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Introduction Flashcards

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1
Q

standing to sue + who has it (3 rq)

A

sufficient stake in matter to justify seeking relief
Harm - must have suffered or face imminent harm
Causation - causal connection between conduct complained and injury
Remedy - it must be likely that a favorable court decision will remedy the injury suffered

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2
Q

statutory law

A

passed by legislature, incl local reg like land use

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3
Q

uniform laws

A

legal scholars and lawyers formed national conference of commissioners on uniform state laws to draft uniform laws, or model statutes – each state has option of adopting or rejecting or modifying

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4
Q

administrative law

A

rules, orders, decisions from administrative agencies

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5
Q

independent regulatory agency officers

A

officers serve fixed terms, cannot be removed without just cause

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6
Q

case law

A

body of judge-made law, doctrines and principles announced in cases

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7
Q

common law

A

body of general rules that applied throughout realm, legal precedent

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8
Q

courts of equity

A

formal chancery courts, supply remedies in equity (specific performance, injunction – party cease engaging in activity or undo, rescission – cancellation of a contractual obligation) when no adequate remedy at law is available, but not often these days

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9
Q

equitable maxim

A
  • propositions or general statements of equitable rules
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10
Q

equitable doctrine o laches

A

“equity aids the vigilant, not those who rest on their rights”, can be used as defense

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11
Q

cannot demand a jury trial in

A

action in equity

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12
Q

basic steps of legal reasoning process

A

IRAC method – Issue - what are they key facts and issues, Rule - what rule of law applies to the case, Application - how does rule of law apply to the particular facts and circumstances of this case, Conclusion

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13
Q

secondary sources of law

A

books and articles that summarize and clarify the primary sources of law, used for guidance in interpreting and applying primary sources of law

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14
Q

restatements of the law

A

compilations of the common law published by the American Law Institute

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15
Q

schools of legal thought ()

A

natural law, positive/national law, historical school, legal realism, sociological

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16
Q

jurisprudence

A

the study of law, involves learning diff schools of legal thought and how the approaches to law characteristic of e school can affect judicial decision making

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17
Q

natural law

A

a universal law exists that applies to all people, should reflect principles inherent in natural law
Natural rights

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18
Q

positive/national law

A

law written for a given society at a given time; no natural rights
legal positivists believe there can be no higher law than a nations positive law, more likely defer to existing law

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19
Q

historical school

A

concentrates on origin and history of legal sys, what doctrines have withstood passage of time?
Followers more likely to strictly follow past decisions

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20
Q

legal realism

A

“law is just 1 o many institutions in society + that it - shaped by social forces and needs”, should take social and econ. Into account when deciding cases
“l. can never be applied w total uniformity”
Influenced growth of sociological school
More likely to depart from past decisions

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21
Q

sociological school

A

law - tool for promoting justice in society

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22
Q

types of law content (2)

A

substantive and procedural

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23
Q

reports or reporters def

A

written decisions of appellate courts published and distributed

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24
Q

types of opinions (6)

A

unanimous, majority, concurring, dissenting, plurality, per curiam

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25
Q

plurality opinion

A

the opinion has the support of the largest number of judges but the group in agreement is less than a majorit

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26
Q

per curiam opinion

A

anon

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27
Q

enumerated power

A

expressed power

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28
Q

implied power

A

power to carry out enumerated power

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29
Q

police powers

A

ability of a government to enact laws to coerce its citizenry for the public good

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30
Q

privileges and immunities clause

A

prevents states from imposing measureable burdens on citizens of another state unless there is substantial reason
activities incl transferring property, seeking employment, accessing court system

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31
Q

full faith and credit clause

A

[t] shall be gien in e state to the public acts, records andjudicial proceedings o e other state
only civil
ex. deeds, wills, contracts

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32
Q

commerce clause

A

National gov reg interstate commerce so states X est laws and regulations that would interfere w/ trade and commerce in other states

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33
Q

dormant/implied commerce clause

A

states X have authority to regulate interstate commerce

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34
Q

congress has power over $ for _____

A

defense and welfare of US

35
Q

freedom of speech incl (3)

A

symbolic, corporate political, commerical

36
Q

freedom of speech regualtion scrutiny

A

Laws that reg time/manner/place, X content receive less scrutiny
Reg conent must serve compelling state interest + be narrowly written -> compelling gov interest test

37
Q

commercial speech restrictions

A

Communications by business firms must be for commercial interests and not against state interests
Restriction - valid if seeks to implement gov interest, directly advances it, and doesn’t o further than necessary

38
Q

unprotected speech

A

Defamatory, violence-inciting, obscene, threatening

39
Q

establishment v free exercise clause

A
  1. Gov x est state religion or show preference
  2. People ca choose any religion
    Restrictions must be necessary, not substantial burden to change belief, public welfare exception
40
Q

What est judicial review?

A

marbury v madison

41
Q

basic judicial rq (3)

A

jurisdiction, venue, standing to sue

42
Q

in personam jurisdiction

A

personal jurisdiction over geographic area

43
Q

in rem juris

A

jurisidction over property located within its boundries

44
Q

long arm statute

A

court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state

  • Defendant must have had minimum contacts with the state to justify the jurisdiction
    • Defendant must have sufficient connection to the state
  • Corp. contacts - subject to personal jurisdiction in the state in which it is incorporated
    • Large corp in states where it does such substantial business is “at home” in that state
45
Q

jurisdiction of fed courts (4 ways)

A

fed Q -> fed law
diversity of citizenship
corp citizen in 1+ state
state court cases

46
Q

(juris) diversity of citizenship rq (2) + law application

A

plaintiff and defendant must be residents of diff states;
Dollar amount in controversy must exceed 75000
Fed court will apply relevant state law (law of statte in which court sits)

47
Q

exclusive v concurrent juris

A

Concurrent juris - both fed and state courts have power to hear case; Party can choose which
Exclusive juris - when case can only be tried in federal or state

48
Q

sliding scale standard, international?

