Law Flashcards
What are the 4 primary sources of law?
- Constitutional Law
- Statutory Law/Legislation
- Common Law/Case Law
- Administrative Law
True or False:
Constitutional Law exists at both the federal and state level.
True
How are statutory laws created and approved?
Created by a legislative body (Congress) and approved by the executive branch (president or governor).
What’s another name for common law?
Case law
Who makes common laws?
Appellate courts
When a decision from an appellate court becomes a case precedent, where is it binding?
Usually only binding within the jurisdiction of the court setting the precedent
What is the doctrine of stare decisis?
A principle that similar cases with similar facts and issues should have the same judicial outcome.
What does administrative law regulate?
The exercise of authority by government agencies.
What’s another name for administrative law?
Regulations
How are secondary sources of law different than primary sources?
They have no independent authority and are not legally binding.
What are restatements of the law?
Summaries of common law.
Collections of uniform legal principles in a specific area of law that are designed to reduce the complexity of judicial decisions.
What are two examples of restatements of law?
Torts and contracts
What are uniform model statutes?
Statutes drafted by legal experts, in hopes that they will be used or adopted by state legislatures to provide uniformity in laws between the states.
What are civil laws designed to do?
Compensate individuals
What are criminal laws designed to do?
Protect society through penalizing violators with fines and imprisonment.
What do substantive laws do?
Provide individuals with rights and create certain duties.
What do procedural laws do?
Provide a structure and set out rules for pursuing substantive rights.
What’s the difference between public and private laws?
Public laws are created by government entities while private laws (like contracts) are recognized as binding even though no specific statute or regulation provides for the rights of the parties.
What are the two roles of the judiciary?
- Courts adjudicate disputes
2. Certain courts are charged with the responsibility of judicial review.
Are most court cases filed in federal or state courts?
State courts
What are the two types of state courts?
State trial courts and state appellate courts
What are the principal federal trial courts?
U.S. district courts
What are federal appellate courts called?
U.S. courts of appeal
What is the ultimate arbiter of federal law?
U.S. Supreme Court
Does litigation in out-of-state courts increase or decrease costs?
Increase costs
True or False:
Federal Courts are Courts of Limited Jurisdiction.
True
Subject Matter Jurisdiction:
Federal Courts may hear cases under what circumstances:
- Federal questions (claims arising under the U.S. Constitution, an act of Congress, or a treaty)
- Diversity of citizenship (parties to the dispute reside in different states and the lawsuit involves more than $75,000)
- If the US is a party
What is concurrent jurisdiction?
When a case can be brought to either state or federal courts
What is exclusive jurisdiction?
When a case can only be brought in either a state court or a federal court
Personal Jurisdiction:
A court has personal jurisdiction under what circumstances?
- Residents and businesses located in the state
- Non-residents with minimum contacts
- Non-residents owning property
- Voluntary – Forum Selection Clause
What is the legal concept that defines the most appropriate location for the trial within a jurisdiction?
Venue
Typically, where does a state statutes provide the venue in a civil case?
Where the defendant resides or is headquartered
What is the requirement for a class action case?
If defendant’s conduct affects many parties in same way.
Define pleadings.
The formal allegations by the parties to a lawsuit of their respective claims and defenses
What is involved in the pleadings stage?
Complaint, summons, answer, counterclaim
What is involved in the discovery stage?
Depositions, interrogatories, and requests for production
Define deposition.
The oral questioning of any person who may have helpful information about the facts of a case
Define interrogatory.
Written question to a party to a lawsuit and its attorney.
What is not allowed and is considered a felony (due to Sarbanes-Oxley) during the discovery stage?
Destruction of documents intended to impair their use in official proceedings, even if an investigation is only pending.
True or False:
An appellate court can hear a case and make a ruling based on disagreeing with the original verdict.
False:
An appellate court will review the manner in which the trial judge applied the law to the case and conducted the trial.
What are some disadvantages to litigation?
Cost, time, privacy, expertise, and difficulty preserving a business relationship
What are some benefits of settlements?
Cost effective, minimizes bad publicity, and may preserve business relationships
What does ADR mean?
Alternative dispute resolution
What are some types of ADR?
Settlement, arbitration and mediation
Is arbitration binding?
Yes, it is contractual and binding.
Can arbitration and mediation happen at the same time?
Yes, mediation often occurs at the same time arbitration moving forward
True or False?
Mediation is binding
False
True of False?
States have power to protect general welfare of citizens.
True
Do states or the federal government have limited power to regulate individuals and businesses?
Federal government
What are the limited powers granted to the 3 branches of federal government?
Enumerated powers
What is judicial review?
The power of federal courts to review acts of the legislative and executive branches of government to see if they violate the Constitution
What is the most lenient form of judicial review?
Rational basis
What is the strictest form of judicial review?
Strict scrutiny
Describe rational basis judicial review.
The most lenient form of judicial review. Presumption is that the legislation is constitutional
Which level of judicial review deals mostly with economic and tax cases?
Rational basis
Describe strict scrutiny judicial review.
The strictest form of judicial review. Presumption is that the legislation is unconstitutional.
Which level of judicial review deals with fundamental rights or suspect classifications?
Strict scrutiny
What does the Commerce Clause regulate?
It gives Congress power to regulate commerce among the several states.
What does the Supremacy Clause state?
Federal laws are always supreme to any conflicting state law
What does the doctrine of preemption state?
Federal law preempts state law even when they conflict.
What are the first 10 amendments to the Constitution?
The Bill of Rights
What does The Bill of Rights contain?
Specific guarantees of individual liberties and limitations on the federal government from infringing with those liberties
What does the First Amendment guarantee?
Freedom of religion, speech, press, and assembly
True of False?
Political speech is entitled to more protection than commercial speech.
True
What kind of speech is not protected by the First Amendment?
Speech that creates a “clear and present danger” by inciting imminent violence
True or False?
Contracts should be viewed as a planning document.
True
Which of the below is a goal of contracts?
- To have a workable deal
- To enforce through litigation/arbitration
- To have a workable deal
Are oral contracts enforceable?
Yes, but they are difficult to prove
Are gifts considered an enforceable contract?
No, gifts are not a contract and are not enforceable
What do courts do when faced with an illegal contract?
They leave the parties in the same position as they find them
What is a consideration?
A thing of value exchanged in a contract that includes, money, services, an object, a promise, forbearance, or giving up the right to do something
What is capacity?
The ability (requisite presence of mind) to enter into a binding contract
Do minors have full, limited or no capacity?
Limited capacity
True or false?
Minors can not only disaffirm a contract but enforce it if it is advantageous to them
True
What is the usual remedy for breach of contract?
Compensation or money damages to make the victim “whole”
What is the usual remedy for breach of contract for irreplaceable goods?
“Specific performance”
What is “specific performance”in contracts?
The party that breached a contract must do something, e.g. perform its obligations under the contract
True or false?
Employment contracts can have “specific performance”
False. People cannot be forced to work for another party because of the 13th Amendment (abolishes slavery and involuntary servitude).
Are oral agreements to arbitrate binding?
No, the Federal Arbitration Clause requires parties to agree to arbitration in writing
