Intro to Law

Question 1

Law

Answer 1

The law is comprised of a body of rules governing action or conduct prescribed by controlling authority with binding legal force. The law may be derived from constitutional, statutory, or case law sources. Administrative agencies may also promulgate regulations or order which may have the force and effect of law.

Question 2

Statute

Answer 2

A statute is merely the formal, written enactment of a legislative body which can be either the federal, state or local level of government.

Question 3

Civil Law

Answer 3

Civil law deals with behavior that constitutes an injury to an individual or other private party, such as a corporation.

Example: Examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage.

Question 4

Common Law

Answer 4

Common law is a body of principles and rules of action which derive power solely from customary usage through history or from judicial decisions. Common law is distinct from statutory law.

Question 5

Case law

Answer 5

Case law is law that is based on judicial decisions rather than law based on constitutions, statutes, or regulations. Case law concerns unique disputes resolved by courts using the concrete facts of a case. By contrast, statutes and regulations are written abstractly.
Case law, also used interchangeably with common law, refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another.

Question 6

Equity

Answer 6

Equity is a form of justice administered according to precepts of fairness. Equity denotes a spirit of doing justice between parties according to what is fair under all circumstances in a particular case.

Example: Angie has a trendy churro shop in downtown Los Angeles. She notices a food truck with her trademarked business logo. Angie is able to get monetary damages for her perceived loss. However, if the food truck continues to infringe on her trademark Angie’s business can continue to decline. Equity is the additional solution that allows a court to tell another person or business to stop doing something via an injunction or other methods.

Question 7

Merger of Law and Equity

Answer 7

Modernly, federal courts and most state courts have merged the procedural aspects of law and equity under the term “civil suit.” Substantive concepts of equity and law still exist separately today.
Example: For instance, when the plaintiff files a civil action and demands a trial by jury, the defendant may move the court to strike the demand for a jury because the plaintiff is seeking equitable relief.

Question 8

Jurisprudence

Answer 8

The science of law which functions to ascertain principles on which legal rules are based. Jurisprudence is not concerned with morality or politics; instead, jurisprudence is concerned with the ultimate effects produced when legal rules are applied to society’s members collectively. Jurisprudence has also been referred to as the philosophy of law.

Example: Sociological jurisprudence exams the influence of society on laws and the procedural aspects of the legal system. This type of jurisprudence compares the law with religion, economics, and literature, in an effort to bring understanding between each sociological field.

Question 9

Legal Authorities

Answer 9

Legal Authority means any domestic or foreign federal, state, county, municipal, or other government or governmental or quasi-governmental department, commission, board, bureau, court, agency, or instrumentality having jurisdiction or authority over Landlord, Tenant and/or all or any part of the Premises.

Example: Legal authorities are statutes, rules and regulations, and court rulings. For instance The Oklahoma Board of Nursing is the only legal authority for licensing Licensed Practical Nurses, Registered Nurses, and Advanced Practice Registered Nurses; and for certifying Advanced Unlicensed Assistants.

Question 10

American Law Institute

Answer 10

The American Law Institute has authored a series of legal volumes which explain existing law in a general area, such as torts and contracts, and also explain how the law should be developed in the future. The Restatements have had significant impact on shaping the disciplines of the law covered.

Example: The American Law Institute is a private, independent, nonprofit organization that publishes Restatements of the Law, Principles of the Law, and Model Codes to further its mission to clarify, modernize, or otherwise improve the law to promote the better administration of justice.

Question 11

Restatements of Law

Answer 11

The American Law Institute has authored a series of legal volumes which explain existing law in a general area, such as torts and contracts, and also explain how the law in this area is changing, as well as scholarly opinions regarding how the law should be developed in the future. The Restatements have had significant impact on shaping the disciplines of the law covered.

Example: Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements, and reflect the law as it presently stands or might appropriately be stated by a court.

Question 12

Constitution of the United States

Answer 12

The Constitution of the United States is the fundamental law of the nation which establishes the character, conception, and power of our federal government. Constitutional law is the supreme law of the land.

