Law Pt 1 Flashcards
Case Law
Judge-made law. Settle disputes between parties; or interpret legislation
Statutory Law
Made by the legislature declaring, demanding, or prohibiting something.
Constitutional Law
United States Consitution = law of the land.
Plaintiff
Person who initiates the action. Requests the court grant specific relief
Injunction
Plaintiff ordering the party to discontinue the illegal act
Appellant/Appellee
- Person who appeals the case
2. Other party
Remanded
Process where an appeals court returns a case to the trial court to retry the case or to modify the decisions.
Motion to Dismiss
Based on grounds such as failure to state a claim, or a claim barred by the statute of limitations.
Incompetent
Type of evidence where a witness is testifying on a matter for which knowledge or expertise is lacking.
Irrelevant
Type of evidence that fails to clarify or be related to the fact or issue in dispute
Immaterial
Type of evidence to prove or disprove a fact that is uncontested
Consent Decree
An agreement of the parties made under the sanction of the court
Senate
Congressional body responsible for approving presidential nominees for federal courts
Numerosity
Requirement that there must be a large enough number of plaintiffs that individual suits are impracticable
Voir Dire
Done to ascertain whether perspective jurors have the qualifications and ability to be impartial
Depositions
These are conducted by the attorneys of all potential witness to the lawsuit
JNOV (judgment not withstanding the verdict)
post-trial motion by either party asking that the jury verdict be reversed as it represents a legal matter
Interrogatories
Questions to the opposing parties that must be answered in writing and verified by the party to whom they are directed
Summary Judgment
Requires that the moving party demonstrate that
- no genuine issue of material fact remains and
- the governing law indicates that moving party is entitled to judgment as a matter of law
Peremptory Challenges
Used to have a prospective juror dismissed without stating a reason
Usually get three
Must be race neutral
Directed Verdict
Where the plaintiff failed to establish a prima facie case and the defendant is entitled to have a verdict in its favor
Prima Facie Case
Establishment of legally required rebuttable presumption
Law of the Case Doctrine
When a circuit court will not reexamine issues of law addressed by a prior panel from the same court
Typicality
Requirement that claims of the class representatives who are named plaintiffs must be typical of the claims of other class members.
Commonality
Requirement that members of the class must have claims that include common questions of fact or law
11th Amendment
A form of immunity defense used when monetary damages are sought in federal court from a government entity
Certifying a Question
Process of a formal request by one court to another court for an opinion on a question of law
Exculpatory Clause
Within a contract relieves one party of liability if damages are caused during the execution of the contract
Proof beyond a reasonable doubt
is the level of proof required in criminal court
Clear & Convincing Evidence
Provides support for a claim that is highly probably to prove that a certain thing has occured
Preponderance of the Evidence
Is established when something has more likely than not occured
Inherent Authority
type of authority that exists only because it wouldn’t be sensible for an institution to be without it
Apparent Authority
Used to describe the situation where someone acting for the institution induces a belief in other persons that authority exists when it in fact does not
Estoppel
Equitable doctrine and is used when conscience requires it
Ultra Vires Act
act is beyond the delegated authority of a body or official
Tort
Legal injury or wrong committed upon the person or property of another independent of contract.
Tort Law is state law
Assault
Threaten to strike or harm. To prove, must show the act was intentional
Battery
intentional, unwanted, and offensive or harmful touching of another person’s body with the intent to cause the other to suffer the contact.
Is actual harm necessary to bring a battery suit? (T/F)
False
False Imprisonment
another person is restrained, detained, or confined without consent or legal justification.
Mental Anguish (intentional infliction of distress)
one person causes another severe mental distress; sue for damage done to peace of mind
Sexist language and jokes about women drivers may qualify as mental anguish, given their high level of impropriety in the higher education setting
False
To qualify as battery, the contact must result in actual harm
False
Appropriation Invasion of Privacy
Use of another’s name or likeness for the defendant’s benefit
Private life given publicity
public disclosure of private facts, even when facts are true (sharing medical knowledge)
Placement of a person in a false light
Being highly offensive to a reasonable person (putting a person’s name on a list of supporters for a controversial group)
Intrusion upon seclusion
unwelcome entry to another’s home, electronic surveillance, and examination of private papers
Per se
term used when statements, by their nature, are considered defamatory (assumed to have caused harm, accusations of criminal wrongdoing, sexual misconduct)
Per quod
actual damages must be supported
Actual Malice
knowledge of falsity or reckless disregard for the truth
must be proven to prevail in any defamation case
What is needed to prevail in a negligence case?
Duty, Breach of Duty, Proximate Cause, and Injruy
Greatest duty is owed to an..
Invitee (one who enters the premises in an answer to an express or implied invitation)
Negligence
omission of an act that a reasonable person, guided by those considerations that ordinarily regulate human affairs, would do
Gross Negligence
Failure to use even slight care; conduct that is so careless as to show complete disregard for the rights and safety of others
Reasonable Person Attributes (4)
- Physical attributes
- Normal intelligence
- Normal perception/memory with a minimum level of info and experience common to the community
- Superior skill and knowledge as the actor has or holds himself as having
14th Amendment
No state shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Only applies to public colleges
Substantive Due Process
allows courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are enumerated (not specifically mentioned) elsewhere in the Constitution
Theory of Incorporation
Federal courts extended the limitations of the Bill of Rights to the states (no state shall…)
Penumbra Theory
allows the court to identify new rights, when legislature has not (interracial couples, abortion, etc.)
Due Process Violation Procedure
Determine..
- Whether the plaintiff had a liberty or property interest at stake
- Whether govt infringed such an interest
- whether adequate due process procedures were followed
Procedural Due Process Requirements
- Notice
- Opportunity to be heard
- Impartial Tribunal
Facial Discrimination
clear and undisputed (charging students from one country more tuition than from another)
Strict Scrutiny
based on the principle that certain actions must be subjected to close analysis in order to preserve equality and liberty.
Middle/Intermediate Scrutiny
Requires:
1. classification to serve important govt objectives
2. discriminatory acts to be substantially related to the achievement of those objectives
Applied in cases involving sex (male, female) and illegitimacy
Rational Scrutiny
Applied in all cases where the other two do not apply. Must bear only a rational relationship to a legitimate govt. objective.
Section 1983
Must be attached to another federal law (cannot only sue under 1983)
A means to sue state and local governments as well as individuals acting under color of state and local law for damages
Section 1988
Allows prevailing party to recover reasonable attorneys’ fees
Title VI, Civil Rights Act of 1964
Students
No person in the US shall on the ground of race, color, or national origin be excluded from participation in, denied benefits, or discrimination under any program or activity receiving federal financial assistance
Applies to all public and some private
Bevins Rights
Created by the Supreme Court. Used when an individual has been deprived of his rights by a federal official
Section 1981
all persons within the jurisdiction of the US shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence like white people can do
Color
Discrimination involves treating someone unfavorably because of skin color complexion (too light, too dark)
Race
category of humankind that shares certain distinctive physical traits
Title IX
Applies to public and private educational recipients of federal financial assistance.
No person shall be discriminated against based on sex or gender identity
Civil Rights Restoration Act of 1987
Expanded Title IX and 504, Title VI, and the Age Discrimination Act to be institution wide rather than program specific
Age Discrimination Act of 1975
prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance
ADA Title II
Law applies to public colleges
ADA Title III
Law applies to private colleges
Dept of Defense Authorization Act of 1983
Persons eligible to register for the draft and do not are ineligible for federal aid
