Law 1 Flashcards
1
Q
In the common law, a collection of statues enacted by legislative bodies including Congress and state legislatures
A
Code
2
Q
Codified law based on Roman code of Justinian, basis legal system in Europe and Latin America and many African and Asian nations
A
Civil Law
3
Q
Developed and pronounced by courts in deciding cases (“case law”), based on English common law and judicial precedent
A
Common Law
4
Q
The predominant feature of civil law is its attempt to establish a body of legal rules in
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One systemized code
5
Q
The predominant feature of common law is based on an accumulation of
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Previous cases and judicial decisions
6
Q
Requirement that the courts follow their own precedents
A
Stare Decisis
7
Q
What does Stare Decisis mean
A
Stand by the decision
8
Q
Stare Decisis binds lower courts to the decision of
A
Higher courts of the same jurisdiction
9
Q
The Stare Decisis is
A
Not absolute
10
Q
Stare Decisis can be amended by
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Court changing mind or legislative mandate
11
Q
Congress and state legislatures may enact laws (statutes) that modify
A
Common Law
12
Q
Egland, British Commonwealth and Us follow what type of law
A
Common Law
13
Q
What type of law began as an independent legal system based on fail play?
A
Equity
14
Q
What type of law covers injunctive relief, specific performance of contracts, parts of family law
A
Equity
15
Q
Many principles and maxims of equity have been merged into
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Common law
16
Q
In an equity case, there is no
A
Trial by jury
17
Q
What type of law defines legal rights and oblication in regard to a specific subject
A
Substantive Law
18
Q
What type of law is concerned with the enforcement of substantive law in a court
A
Procedural Law
19
Q
What type of court has been simplified to allow self-representation
A
Small claims court
20
Q
What permits clients to keep confidential matters discussed with their attorneys
A
Attorney/Client privilege
21
Q
What an employee tells a corporate lawyer is
A
Not privileged
22
Q
The Attorney/Client privilege does not extend to information made
A
In the presence of others or waved by cleint
23
Q
The Attorney/Client privilege does not extend to i
A
Clients expression of criminal intent
24
Q
What doctrine protects attorney’s and firms notes even with loss of attorney/client privilege
A
Work-product doctrine
25
An ethical responsbility of an attorney is to only take cases
That can be handled competently
26
An ethical responsbility of an attorney is zealously
Advocate clients cause
27
An ethical responsbility of an attorney is to keep the
Client resonably informed
28
An ethical responsbility of an attorney is to abide
By restrictions of attorney/client privilege
29
An ethical responsbility of an attorney when withdrawing is to
Take measures to protect client's interest
30
Attorney's fees are usually paid for
By each party
31
Contingency fee arrangements should be
Put into writing and explained in depth
32
A lawyer may act in many roles including:
Investigator, drafter, negotiator, advisor, and advocate
33
What code governs lawyer's duties to client and legal system
State code of attorney conduct
34
What does the UCC stand for
Uniform Commercial Code
35
Substansive commercial law including sales, commercial paper, and secured transaction are covered in the
Uniform Commercial Code
36
What does the NCCUSL stand for
National Conference of Commissioners of Uniform State Laws
37
What does the NCCUSL do?
Proposes new uniform laws and changes to existing laws for states to adopt
38
Who staffs the NCCUSL?
Professors, attorneys, judges, and legislators
39
Who appoints the staff of the NCCUSL?
The states
40
What does ALI stand for?
American Law Institute
41
What is the American Law Institute responsible for?
Restatements of law
42
Statutory law is found in
State or federal code
43
Case law is a collection of opinions of
Appellate courts
44
Opinions of trial courts are usually
Not published (expect federal trial courts)
45
Restatements of Law do not
Bind courts
46
Restatements of Law serve as general guidelines which gives
Greater weight
47
Restatements of Law also
Dlineate trends in common law
48
Nation or state surpreme set of laws
Consitution
49
Constitution outlines basic
Organization, powers and repsonsibilities of government
50
Constitution guarantees certain
Specified rights to the people
51
What is a statute?
A law passed by the US congress or state legislature
52
What is an ordinance?
