Law Institute (1952)
Not law, just advisory to state legislatures.
53
State of Frauds
Things that are unenforceable unless in writing. (SEE BOOK AND LEARN EXAMPLES)
54
Intentional Torts
Wrongs committed against another intentionally by a wrongdoer (aka tortfeasor)
Types: Defamation, assault, stealing trade secrets, unfair competition
55
Negligence Torts
The unintentional breach of a duty of care (outside of a contract) that is owed to another and which causes harm
4 Elements: establishment of a duty. breach of duty, harm, breach has to have specifically have caused the harm
56
Strict Liability
57
Res Ipsa Loquitur
"The thing speaks for itself"
Under this doctrine, in a civil case, under certain conditions, the burden of proof is shifted to the defendant. (as opposed to the plaintiff who is normally responsible)
58
Assumption of the Risk
The defendant has a defense under this doctrine when the plaintiff either expressly or impliedly consents to relieving the defendant of the defendant’s duty.
Expressly (written) or implied.
59
Contributory Negligence
Originally common law defense.
Comparative negligence is much fairer. The jury has to decide what percentage of the negligence is attributable to the defendant and what percentage (if any) is contributed to the plaintiff. Total must add to 100. Then they apportion the damages accordingly.
60
Loving v. Virginia
Abolished laws banning interracial marriage
61
Involuntary Termination of Parental Rights
A legal process where a court takes away a parent’s rights and responsibilities towards their child without the parent’s consent.
Grounds: Abandonment, abuse, neglect, sexual abuse, long-term chronic illness, mental illness, disability, substance abuse disorders, failure to maintain contact with their child
62
Compensatory Damages (general)
Do not have to be specifically pleased
Those that are the natural and necessary result of the wrongful act/omission. Thus, normally expected to accompany the injury
E.g. pain, suffering, mental anguish, loss of enjoyment of life
63
Compensatory Damages (special)
Awarded for injuries that arise from special circumstances of the wrong
e.g. plaintiff in battery case pleas specifically for medical/hospital expenses, loss of earnings, diminished ability to work
64
Remedies of Law/Equity
????
65
Punitive/Exemplary Damages
Damages awarded in excess of the general damages or economic loss, intended solely to punish offender
66
Liquidated Damages
A stipulated sum of money that the parties to a contract expressly agree must be paid. or may be collected, in the event of a future default or breach of contract
67
Replevin
Judicial remedy; an action to recover possession of personal property wrongfully in the possession of another
68
Ejectment
Judicial remedy sought by a landowner when a trespasser secures full possession of the land and owner brings an action to regain possession, as well as damages for unlawful retention
69
Equitable Remedies
Typically granted when common law remedies are inadequate
Non-monetary relief, e.g., injunctive relief, specific performance, reformation/rescission, restitution
70
Legal/Judicial Remedies
A means by which a court enforces a right or orders redress for a wrong, including damages (compensatory or restitutionary), injunctive relief, and declaratory relief
Monetary relief, damages, replevin, ejectment
71
Injunctions
A flexible, discretionary process of preventative and remedial justice
Courts issue injunctions when it appears that the ordinary remedy is not adequate
Preventative - restrain a person from doing something
Mandatory - command something to be done
Temporary
Preliminary/Provisional/Interlocutory - granting the filing of a bill while suit is pending
Final/Permanent - if awarded after full hearing of merits, and as a final determination of the rights of the parties
72
Temporary Restraining Order (TRO)
Ex parte injunction - granted without notice to the defendant
73
Specific Performance
The actual carrying out of a contract in the particular manner agreed upon
74
Rescission/Reformance
An equitable remedy.
Reformation - when a written agreement failes to express accurately the parties' agreement (mistake, fraud, or ambiguous language). To rectify/reform for accuracy
Rescission - Court cancels an agreement. granted when one party consents to a contract due to being under duress, undue influence, fraud, a mistake.
75
Case of Controversy Rule
(Article 3 Section 2)
Courts can only decide cases that present a real case or controversy
A term that is used to describe the type of cases that can be decided is justiciable
A case that is not justiciable cannot be brought
76
Justiciable
Type of cases that can be brought. Must present a real case or controversy
Lawsuit must arise out of an actual, real transaction or occurrence
The real and substantial dispute must exist
Parties must have adverse interests
77
Advisory Opinion
Courts will not issue advisory opinions to parties.
Exceptions:
Some states (not federal courts, never), unless it is prohibited by the state constitution / statute, the other branches of government may ask the state supreme court for an opinion.
PA does not. If the judicial branch wants an opinion, they can ask the state attorney general.
