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Law Exam Flashcards

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0
Q

What is the reliance on precedent for common and civil law

A

Common strong

Civil weak

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1
Q

The major source of law in common law is

A

Judicial decisions

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2
Q

What is the role of lawyers in common and civil law

A

Common frame and present case

Civil advise and inform

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3
Q

What is natural law

A

Laws that govern people are down in nature. Often referred to as a form of higher law. Has moral overtones

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4
Q

What is positive law

A

The belief that law should reflect the will of the majority

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5
Q

What is substantive law

A

Concerned with the content or substance of the law. “What law is asking you to do and not do.”

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6
Q

What is procedural law

A

Governs the process of the law. How does the whole system work.

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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

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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

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9
Q

Which courts have no lifetime appointments, have fixed terms, and salary is not protected?

A

Legislative courts

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10
Q

Which courts can’t reduce salary, have lifetime appointments

A

Constitutional courts

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11
Q

Which courts are article III courts

A

Constitutional courts

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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

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13
Q

Name the three tiers of constitutional courts

A
  1. Us District Courts
  2. US court of appeals
  3. Supreme Court
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14
Q

True or false? US District courts have both civil and criminal jurisdiction

A

True

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15
Q

How many permanent US courts of appeals are there?

A

13

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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

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17
Q

Name the state court systems

A
  1. State Supreme Court
  2. Appellate Court
  3. General Jurisdiction- power to hear any case that falls within the general judicial power of the state. Major trial courts of the state
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18
Q

Describe the state courts of limited jurisdiction

A
  1. 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.
  2. JP courts- have both criminal and civil jurisdiction. Often called small claims courts. Up to 2 thousand $
  3. Municipal courts- traffic courts
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19
Q

What does trial de novo mean

A

Entirely new trial

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20
Q

What does en banc mean

A

Panels

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21
Q

Name 4 ways a case can go from state to federal court

A
  1. Arises under the constitution
  2. Laws made by congress
  3. Original jurisdiction
  4. Diversity jurisdiction- 2 parties involved from different states.
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22
Q

President can only appoint a federal judge with consent of the

A

Senate

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23
Q

Selection of district court judges is heavily influenced by

A

State politics and the states US senators

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24
Q

Selection of court of appeals judges and Supreme Court judges is influenced by

A

President and national politics

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25
Q

What is senatorial courtesy

A

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

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26
Q

Supreme Court nominees are chosen for there

A
  • Ideology
  • Representational qualities- using political strategy to appeal to a group of people
  • Professional competence
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27
Q

Three election methods for state judges

A

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

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28
Q

Three situations a judge can be removed

A

Illegal acts
Abusing power
Incompetent or senile

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29
Q

Formal method for removal of federal judges

A

Impeachment by majority vote of house followed by trial in senate with conviction by 2/3 of senate

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30
Q

Legislative address

A

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

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31
Q

What is a complaint

A

Plaintiff puts blame on defendant alleges negligence and states what remedy they seek from the court

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32
Q

General damages

A

Hospital bills, lost income, damage to property

33
Q

Punitive damages

A

Designed to impose a monetary punishment upon persons who act in a reckless manner. Purpose is to make example

34
Q

Service

A

Next step after complaint, defendant is notified formally that legal action has been brought against him

35
Q

Summons

A

Issued by the court clerk, directs defendant to submit an answer- a written account if what happened

36
Q

Demurrer

A

Motion to dismiss the complaint

37
Q

Discovery

A

Both parties ask for and receive information from each other

38
Q

Three forms of discovery

A

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
Q

When are leading questions forbidden

A

Cross examination

40
Q

Summary judgement

A

Decision by a judge to rule in favor of one party because the opposing party failed to meet a standard of proof

41
Q

Prima facie case

A

At first glance- the plaintiffs version of the facts and legal theories is credible

42
Q

Motion for directed verdict

A

Defense may request a directed verdict from the judge after each side presents it’s case. Defense can, state cannot

43
Q

Privileges

A

Conversations between two people that the witness does not have to reveal

44
Q

3 examples of privileges

A

1 between attorneys and clients
2 physicians and patients
3 clergy and penitents
4 some states but not all have a marital privilege

45
Q

Hearsay

A

Statements made in reference to a person that is not in the courtroom and therefore can’t be cross examined

46
Q

Three characteristics of hearsay

A

An assertion made by someone other than the testifying witness that is offered to prove the truth of the matter stated

47
Q

Name some exceptions to hearsay

A

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
Q

Exclusionary rule

A

Rule that holds that evidence obtained through violations of the constitutional rights of the defendant must be excluded from trial

49
Q

Taxpayer suits

A

Filed by someone aiming standing solely on the basis of status as a taxpayer

50
Q

Standing

A

Right to bring a case before court

51
Q

Taxpayer suits are not good enough for standing in court. What is the exception

A

When it involves the first amendment and religious freedom

52
Q

When is a case considered moot

A

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
Q

An exception to moot was

A

Capable of repetition yet evading review

54
Q

Jurisdiction has three facets

A

Geographic limitations
Subject matter limitations
Personal or in rem jurisdiction

55
Q

In rem jurisdiction

A

Filed against the property itself

56
Q

In person im jurisdiction

A

Directed toward a particular person

57
Q

Original jurisdiction

A

Doctrine that asserts that the only proper way to interpret the constitution is in conformity to the intentions of the framers

58
Q

Interpretivism

A

The person who wrote the constitution selected certain principles they deemed fundamental and incorporated them into a written constitution

59
Q

How is interpretivism different from original intention

A

The advocate of interpretivism realizes that the intent of the framers cannot always be ascertained

60
Q

Noninterpretivism

A

The framers never intended to create a constitution frozen forever in the 18th century

61
Q

When is a search reasonable?

A

Valid search warrant from a judge or magistrate

Pursuant to lawful rest

Permission is granted

Stop and frisk

Automobiles

Plain view

62
Q

Elements of a crime

A

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
Q

Direct causation

A

Means that nothing intervenes between cause and effect

64
Q

Proximate cause

A

Defendants act causes the injury and there were no intervening causes

65
Q

Procedural due process

A

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
Q

Substantive due process

A

Evaluation of the fairness of a judicial proceeding

67
Q

Ultra vires

A

When an agency attempts to exercise powers beyond its statutory authorization

68
Q

Eminent domain

A

Government can take private property for public purposes if the landowner is justly compensated

69
Q

Physical taking

A

Occurs when government takes physical property for public use under its power of eminent domain. Compensation must b provided

70
Q

Regulatory taking

A

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
Q

Tort law is designed to protect three types of interests

A

The person

Tangible property

Intangible interests

72
Q

What must be proved in negligence case

A

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
Q

Requirements for forming a contract

A

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
Q

Promissory estoppel

A

A contract remedy that is employed where one party had changed positions in reliance of the other party’s gratuitous promise

75
Q

Repudiation

A

Impossibility of performance as protection from legal liability

76
Q

Difference between sole proprietorship and partnership

A

Sole proprietorship has a single owner who alone profits

Partnership has two or more people involved

77
Q

Real property vs personal property

A

Real property is the land itself

Personal property are items that can be severed without injury

78
Q

Tangible property vs intangible property

A

Tangible - can be touched

Intangible- can’t be touched

79
Q

Writing is required when the contract involves

A

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

Law Exam (1 decks)

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