Example: The Fifth Amendment to the U.S. Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about themselves.

Question 13

Judicial Council of California

Answer 13

The Judicial Council is the policymaking body of the California courts, the largest court system in the nation.

Example: The Appellate Advisory committee is charged with making recommendations to the council for improving the administration of justice in appellate proceedings.

Question 14

Multistate Bar Examination

Answer 14

The MEE is only one of a number of measures that a board of bar examiners may use in determining competence to practice. Each jurisdiction grades the MEE and determines its own policy with regard to the relative weight given to the MEE and other scores. Jurisdictions that administer the Uniform Bar Examination weight the MEE component 30%. (calbar.ca.gov)

Example: The Multistate Essay Examination (MEE) is developed by NCBE and consists of six 30-minute questions. It is administered by user jurisdictions as part of the bar examination on the Tuesday before the last Wednesday in February and July of each year.

Question 15

Performance Test

Answer 15

The Performance Test (PT) are an assessment of an applicant’s ability to understand and apply legal authorities in the context of a given factual pattern. Each question consists of a file and library with instructions on what legal tasks the applicant is expected to perform. (calbar.ca.gov)

Example: The California Bar Exam is three days long. The written portion, which consists of six subject essays and two California Bar Exam Performance Tests, is worth 65 percent of the overall score. During the afternoon of the first and third days, you will have 3 hours to do the Performance Test (PT). Because the PT score comprises 26 percent of the written score. (calbar.ca.gov)

Question 16

Multistate Professional Responsibility Examination

Answer 16

Developed by the National Conference of Bar Examiners (NCBE), the MPRE is a 60-item (50 scored questions and 10 nonscored pretest questions), two-hour multiple-choice examination administered three times each year at established test centers across the country. (Title 4, Division 1, Chapter 5 of the Rules of the State Bar of California) (calbar.ca.gov)

Example: To practice law in California, applicants must not only pass the California Bar Examination, they must also pass the Multistate Professional Responsibility Examination (MPRE).

Question 17

Moral Character Determination

Answer 17

As defined by the Rules of the State Bar of California (Admissions Rules), “Good moral character” includes but is not limited to qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process. (Admissions Rules, Rule 4.40) (calbar.ca.gov)

Example: A positive moral character determination is one of several requirements for admission to the practice of law in California. Because the moral character review process can take a minimum of six months to complete, law students should begin their application no later than the beginning of their last year of law study.

Question 18

Primary Source

Answer 18

Primary sources of law are constitutions, statutes, regulations, and cases. Lawmaking powers are divided among three branches of government: executive; legislative; and judicial. These three branches of government, whether federal or state, create primary sources of law.

Example: Everything that the government does must be consistent with the Constitution, otherwise it will be deemed unconstitutional, and be struck down.

Question 19

IRAC

Answer 19

IRAC stands for the “Issue, Rule, Application, Conclusion” structure of legal analysis. An effective essay follows some form of the IRAC structure where it is organized around an “issue”, a “rule”, an “application”, and a “conclusion” for each and every issue and sub-issue identified as a legal problem.

Example: For example, one could read, “There is an issue as to whether contact occurred when the plaintiff inhaled the second-hand smoke.” Now, one can change that into their own words and in a format that highlights the issue, “Does contact occur when one inhales second-hand smoke created by another

Question 20

Supra

Answer 20

A Latin term meaning “above”. A word often used in legal writing to refer the reader to a portion that comes in earlier part of the document, case, or book.
Example: “Supra,” is not used with cases, statutes, or constitutions. One can use “supra” for references to books, pamphlets, other nonperiodic materials, periodical materials, and the internet for instance.

Question 21

Infra

Answer 21

A Latin term meaning “below” or “under”. A word often used in legal writing to refer the reader to a portion of the document, case, or book that comes later. The opposite of supra.
Example: “Infra” is used to refer to a point that is made in a later section of your document.

