Law Exam Flashcards
0
Q
What is the reliance on precedent for common and civil law
A
Common strong
Civil weak
1
Q
The major source of law in common law is
A
Judicial decisions
2
Q
What is the role of lawyers in common and civil law
A
Common frame and present case
Civil advise and inform
3
Q
What is natural law
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Laws that govern people are down in nature. Often referred to as a form of higher law. Has moral overtones
4
Q
What is positive law
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The belief that law should reflect the will of the majority
5
Q
What is substantive law
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Concerned with the content or substance of the law. “What law is asking you to do and not do.”
6
Q
What is procedural law
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Governs the process of the law. How does the whole system work.
7
Q
Which draws more controversy, procedural or substantive law?
A
Procedural draws more controversy because it provides loopholes which criminals are sometimes allowed to slip
8
Q
What is stare decisis
A
Essentially the doctrine of precedent. Refers to the policy of courts to follow the rules laid down in previous judicial decisions and to refrain from disturbing established points of law
9
Q
Which courts have no lifetime appointments, have fixed terms, and salary is not protected?
A
Legislative courts
10
Q
Which courts can’t reduce salary, have lifetime appointments
A
Constitutional courts
11
Q
Which courts are article III courts
A
Constitutional courts
12
Q
True or False? Constitutional courts are classified as courts of general jurisdiction
A
False. Constitutional courts may be classified as either general or specialized jurisdiction
13
Q
Name the three tiers of constitutional courts
A
- Us District Courts
- US court of appeals
- Supreme Court
14
Q
True or false? US District courts have both civil and criminal jurisdiction
A
True
15
Q
How many permanent US courts of appeals are there?
A
13
16
Q
Why is there no typical state court system
A
Because federalism allow each state to adopt a court system fitted to its individual needs
17
Q
Name the state court systems
A
- State Supreme Court
- Appellate Court
- General Jurisdiction- power to hear any case that falls within the general judicial power of the state. Major trial courts of the state
18
Q
Describe the state courts of limited jurisdiction
A
- County courts- up to several thousand dollars. Limited to county lines. Can function as courts of appeal for lower courts of limited jurisdiction. Known as courts of record.
- JP courts- have both criminal and civil jurisdiction. Often called small claims courts. Up to 2 thousand $
- Municipal courts- traffic courts
19
Q
What does trial de novo mean
A
Entirely new trial
20
Q
What does en banc mean
A
Panels
21
Q
Name 4 ways a case can go from state to federal court
A
- Arises under the constitution
- Laws made by congress
- Original jurisdiction
- Diversity jurisdiction- 2 parties involved from different states.
22
Q
President can only appoint a federal judge with consent of the
A
Senate
23
Q
Selection of district court judges is heavily influenced by
A
State politics and the states US senators
24
Selection of court of appeals judges and Supreme Court judges is influenced by
President and national politics
25
What is senatorial courtesy
The custom of refusing to confirm a presidential appointment to office opposed by both senators from the state of the appointee or by the senior senator of the presidents party
26
Supreme Court nominees are chosen for there
- Ideology
- Representational qualities- using political strategy to appeal to a group of people
- Professional competence
27
Three election methods for state judges
1 election- used in half the states
2 appointment- nominated by the governor with the consent of both the senate and HOR
3 merit selection- combines features from election and appt
28
Three situations a judge can be removed
Illegal acts
Abusing power
Incompetent or senile
29
Formal method for removal of federal judges
Impeachment by majority vote of house followed by trial in senate with conviction by 2/3 of senate
30
Legislative address
Unlike impeachment not reserved for high crime but used in cases of incompetency or senility. Judge does not have to commit an indictable offense to be removed
31
What is a complaint
Plaintiff puts blame on defendant alleges negligence and states what remedy they seek from the court
32
General damages
Hospital bills, lost income, damage to property
33
Punitive damages
Designed to impose a monetary punishment upon persons who act in a reckless manner. Purpose is to make example
34
Service
Next step after complaint, defendant is notified formally that legal action has been brought against him
35
Summons
Issued by the court clerk, directs defendant to submit an answer- a written account if what happened
36
Demurrer
Motion to dismiss the complaint
37
Discovery
Both parties ask for and receive information from each other
38
Three forms of discovery
1 deposition involves taking the sworn testimony of a witness outside open court
2 interrogatory is a written question directed to a party
3 production of physical evidence or subpoena duces Tecum- court requires a person to appear in court or at deposition and to produce items pertaining to the case
39
When are leading questions forbidden
Cross examination
40
Summary judgement
Decision by a judge to rule in favor of one party because the opposing party failed to meet a standard of proof