A law passed b a governmental body below the state level dealing with a local concern
53
What is a rule?
A regulation issued by a federal, state or local administrative agency (or court) and government prodecdure or conduct in a specific field
54
What are eight important sources of loaw in the US?
US constitution, federal statutes, 50 state constitutions, state statutes, local ordinances, rules and rulings of federal, state, and local agencies, decisions by courts, private laws and customs
55
What is the Surpremacy Clause?
Grants that laws made in the "pursuit" of the constitution are the "surpreme law of the land"
56
What article of the Constitution is the surpremacy clause?
Article VI
57
What does preemption mean?
If the government has the right to regulate in a specific area, then its laws in that area "preempt" states laws
58
What are the three branches of government?
Legislative, executive, judiciary
59
The legislative branch of government does what?
Makes the laws
60
The excutive branch of government does what?
Enforces the laws
61
The judicary branch of the government does what?
Passes on the consitutionality of the laws
62
What does "judicial restraint" mean?
Courts may avoid deciding issues in a case
63
Article I Section 8 of US Constitution?
Necessary and Proper Clause
64
What does the Necessary and Proper Clause do?
Expressly aurthorizes a number of Congressional legislative power
65
What are some of the powers of the Necessary and Proper Clause?
Tax, coin money establish roads, regualte foreign and interstate commerce, national defense.
66
What are implied powers?
Laws passed that are necessary and proper for carrying out governments enumerated powers under the constitution
67
What doctrine states that Congress has the power to pass statutes governing even local commerce in that the subject covered can "affect interstate commerce?
Affectation doctrine
68
Congress has the power to tax as long as it is
Revenue producing and not punitive
69
Congress has the power to spend for the
"General welfare"
70
Notice of hearing, unbaised fact-finder, presentation of evidence, cross examination, and appeals are what?
Procedural Protections
71
State and federal government has right to regulate economic activity as long as it does not
Violate any other provision of the constitution
72
Legislative pwoers must be expressly or implicitly delegated to Congress by the
US Constitution
73
What article and section of the US Constitution grants expansive power to the federal government?
Article 1, Section 8
74
What three powers are granted to the federal government in Article I, Section 8?
Regulate interstate commerce, tax, and provide (spend) for the "general welfare"
75
What amendment authorized congress to pass any laws to enforce due process and equal protection provisions of the amendement
The Fourteenth Amendment
76
State goverments have their own sphere of power and do not look to the federal government as the source of their authority
Federalism
77
Laws that are the exclusive domain of the states
State Statutes
78
What is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages
Tort
79
Legally, torts are called what?
Civil wrongs
80
The power to what is an important example of shared power although certain areas are barred from state regulation
Regulate commerce
81
The constitution prohibits Congress and state legistlatures to pass
Ex post facto laws and Bills of Attainder
82
What is an ex post facto law?
Make criminal past actions not defined as criminal when they occurred
83
What are Bills of Attainder?
Laws that single out and/or punish a specific individual without benefit of a trial
84
Laws passed by government body below state level dealing with local concern; speeding, littering, zoning
Ordinance
85
What does the Enabling Act do?
Federal, state, or local government delegates authority to an agency to administer law in a particular field
86
The agency develops
Expertise in the area it regulates
87
The agency monitors regulated industry
Continously, whether or not a voilation has occurred
88
Agencies can proceed
More quickly and informally than ordinary judicial process
89
Most important federal agencies have a mixture of
Legistlative, judicial and exectutive powers
90
Exmaples of federal agencies include:
Federal Reserve Board, Federal Trade Commission, SEC
91
What are the primary sources of US Common Law?
Decisions by state and federal courts
92
To originate in a federal court, a case must involve a
Real dispute between parties
93
The US Surpreme courts function is to review
Lower court decisions that have been appealed
94
Papers filed with the court (copies to the other party), in preparation for beining or defending a lawsuit
Pleadings
95
Pretrial procedures where parties obtain information from other parties and witnesses
Discovery
96
Proceedings before a compentent tribunal where a civicl or criminal case is heard and adjudicated
Trial
97
Federal judges are
Appointed for life
98
State judges serve usually for a
Renewable term
99
Some states judges are
Elected
100
What is jurisdiction?