Question 22

Alternative Dispute Resolution (“ADR”)

Answer 22

Alternative Dispute Resolution (“ADR”) refers to any method of resolving disputes without litigation. ADR regroups all processes and techniques of conflict resolution that occur outside of any governmental authority. (law.cornell.edu)
Example: Examples include, mediation, arbitration, conciliation, negotiation, and transaction.

Question 23

Arbitration

Answer 23

An ADR method with one or more persons hearing a dispute and rendering a binding decision. An agreement to arbitrate disputes can be made before or after a specific dispute arises. Since the parties can agree to the rules of arbitration (e.g., selecting qualified arbitrators with knowledge of the issues), they can save costs as compared to litigation. (law.cornell.edu)
Example: Arbitration results in adjudication and the arbitrators control the outcome of the meeting. Their decision is final and binding.

Question 24

Mediation

Answer 24

An ADR method with a neutral person helping the parties find a solution to their dispute. Since mediation is less rigid than both litigation and arbitration, it allows for creative techniques that would not be acceptable in other settings. (law.cornell.edu)
Example: Mediation often results in expedited negotiations. Here parties control the outcome, however, mediator has no power to decide. Settlement is only with party approval.

Question 25

Article III Judge

Answer 25

Article III of the Constitution governs the appointment, tenure, and payment of Supreme Court justices, and federal circuit and district judges. These judges, often referred to as “Article III judges,” are nominated by the president and confirmed by the U.S. Senate. (uscourts.gov)

Question 26

Administrative Law Judge

Answer 26

Administrative law judges (ALJ) (not administrative judges) are executive judges for official and unofficial hearings of administrative disputes in the Federal government.

Example: Administrative law judges function much like trial court judges hearing a case without a jury, however, their decisions are not binding legal precedent.

Question 27

Magistrate

Answer 27

A magistrate is a local official whose authority is limited to whatever has been granted by statute or specified in the appointment.
In local or state courts, a justice of the peace or other judicial officer who has strictly limited authority and jurisdiction to hear certain cases, often criminal cases or small claims.
In U.S. federal courts, a judicial officer who has been appointed by a federal district judge to expedite the judicial process by conducting routine hearings and other proceedings.
Example: The magistrate is hearing traffic ticket cases and fining people in court.

Question 28

Commissioner

Answer 28

Commissioners can perform judicial duties involving the determination of contested issues only upon the stipulation of the parties, but with that stipulation they have the same powers as judges. That means that the commissioner has the same power as a judge to hear a court case and make legally binding judgments.
Example: In family law, a commissioner is presiding and hearing the matter in regards to child support.

Question 29

Cause of Action

Answer 29

A set of predefined factual elements that allow for a legal remedy. The factual elements needed for a specific cause of action can come from a constitution, statute, judicial precedent, or administrative regulation.
Example: Bill wanted to sue his ex-wife for her slanderous comments. Her slanderous comments would be the cause of action.

Question 30

Complaint

Answer 30

Allegations against the defendant. The specific laws the defendant allegedly violated. The facts that led to the lawsuit being filed. Plaintiff’s demands for the defendant to follow to make good on what he allegedly did wrong.
Example: Bill’s ex-wife submitted an affidavit that her son was being abused by Bill.

Question 31

The prayer for relief

Answer 31

The prayer for relief is the part of complaint where a plaintiff states the damages or other remedies it is seeking from the court in a lawsuit. Federal Rules of Civil Procedure 8(a)(3) requires that a plaintiff’s pleadings contain a prayer for relief. The prayer is often located at the end of the complaint. (law.cornell.edu)
Example: The plaintiff is seeking damages in the amount of $30,000 for the reckless driving of the defendant that led to injury.