A

identified 3 type of internet busi contacts and outline3 rules: when defendant conducts substantial busi over internet, juris ok; when there is some interactivity through a website, juris ok sometimes; when defendant merely engages in passive advertising on web, jurisdiction never proper
International - Business has to comply with laws in any juris in which it target customers for its products

49
Q

venue + when can change?

A

most appropriate location for a trial

fair and impartial jury necessity

50
Q

venue - civil and criminal

A

Civil: where defendant resides/does business vs criminal: where crime occurred

51
Q

Federal court sys - how did judge get job

A

appointed by president of the US, subject to confirmation by the US senate, lifetime appointments, removed by impeachment proceedings

52
Q

magistrate judges

A

Junior fed officers conduct diff judicial proceedings to reduce delays
Selected by federal district court judges based on recommendations of a merit screening committee (attorneys, admin law judges, state court judges, other applicants), serve 8 years

53
Q

writ of certiorari

A

an order issued by SC to lower court to send record of case for review

54
Q

rule of 4

A

s.court will issue writ o cert. if 4/9 approve

55
Q

alternative dispute resolution types (3 + 4 minor types)

A

negotiation, mediation, arbitration

Early neutral case eval, mini-trial, summary jury trials, summary proceedings w use of special masters

56
Q

mediation

A

Neutral 3rd party = mediator and works with both sides to facilitate a resolution, usually charges fee, but not necessarily lawyer
Talks with oth parties separately and jiontly, emphasizes points of agreement, and eval options, propose solutions
Less adversarial, tends to reduce antagonism between disputants

57
Q

arbitrator, award, when can it be appealed/set aside?

A

arbitrator decision an award
can be appealed, but courts review of decision will be more restricted than appellate of trial court b/c parties - free to frame issues and set powers of arbitrator
Will be set aside if court finds: conduct/bad faith prejudiced rights of one of the parties, award violated est public policy, arbi exceeded their powers b/c arbi issues that parties didn’t agree to

58
Q

pro se representation

A

parties rep themselves in court

59
Q

3 types of attorney fees

A

fixed fees - charged for service, like drafting will
hourly fees - indeterminate period of time
contingency fees - % of client’s recovery

60
Q

pretrial procedures

A

filing of the pleadings

gathering of evidence or discovery

61
Q

parts of the pleadings

A

complaint - pleading made by plain* alleging wrongdoing on part o def*, initiates lawsuit, states juris, legal theory, remedy
answer - defendant’s response

62
Q

service of the process

A

formally notifying defendant of a lawsuit with a copy of the complaint and a summons
□ Summons = notice req/ the defendant to appear in court and answer the complaint, must be answered in a specified time period or suffer default judgement v him

63
Q

Default judgement

A

= plain* - awrded damages alleged

64
Q

(pleadings) answer, 2 types

A

admits/denies e allegation + set forth defenses
affirmative defense - admit truth but raise new facts to show X liable
Counterclaim: Claim made by def* in civil that sues plaintiff, plain* needs to submit answer to counterclaim

65
Q

motion, 3 types

A

procedural request submitted to court by att* on behalf of client, must provide def w/ notice of motion informing def* that motion has been filed
dismiss, for judgement, for summary judgement

66
Q

(motions) dismiss (4)

A

dismiss case f reasons stated if claim X have remedy that can be granted, X properly served, X juris, venue improper

67
Q

motion f judgement on pleadings, granted if

A

asks court to decide issue on pleadings w/o trial, granted if no dispute over facts and sole issue is question o law

68
Q

motion f summary judgement

A

Asks court for judgement wo trial, before or during trial

p* filing motion can submit eidence obtained b4 trial to refute factual clai

69
Q

affidavits

A

sworn statements by parties/witnesses; copies of docs obt during discovery; only evid that would be allowed at trial

70
Q

de novo review

A

reviews issue as if lower court X rule on issue, used if decision appealed

71
Q

3 rules of discovery

A

Allowed if relevant to claim or defense o either
Protection o witnesses fr undue harrassment
Prevent priv or confidential mat fr/ disclosure

72
Q

depositions

A

Sworn testimony by party to lawsuit or by any witnessesrec by authorized court official
Answers both sides
Can be used to impeach (challenge credibility of) * at trial if change testimony
Can be used at trial if testimony not avail

73
Q

Interrogatories

A

Written Q for which written answers - prep and signed under oath
Usu 30 days to prep answers
Obligated to answer Q

74
Q

Requests for admissions

A

Any fact admitted under req - est true f trial

75
Q

Requests for exams

A

Phys or mental condition

Opposing party can get results

76
Q

Spoilation of evidence

A

doc or info req for discovery - destoryed/altered sig

77
Q

voir dire

A

bias/connection in jury selection

78
Q

trial procedures

A

opening statement, rules of evidence, exam o witness and potential motions

79
Q

rules of evidence

A

evidence that proves or disproves a dact in Q or rest degree of probability of fact/action

80
Q

examinaiton of witnesses (4)

A

direct questioning by plaintiff first, cross-examination, redirect examination, recross examination

81
Q

posttrial motions (2)

A

motion for new trial - jury in error, judgement X appropriate, new evidence, misconduct, /error by judge
MOTION FOR JUDGEMENT NOV
if verdicy - unreasonable + erroneous

82
Q

appellate review (4 results)

A

affirm, reverse, remand, reverse in part

83
Q

petition

A

losing party right to ask higher court to review case

84
Q

writ of execution

A

requesting court assistance in collection

Business Law (18 decks)

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