78
Moot/Ripeness
Refers to non justiciable cases
Moot: At a point in time there was a case in controversy, but by the time it reached the courts, the dispute no longer existed
Perhaps certain facts came out that resolved it
Ripeness: illegal act not committed yet
79
Statute of Limitations
Limitation that holds the moving party to bring their action within an amount of time
For torts - 2 year statute of limitations, generally. Intentional torts are 1 year
For contracts - generally 4 years
80
Res Judicata
The thing has been decided (adjudicated)
Common law concept
Under this, once there had been a final decision in a civil case by a plaintiff, against a defendant. On the same claim, the plaintiff could not bring any future claim against the same party based upon the same facts.
Lose or Win, barred from bringing the same claim
81
Collateral Estoppel
Common law concept that prevents facts that have been determined in one lawsuit to be relitigated in another lawsuit
82
Compulsory Joinder
In the initial lawsuit the plaintiff must sue all parties that they are aware of who have cause them harm, stemming from the occurrence/transaction
They must also bring all claims
Meant to avoid multiple litigations that res judicata may allow
(But it is possible that the plaintiff is unaware of an entity that contributed, the courts will allow an amendment to the complaint once that is discovered. They may also amend to have more complaints)
83
Immunity
An entity free from lawsuits
Sovereign: Still can’t really sue the government/government employee in their capacity of that branch/position
The legislature has created exceptions where people can sue certain branches of the government
Dead/Partially Dead Immunity
Charitable - couldn't sue a charity. abolished.
Family immunity - minor cannot sue parents. somewhat abolished.
84
Workers Compensation
Created by statutes during the Progressive Era in American History (Late 1800’s to Early 1900’s)
If a worker is injured within the scope of their employment, they automatically receive some form of compensation (amount depending on the extent of their injury/death) in exchange for the loss of ability to sue their employer.
Under the traditional tort system, the worker who was injured within the scope of their employment found it very difficult to win in a suit against their company because of affirmative defense
85
Alternative Dispute Resolution (ADR)
Term referring to a variety of techniques that can resolve disputers more quickly, cheaply than a case that goes to court
86
Neutral
Person who conducts ADR. Typically a mediator or an arbitrator.
87
Mediation
Meets with the parties + lawyers and tries to bring them to a settlement
Usually a lawyer who specializes in the field the lawsuit involves
Points out strengths and weaknesses in each side’s cases and brings them to a common ground
88
Arbitration
A form of alternative dispute resolution
Go to an arbitrator, parties present an abbreviated version of their evidence, a neutral decides winners, losers, and compensation
Can be binding or nonbinding
(binding = ends litigation, nonbinding = parties are free to settle but they can continue to go to trial)
89
Actus Reus
The wrongful act
Voluntary
90
Mens Rea
A criminal state of mind
Concurrence of a wrongful act with a wrongful state of mind, bc sometimes people accidentally commit crimes
Proven indirectly and circumstantially
General Intent Crime:
Prosecution has to prove the accused intended to commit the actus reus
Specific Intent Crime: requires proof of the commission of an actus reus plus a specified level of knowledge / specific intent
91
Inchoate Crimes
The crime of preparing for / attempting a crime
Ex: solicitation, attempt, and conspiracy
92
Co-Conspirator
Contrary to being mere “helpers” like accomplices, each conspirator is considered a principal in the planned crime.
93
Accomplice
A person who knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime.
Is criminally liable to the same extent as the principal.
Unlike an accessory, is typically present when the crime is committed.
94
Bill of Rights
First 10 amendments
95
4th Amendment
The government cannot engage in unreasonable searches and seizures
Police must follow the rules:
Have a warrant
Which means proving probable cause to a judicial officer
Have a reliable source of information.
***Not all arrests/searches require warrants. Sometimes there is no time.
96
5th Amendment
Due process (federal)
97
6th Amendment
Right to counsel, right to a jury trial, right to speedy trial, right to open + public trial
98
8th Amendment
No “cruel and unusual punishment”
The punishment should not be grossly disproportionate to the crime
Lowkey more directed at legislature because they pass statutes/guidelines on maximum penalties
Punishment must fit the crime
No life sentences w/o parole or death penalty for juveniles (minor)
99
14th Amendment
Due process as it applies to states
100
Expectation of Privacy
A legal test used to determine whether an individual’s Fourth Amendment rights have been violated by a government search or seizure.
101
Exclusionary Rule (Weeks vs. U.S.)
Weeks vs. U.S.:
The supreme court has ruled that when the government (law enforcement) violates a person’s constitutional rights in the investigation of a crime, the remedy is known as the exclusionary rule.