Question 32

Remedy

Answer 32

A remedy is a form of court enforcement of a legal right resulting from a successful civil lawsuit.
Example: Brandon hired and paid The Pony Express petting zoo for his daughter’s birthday party. Brandon paid $800, but the company didn’t fulfill their contract and weren’t able to do it. Brandon searched for another petting zoo company and the cheapest one he could find cost $1500. If this cost is found to be reasonable, Brandon’s first petting zoo company would have to pay Brandon $1500 in compensatory damages, allowing Brandon to obtain another petting zoo as the contract intended.

Question 33

Affirmative Defense

Answer 33

This is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.
Example: Self-defense, entrapment, and insanity are all examples of affirmative defense.

Question 34

Writ of Certiorari

Answer 34

A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certiorari comes from Law Latin and means “to be more fully informed.” A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.
Example: The U.S. Supreme Court uses certiorari to select most of the cases it hears.

Question 35

Negative or Prohibitory Writ

Answer 35

A writ of prohibition restrains a body exercising public power from exceeding its powers or usurping jurisdiction which it does not have. That is, it prohibits the decision maker and those relying on the decision from doing something which they are about to do, or from continuing a course of action already commenced, such as taking any further step in proceedings.
Example: Qantas Airways Ltd v Lustig (2015) 228 FCR 148; [2015] FCA 253 where the court found that the tribunal lacked jurisdiction to entertain the applications instituted by the applicants and issued a writ of prohibition.

Question 36

Question of Fact

Answer 36

1) An issue of fact, not law. A question of fact is resolved by a trier of fact, i.e. a jury or, at a bench trial, a judge, weighing the strength of evidence and credibility of witnesses. Conversely, a question of law is always resolved by a judge. 2) In some jurisdictions, an issue regarding the determination and/or interpretation of foreign law in a case. A party seeking to rely on foreign law must prove it like any other fact that has not been judicially noticed. In some jurisdictions, a question of fact regarding the determination and/or interpretation of foreign law is resolved by a jury or, at a bench trial, a judge.
Example: A common example might be “was the traffic stop lawful.” These are all issues for a judge to decide prior to trial.

Question 37

Burden of Proof

Answer 37

Generally, describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established. There are different standards in different circumstances. For example, in criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. In civil cases, the plaintiff has the burden of proving his case by a preponderance of the evidence. A “preponderance of the evidence” and “beyond a reasonable doubt” are different standards, requiring different amounts of proof.
Example: The district attorney has the burden of proof when prosecuting an alleged murderer

Question 38

Standard of Proof

Answer 38

Standard of proof describes the amount of evidence necessary to prove an assertion or claim in a trial. In the criminal justice system, the burden of proof lies with the government. In civil cases, it is the plaintiff that has the burden of proof. Standards of proof define what the burden of proof is based on the claim asserted. Some standards of proof relate to events that take place before a suspect is even charged with a crime. These pretrial standards are very important because evidence obtained in violation of a suspect’s constitutional rights will be thrown out, or suppressed.
Example: The plaintiff is suing a store for not mopping water from a dripping air conditioning vent; causing her injuries after she slipped and fell on the resulting puddle. The plaintiff only has to prove her case to the point that it was more likely than not that something occurred in a certain way.

Question 39

Preponderance of the Evidence

Answer 39

Preponderance of the evidence is one type of evidentiary standard used in a burden of proof analysis. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.
Example: A woman with various underlying health issues, such as obesity and diabetes is suing her doctor for malpractice. She claims that due to the surgeon’s malpractice it has left her with necrotic tissue, and an infection that led to extensive tissue loss. The surgeon claims the complications arose to the plaintiff’s previous and underlying conditions. The plaintiff was unable to prove to the point of greater than 50% that her claim was true.

Question 40

Clear and Convincing Evidence

Answer 40

“Clear and convincing” evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence.
Example: The plaintiff has a partner that is on life support. The plaintiff feels it is time to disconnect the life supporting measures for their partner. However, the partner’s parents disagree and would like to continue those life supporting measures for longer. There is no will specifying what the partner’s wishes are. It is up to the plaintiff to satisfy their burden by presenting evidence that shows that it is highly probable that her partner would not want to continue on life supporting measures is true.