41
Prima facie case
At first glance- the plaintiffs version of the facts and legal theories is credible
42
Motion for directed verdict
Defense may request a directed verdict from the judge after each side presents it's case. Defense can, state cannot
43
Privileges
Conversations between two people that the witness does not have to reveal
44
3 examples of privileges
1 between attorneys and clients
2 physicians and patients
3 clergy and penitents
4 some states but not all have a marital privilege
45
Hearsay
Statements made in reference to a person that is not in the courtroom and therefore can't be cross examined
46
Three characteristics of hearsay
An assertion made by someone other than the testifying witness that is offered to prove the truth of the matter stated
47
Name some exceptions to hearsay
Statements about the then existing mental emotional physical conditions of the declarant
Purposes of medical diagnosis
Public and religious organization records
Statement of personal or family history
Widely published market reports
48
Exclusionary rule
Rule that holds that evidence obtained through violations of the constitutional rights of the defendant must be excluded from trial
49
Taxpayer suits
Filed by someone aiming standing solely on the basis of status as a taxpayer
50
Standing
Right to bring a case before court
51
Taxpayer suits are not good enough for standing in court. What is the exception
When it involves the first amendment and religious freedom
52
When is a case considered moot
When the problem is no longer a problem and when the party who brought the suit has lost the personal stake in the outcome
53
An exception to moot was
Capable of repetition yet evading review
54
Jurisdiction has three facets
Geographic limitations
Subject matter limitations
Personal or in rem jurisdiction
55
In rem jurisdiction
Filed against the property itself
56
In person im jurisdiction
Directed toward a particular person
57
Original jurisdiction
Doctrine that asserts that the only proper way to interpret the constitution is in conformity to the intentions of the framers
58
Interpretivism
The person who wrote the constitution selected certain principles they deemed fundamental and incorporated them into a written constitution
59
How is interpretivism different from original intention
The advocate of interpretivism realizes that the intent of the framers cannot always be ascertained
60
Noninterpretivism
The framers never intended to create a constitution frozen forever in the 18th century
61
When is a search reasonable?
Valid search warrant from a judge or magistrate
Pursuant to lawful rest
Permission is granted
Stop and frisk
Automobiles
Plain view
62
Elements of a crime
Actus rea- the action of a person accused
Mens rea- individuals state of mind when a crime is committed. A guilty mind must have committed it knowingly,willfully, intentionally
Causation- often the phrase "but for" is used. "But for cains act, Abel would still be alive." Causation is an element that must be proven beyond a reasonable doubt.
Culpability- responsibility or criminal liability for a crime. Find out who are the principals and accessories to the crime
63
Direct causation
Means that nothing intervenes between cause and effect
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Proximate cause
Defendants act causes the injury and there were no intervening causes
65
Procedural due process
Stresses the policies or procedures government must observe when depriving someone of life liberty or property. Person must be given notice and opportunity to be heard
66
Substantive due process
Evaluation of the fairness of a judicial proceeding
67
Ultra vires
When an agency attempts to exercise powers beyond its statutory authorization
68
Eminent domain
Government can take private property for public purposes if the landowner is justly compensated
69
Physical taking
Occurs when government takes physical property for public use under its power of eminent domain. Compensation must b provided
70
Regulatory taking
When the government uses it's regulatory power to restrict or deny the use of property but does not take physical possession of it
71
Tort law is designed to protect three types of interests
The person
Tangible property
Intangible interests
72
What must be proved in negligence case
Defendant owed a duty of care to the plaintiff
The standard of care was breached
That the defendants action was the proximate cause of the injury
The plaintiff suffered some commendable damage as a result of the defendants actions
73
Requirements for forming a contract
two or more parties that has the legal capacity to enter into an agreement
Offer and acceptance
Agreement must be supported by consideration or obligation
74
Promissory estoppel
A contract remedy that is employed where one party had changed positions in reliance of the other party's gratuitous promise
75
Repudiation
Impossibility of performance as protection from legal liability
76
Difference between sole proprietorship and partnership
Sole proprietorship has a single owner who alone profits
Partnership has two or more people involved
77
Real property vs personal property
Real property is the land itself
Personal property are items that can be severed without injury
78
Tangible property vs intangible property
Tangible - can be touched
Intangible- can't be touched
79
Writing is required when the contract involves
Land
Prenup
If what is being contracted CANT be done in a year or less
Agreements involving a surety
When contract involves sale over $5,000