Power to hear and decide issues
101
What is subject matter jurisdiction?
The power to hear the case
102
What is personal jurisdiction?
The power to bind the parties
103
When parties from two different states are in a lawsuit and one party requests it and the amount is over $75,000
Diversity jurisdiction
104
A defendant must be served with
A complaint or summons
105
What extends jurisdiction to those doing business, own property or commit a tort in a state?
Long-arm statutues
106
What is the place (usually county) where the case is heard?
Venue
107
Body of law governing what laws are use din multi state matters?
Conflict of Law
108
Law in state where injury occurred
Tort
109
Law in state parties intended
Contracts
110
Law in state where the crim occurred
Criminal
111
One who brings the suit
Plaintiff
112
One being sued
Defendant
113
Petitioner in equity case
Plaintiff
114
Respondent in equity case
Defendant
115
Papers required mto bring issues of a lawsuit before the court
Pleadings
116
Pleadings contain what?
Statement of facts, basis of suit (Breach of contract), remedies
117
Pleadings must be ______________ to the defendant giving defendant a specified time to answer
Served
118
Courts lack of subject matter durisdiction, statute of limiations expiration, allegations do not breach, tort or anything else that could lead to judgement can result in
Motion to Dismiss
119
If judge decides that there is no genuine issue as to the facts or when law is applied to these facts, one party is clearly entitled to a verdict in their favor
Summary Judgement
120
Process by which each party obtains information from the other
Discovery
121
What are some of the results of Discovery?
Prevents surprises at the trial, preserves witness testimony, may lead to summary judgement, may lead to pre-trial settlement
122
Written questions to be asnwered in writing under oath?
Interrogatories
123
Made and answered in writing and can only be directed to the other party where the party asked to admit a particular fact or genuinesses of doctrines
Request for admissions
124
New rules governing the retention and protection of electronic data such as emails, databases, ect.
E-Discovery
125
What does FRCP stand for
Federal Rules of Civil Procedures
126
What did the FRCP amended in 2007
Requires a legal hold on electronic records until matters are resolved
127
What does the FRCP say about email and IM chats?
Specifies these as likely records
128
Pretrial conference
Held to insure the trial goes smoothly.
129
In criminal and most civil lawsuits a jury trial
Is available
130
Equity cases (divorce) and administartive proceedings
A jury trial is not available
131
Who can ask for a trial by jury
Plaintiff or defendant
132
The right to a trial by jury is waived if
Not requested in the plaintiffs complain or the defendants answer
133
Usually consists of 12 members, decided guilt (criminal) or libel (civil) cases
Petit Jury
134
The decision of a Petit Jury must be
Unanimous
135
Consists of 18 to 24 jurors guided by prosecutors deciding whether a person should be charged with a crime (indicted)
Grand Jury
136
What is Voir Dire
Jury selection
137
Who is a jury selection handled?
Prospective jurors are questioned by the attorneys and the judge
138
What does an opening statement give an attorney
The chance to state what they itend to prove
139
What case is after an opening statement
Plaintiffs Case
140
Who has the Burden of Proof
Plaintiff
141
The defendants case comes after the
Plaintiffs case
142
What is a Summation
Closing or final arguments and attorneys review testimony and evidence and argue for verdict
143
Each party is limited to _________ apeals to an appellate court
One
144
A written argument supported by ciatations, prior decisions, statutes
Brief
145
Third party helps settle case but annot impost a dugement
Mediation
146
Power to make final, binding decision. Shorter, cheaper than litagation
Arbitration
147
A legal, enforceable agreement, express or implied
Contract
148
Four essential elements of a contract
Capacity of the parties, mutual agreement (meeting of minds), consideration, legality of subject matter
149
Contracts are purely mental agreements. The mental agreement is shown by
Oral or written words, actions or (rarely) silence or inaction.
150
Type of contract stated in words, written or oral
Express contract
151
Type of contract manifest by conduct rather than words
Implied-in-fact contract
152
Type of contract created by operation of law, avoids unjust enrichment. No meeting of minds.