Question 41

Prima Facie

Answer 41

The Latin term Prima-Facie means “at first view.” In legal terms, this means that evidence is sufficient to raise a presumption of fact or to establish the fact in question unless questioned. In a prima-facie lawsuit, the facts are presented as adequate enough to show that underlying conduct supports the cause of action, and will prove successful in court. Prima facie evidence in law is sufficient to establish the fact unless questioned.
Example: For example, when buildings are set on fire by sparks emitted from a train engine passing along the road, it is prima facie evidence of negligence on the part of the train company

Question 42

Amicus Curiae

Answer 42

Amicus curiae translates from Latin to ‘friend of the court’, and that’s exactly what an amicus curiae brief represents. An amicus curiae brief is a legal document submitted by a person or group that is not involved directly in the particular action. Rather, the brief is submitted by a party who has the same or similar interests in the outcome of the case.
Example: Angie believes in the benefits of marijuana and believes it should be legal in the United States for medicinal purposes only. Angie becomes aware that there is a case going to the Supreme Court, and wants to influence the Court’s decision. Angie is not involved in the case in any way, however, she wrote a brief in support of the position.

Question 43

Per Curiam

Answer 43

A per curiam decision is a court opinion issued in the name of the Court rather than specific judges. Most decisions on the merits by the courts take the form of one or more opinions written and signed by individual justices.
Example: Perhaps the most famous example of per curiam to occur at the U.S. Supreme Court was Bush v. Gore (2000). In this case, the Florida Division of Elections reported that the Republican Presidential candidate, Governor George W. Bush, had won the presidential election in November of 2000.

Question 44

Ratio Decidendi

Answer 44

Latin, “rationale for the decision.” The term refers to a key factual point or chain of reasoning in a case that drives the final judgment. When considering earlier cases as precedent, courts often ask parties to be very clear about how they interpret the main guiding principle or ratio decidendi of the earlier case.
Example: The judge ruled on his presiding case regarding an issue where a dog’s unlikely actions injured a person. The reason for the decision in this case, the ratio decidendi, can therefore be expressed simply as: where harm was caused to a pedestrian by a dog smashing the window of the car that it was in, and where this sort of incident was unforeseeable, the defendants were not liable.

Question 45

Orbiter Dictum

Answer 45

In a judgment, any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous. Those statements are referred to as obiter dictum. This is Latin for ‘a word said while travelling’ or ‘along the way’ (obiter dicta in the plural), something said in passing. Although obiter dicta statements do not form part of the binding precedent, they can be persuasive authority if taken into consideration in later cases.
Example: In United States v. Carolene Products case, where Justice Harlan F. Stone suggested in the now-famous Footnote 4 that a legal rule more stringent than the rational basis test be applied in hypothetical, future situations. The language in Footnote 4 eventually served as the basis for the doctrine of strict scrutiny. (law.cornell.edu)

Question 46

Sua Sponte

Answer 46

Latin for “of one’s own accord; voluntarily.” Used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from either party. As a general rule, where grounds for dismissal exist, an action is subject to dismissal on a court’s own motion. A trial court has the power to dismiss an action sua sponte for want of prosecution, or failure to comply with the rules of civil procedure or a court’s orders. A court may sua sponte enter a motion to dismiss for want of jurisdiction even though both parties have agreed to appear in the court.
Example: Carlisle v. United States, 517 U.S. 416 (1996) – The Supreme Court of the United States ruled that a district court could not move sua sponte to grant a judgment of acquittal (notwithstanding the verdict) to remedy the late filing of the equivalent motion. (law.cornell.edu)

Question 47

Stare Decisis

Answer 47

The use of precedent in the courts is also known as stare decisis. Translated from Latin, stare decisis means to stand by things decided. The doctrine of stare decisis occurs in instances where a court relies upon a prior case ruling.
Examples: For example, the Kansas state appellate courts will follow their precedent, the Kansas Supreme Court precedent, and the U.S. Supreme Court precedent.