Legal Aspects of RE - Chpt 1 Law Overview Flashcards
(63 cards)
What are the two main courts in the United States?
The federal court system and the state court system
What are judicial circuits?
Areas served by the US Court of Appeals
What are the two types of courts in California?
Trial courts and appellate courts
What do appellate courts do?
Hear and make decisions on the appeals from the decisions of the trial courts
What is the basis of law in the United States?
Common law
What do we call the overall accumulation of judicial decisions?
Case law
What did the Romans contribute to the legal system?
Civil law
Why did Spanish civil law form the basis for California’s early legal system?
California was originally under Spanish control.
What is a substantive law?
A law that establishes and controls the rights and duties of parties. Laws regarding contracts and real property fall into the category of substantive law. A law that prohibits trespassing on someone else’s property is an example of a substantive law because it creates and explains trespassing and gives potential trespassers warning about their possible liability or punishment for disobeying the law.
What is a procedural law?
A law that sets out the methods for enforcing the rights and duties under substantive law. A specific example of a procedural law is a statute of limitations. A statute of limitations creates a time limit for filing a civil lawsuit or initiating a criminal prosecution. Normally, the time limit is measured from the date the event occurred. This means that in a personal injury case, for example, a lawsuit must be brought within a certain period of time after the injury occurred; otherwise, it cannot be initiated. Even if a case is substantively very strong, a court will discharge the case on procedural grounds.
What is Civil Law?
The law of private rights and duties. An example of a civil law is a law providing that all property sale contracts must be in writing. This is a civil law because it addresses the duties between private parties. Any violation of a civil law is an offense between the parties, not an offense against the whole community. A person who suffers injury due to the act of another person typically has the right to sue that person for compensation. When a person brings such a suit, it is called a civil suit, a civil action, or civil litigation.
What is Criminal Law?
The law of public rights and duties. Criminal law creates and controls offenses committed against the whole community. We call criminal law violations crimes. Some examples include assault, burglary, and robbery. The government takes more interest in criminal acts than it does other types of injury. The government will often take action to prosecute an individual accused of a crime, even without cooperation from the victim. On the other hand, a personal injury civil case will only go to trial if the injured person decides to sue.
What is an injunction?
An injunction is a court order requiring a party to do, or not to do, an act. For example, after finding a corporation liable for patent infringement, a judge may issue an order enjoining the corporation from further infringing of the patent.
What is Specific performance?
Specific performance is a court order requiring a party to perform a contractual duty. For example, a purchaser who paid money for real property may sue the seller seeking the equitable remedy of specific performance if the seller refuses to deliver the deed. The purchaser wants the property and the deed, not a refund of the money paid.
What is a substantive law?
A law that establishes and controls the rights and duties of parties
What is a procedural law?
A law that sets out the methods for enforcing the rights and duties under substantive law
Define civil law and criminal law.
Civil law is the law of private rights and duties.
Criminal law is the law of public rights and duties.
What are four areas of difference between civil law and criminal law?
Concerns
Party filing the case
Burdens of proof
Goals
What is Due process?
Amendments 5 and 14 guarantee due process, which requires a fair hearing by an impartial judge. This would be important for an agent accused of misrepresentation or other misconduct.
What is Equal Protection?
Amendment 14 prohibits governments from adopting laws that discriminate between and among certain groups of people.
What is just compensation?
Amendment 5 prohibits the government from taking private property for public use “without just compensation.” Eminent domain allows the government to take private property, but not without paying the fair value of the property it takes.
Define “No unreasonable searches or seizures”
Amendment 4 requires that a judge issue a warrant for a search. A warrant may be issued only if there is “probable cause” for such a search.
Define “Defense against certain government actions”
The government may not take an action that interferes with certain rights. For example, Amendment 1 protects freedom of speech, so a local government cannot pass a law that says groups cannot congregate in a public place for a peaceful rally. Note however, that the owner of a shopping center can prohibit that same group from conducting the rally on his parking lot because that is his private property, unless the local government passes a law that requires shopping center owners to allow peaceful rallies on their property.
Name three important sources of United State law.
US Constitution
State constitutions
Court decisions