Implied-in-law contract, quasi-contract
153
Exchange of promise for a promise
Bilateral contract
154
Promise by one party for the act of another
Unilateral contract
155
Contract that has been fully perfomed by both parties
Executed Contract
156
A contract that something reamins to be done by one or both parties
Executory contract
157
A type of contract that meets all legal requirements and can be enforced by either party
Valid contract
158
Type of contract that does not meet one or more legal requirements and cannot be enforced by either party
Uneforceable contract
159
Type of contract that has not validity and cannot be enforced by either party
Void contract
160
Type of contract binding on only one of the parties, the other has the option to withdraw (contracts with minors, under duress)
Voidable contract
161
First step of forming a contract
The Offer
162
What are the requirements for the offer?
Indicate clear intent to make a contract, sufficiently definite so that court can determine intent, communicated to the other party
163
An agreement to keep an offer open for a specified period of time in exchange for payment
Option
164
The the steps of forming a contract, what comes after the offer?
Acceptance
165
Conditional acceptance is a counteroffer and treated as a
Rejection to the offer
166
Lawful alteration of responsibilities in exchange for another's
Consideration
167
What is required in almost all contracts
Consideration
168
What requires that a person made a gratuitous promise be held to it when the promisee, to their detriment, relied upon the promoise
Promissory Estopple
169
What type of mistake pertains to the very heart of the agreement, not misjudgment of value
Material mistake
170
If the mistake is mutual, the contract is not
Binding
171
Intentional misrepresentation or deceit
Fraud
172
What are 5 requirements of fraud?
Misrepresentation of a material fact, made knowingly, with the intent to defraud, justifiably relied upon, causing injury to the other party
173
What type of misrepresentation can rescind the contract but cannot sue for damages
Innocent misrepresentation
174
One party takes advantage of another by reason of a superior position in a close or confidential relationship
Undue influence
175
Coercion, either physical or mental that depreives a person of free will and leaves a person with no reasonable alternative other than to accept the contract terms as imposed on him
Duress
176
Overbearing party in a superior position imposes outrageously unfair terms on some other party through fine print and "fast talk"
Unconscionabilty
177
Standardized agreement tendered to a consumer on a :take it or leave it" basis
Adhesion contract
178
Confusing contract with hidden terms
Procedural unconscionability
179
Contract is unfair, with an overly harsh allocation of risk
Substantive unconscionablity
180
The level of mental ability sufficient to reach an agreement
Capacity
181
What are the three categories of people who may lack capcacity
Minor, insane persons, intoxicated persons
182
Illegal agreements cannot be introduced into a
Court
183
Sunday sales of non-necessities that may be illegal in some states
Blue Laws
184
Unlawful high interest rate
Usury
185
Prevtion of someone from unduly persuing their livelihood
Retraint of trade
186
Privisions in a contract that disclaims liability for negligence
Exculpatory clauses
187
A contract calling for the sale of land or an interest therein requires the agreement
Must be evidenced in writing
188
A contractn ot be to performed within one year requires the agreement
Must be evidenced in writing
189
A contract for the sale of goods for a price of $500 or more requires the agreement
Must be evidenced in writing
190
A promise by one person to pay the debt of another requires the agreement
Must be evidenced in writing
191
A promise made in consideration of marriage (pre-nup) requires the agreement
Must be evidenced in writing
192
A promise by the executor or adminstrator on an estate to pay the debt of the estate out of their own funds requires the agreement
Must be evidenced in writing
193
UETA and ESIGN remove barriers based on method of transaction or
Electronic documents
194
What prohibits outside evidence that contradicts written evidence
Parol evidence rule
195
What is privity?
For a person to have a legal interest in a contract, they must be a party to the contract
196
Novation
A three party agreement permitting on eof the parties to be excused and another to take their palce
197
What is the termination of completion of a contract
Discharge
198
One party fails in a material way to perform their obligations
Breach
199
If one party failed to perform, it is recommended that they obtain a
Release
200
Where one party voluntarily relinquishes their rights
Waiver