Any evidence that the police obtained in violation of a person’s constitutional rights, cannot be used at trial(or sentencing) to prove the defendant’s guilt aka suppressed
Applies to federal and state cases (Mapp v. Ohio)
102
Due Process Clause
No one can be deprived of life, liberty or property without due process
The criminal process must be fundamentally fair from beginning to end
Many rules and procedures fall under due process
103
Agency
A relationship based upon a contract between two parties
Involves a principal and the agent
The principal is giving the authority to enter into and bind the principal to contracts with third parties to the agent
Can be at will or for a specified amount of time
104
Fiduciary Duty
A relationship that exists between certain categories of people (long list: lawyers, stockbrokers, etc.) where one of the parties (or reciprocally) owe a higher duty than the duty of due care to the other
When a party owes a fiduciary duty to another, (agent owes the duty to the principal), it is a duty of utmost care. The highest level of care and honesty that exists in the law.
Violations:
Engaging in a conflict of interest
Making secret profits on a deal
Subjecting the principal to unreasonable risks
105
Respondeat Superior / Vicarious Liability
An employer is liable for any torts (negligence, strict liability, intentional) that are committed by an employee, provided that the conduct takes place within the scope of employment
Frolic + Detour:
Describes a situation where the conduct of the employee IS outside of the scope of employment
106
Independent Contractor
A person/company that is hired to do a job for another, but they aren’t under the control of the person who hires them.
107
Sole Propietorship
An individual who is in business.
Has complete control over their business.
Receives all profits.
Are personally liable for all business losses.
108
Partnership
A business association of two or more people that are formed to carry on a business for profit as co-owners of the business.
Elements:
Shared ownership
Shared management
Shared profits/losses
109
Limited Liability
Person’s assets are separate from the corporation
Investors enjoy this liability
Determined by state statute
110
Dissolution
Voluntary: Shareholders vote
Involuntary: Minority of shareholders go into a court of equity and file a lawsuit, claiming corporation is being mismanaged
State action: Revoking the corporate charter
111
Winding-Up
Even though the partnership is dissolved and they are not permitted to take on any new business, they may:
Finish uncompleted business
Make a final accounting of assets/debts
Liquidate their assets
Business equipment, vehicles, machinery, property, etc.
Distribute any remaining assets
112
Order of Distributing Remaining Assets
Business creditors
Any partners that are creditors of the partnership
Partners get back initial contributions to the partnership
113
Joint/Several Liability
Each of the debtors can be held responsible for the full amount.
Or the creditor can go to both creditors individually.
Each partner is liable on any torts or contracts entered into by other partners.
114
Right to Contribution
An action a defendant may bring in a joint and several liability jurisdiction to recover for damages they paid out but did not cause
115
Piercing the Corporate Veil
Concept where limited liability can be attacked / eliminated.
In some unusual circumstances where the corporate entity is used by the owner(s) for improper reasons, the limited liability protection is eliminated and the
personal assets of the shareholders can be used to eliminate corporate debts.
Typically happens with small corporations
116
Stock Corporations
for-profit corporation where ownership is represented by shares of stock
117
Promoters
Individuals who start a corporation
Prepare a prospectus, articles of incorporation, obtain corporate charter
Typically are also shareholders themselves
118
Stock Subscriptions
A contractual agreement to sell a number of shares at an agreed-upon price on credit is entered into
119
Board of Directors
4 meetings a year (quarterly) is most comminated
Usually nominated/voted upon by the shareholders
Typically people with expertise with business and law
Manage the organization’s governance (Set long term strategy, work with officers to implement long term strategy)
120
Corporate Officers
People handling day to operations of operations of the corporation
121
Articles of Incorporation
“The constitution of the corporation”
Set forth the basic framework of the corporation (Name, duration, purpose, business Hq + adress, internal organization, stock info, references to bylaws)
122
Corporate Charter (Certificate of Incorporation)
Makes business official?
123
Ultra Vires
Exception to limited liability
Outside of one’s own authority
If an officer approve some proposal, some action that is beyond the powers given to them by the articles of incorporation, statutes, etc., they can be held personally liable
124
Sherman Anti-Trust Act (1890)
One of the most fundamental anti trust laws
Original language provided that any restraint on trade was deemed illegal
Flawed because it held any restraint
125
Rule of Reason (Standard Oil of NJ vs. the US)
Any unreasonable restraint on trade was deemed illegal
Monopolies formed by innovation/superior business acumen/accident are not violations of anti-trust laws
126
Clayton Act
Regulated consolidations and mergers to prevent monopolies
127
Federal Trade Commission Act
Created the Federal Trade Commission (FTC)
Government agency with enforcers
Makes sure these vital acts are enforced
Brings civil and criminal lawsuits under the act
