Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Legal Methods > Legal Methods Final Exam > Flashcards

Legal Methods Final Exam Flashcards

1
Q

T/F A fundamental tenet of state constitutions and the federal constitution is the separation of powers between the legislative, executive, and judicial branches of government

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Lawmaking functions rest primarily with which branches of government?

A

Legislative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

T/F The US Congress can amend the US Constitution in the same manner that can enact legislation?

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

T/F Legislative enactments supersede inconsistent common law

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

T/F The Florida state legislature may not enact a statute that modifies Florida CL

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

T/F If a statue codifies existing CL case that developed the CL Rule will provide guidance in interpreting the statute

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Within a jurisdiction, which of the following must not conflict with the jurisdictions constitution?

A

All of the above (jurisdiction’s statutes, jur regulations, jur CL)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

A statute is controlling as to the subject it encompasses, unless the statute is unconstitutional

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Which is true about appellate courts?

A

They hear cases in which at least one party believes the trial judge erred on a point of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

T/F A rule is a story of an incident in which a court acted or may act to settle a dispute?

A

False. A fact is a story…

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

T/F Properly adopted admin regs have the same legal effect as statutes, so long as they are consistent with the Constitution and relevant statutes

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Fed legal rules come about when:

A

All of the above, The US Congress enacts a statute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

T/F Each fed court of appeals has jurisdiction to hear appeals from districts within its circuit and may affirm or reverse decisions of the district courts within its circuit

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

T/F A state court may hear questions of fed law as well as state law

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

T/F Judicial decisions outside the jurisdiction may be persuasive but are never binding

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

When interpreting statutes, courts…

A

Will refuse to enforce unconstitutional legislation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

In the fed court system, when a party appeals a decision by a federal district court, the appeal is normally next heard by

A

3 judges of the US Court of appeals for the governing circuit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

T/F Restatements, which are formulations of CL rules drafted by scholars for the American Law Institute, and trial court opinions, which are sometimes published in some jurisdictions, are primary authority

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Which is/are secondary authority?

A

All of the above- Law review articles, legal encyclopedias, loose-leaf reports, restatements, treaties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

T/F An Ohio trail court is bound by decisions from the Ohio Supreme Court and the Ohio Court of Appeals, But the Ohio Trail court is not bound by decisions from other Ohio trial courts

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

T/F The US Supreme Court is the only federal court that can control the state’s highest court on matters of that state’s law

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

A judicial opinion contains the decision when the rule of law is applied to the particular facts of the case, this decision is known as the

A

Holding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

T/F Unlike dicta, which may indicate how a court may rule in the future, a concurring or dissenting opinion indicates only that a judge disagreed strongly enough to write a separate opinion

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

T/F Stare Decisis applies only when the pending case is similar enough to the prior case to justify the application

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

A person who drives faster than the posted speed limit is guilty of speeding. This is an example of…

A

Declarative Rule. Not Discretionary, Prohibitive, nor mandatory

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

In Exceptional circumstances, a court may depart from a strict application of stare decisis and refuse to follow its own, other wise called…

A

Overrules

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

T/F State Admin regs from a different state are primary authority

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

T/F Court rules are secondary authority

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Which of the following is not true about published federal sources of law…

A

Fed common law is published in the Restatement 3rd of the Fed Law in common

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

T/F Penal statutes are to be narrowly construed. Remedial statutes should be liberally construed (read broadly) to accomplish their remedial purpose

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

A __________ is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action

A

Inference. Not policy, custom, principle, nor induction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

T/F Admin law is secondary authority and consists of the rules and regs of admin agencies and the court opinions interpreting them

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

T/F Stare Decises is an earlier court decision on an issue that governs or guides a subsequent court

A

False (could be true)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

T/F Case law is made only when there is an absence of enacted law

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Which branch of gov creates admin law

A

Executive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

The US Court of Appeals for the 9th circuit has crafted a four-factor test for one element of a fed statute. California is located within the 9th fed appellate circuit. The US District Court for the Southern District of California, in interpreting the same Fed statute, should…

A

Use the test because the decision is binding precedent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

T/F When interpreting a statute, courts must first consider the legislative history, such a s committee reports, speeches, witness testimony, or studies introduced into the record, as it is the best evidence of the legislative intent

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

T/F States create their own constitutions which can grant more protections for individuals, but cannot lessen the rights granted by the US constitution

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

In a breach of K case where the parties dispute the quantity of diesel fuel promised and delivered, the total number of gallons of diesel, fuel actually delivered is

A

Determinative fact. Not hybrid, logical syllogism, explanatory

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

T/F If no statute currently applies to a dispute, a court must extend CL principles to the dispute even if it concludes that the matter is better left to legislative action

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

T/F A constitution defines the reach of statutory authority, but statutes cannot limit the application of CL

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

If you initiated the lawsuit in a proper Florida state trial court, a derision of the supreme court of the US interpreting the 4th amendment to the US constitution is ______________ on the fed issue (Primary, Secondary, Binding, Persuasive)

A

Primary/Binding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

If you initiated the lawsuit in a proper fed trial court, a decision of the US Court of Appeals for the 11th Circuit interpreting the Florida CL is ____________ on the state issue (Primary, Secondary, Binding, Persuasive)

A

Primary/persuasive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

If you lose in fed trial court and argue your client’s appeal to the US court of appeals for the 11th circuit, a law journal article (Primary, Secondary, Binding, Persuasive)

A

Secondary/Persuasive

45
Q

If you initiated the lawsuit in a proper fed trial court, a decision of the Supreme Court of Florida interpreting the Florida CL is ___________ on the state issue (Primary, Secondary, Binding, Persuasive)

A

Primary/ Binding

46
Q

What is the (Steps of the Trial???)

A
  1. Discovery stage> Client Intake > Research > Office Memoranda
  2. Initial Negotiation > Demand Letter
  3. Filing a Lawsuit > Complaint > Answer
  4. Factual Discovery > Ints. > Docs > Depos
  5. Motions > Dismiss > Summary Judgment
  6. Trial > Statements > Examinations > Evidence
  7. Appeal > Notice > Appeal Briefs
47
Q

Difference between holding and dicta?

A

Holding- The “holding” of a case states the “rule of the case”, meaning it has been decided (“held”) to favor one side or the other because of the rule
Dicta- refers to just about anything else mentioned in the opinion of the court that made the ruling, but does not establish the rule itself.

48
Q

Fact based analysis ranks (in order)

A
  1. Sort the Facts, deciding which facts support each side (in some cases both sides)
  2. Review the Fact-based inferences you’ve generated and choose the strongest one or two
  3. Write sentences that tie together the fact and the law
  4. Check to make sure you’ve told the reader explicitly how the facts and law are connected
49
Q

Fact? (Case Brief Definition) (2 types of facts)

A
  1. Legally relevant facts – facts that affect the holding or which way the issue is decided
    The opinion often includes irrelevant facts and background information; why?
  2. Procedurally relevant facts – facts that describe at what stage in the case an error may have occurred
    These are more relevant in the context of litigation
    And will make more sense after you have taken Civil Procedure
50
Q

Rule? (Case Brief Definition)

A

Legal Principle relevant to the particular factual situation presented

51
Q

Critical legal theory?

A

Politically biased and maintains that everyone else is politically biased too. Analyzes race theory and feminist theory too.

52
Q

Conjunctive Rule?

A

list of mandatory rules

53
Q

Disjunctive Rule?

A

either/or tests.

54
Q

Synthesizing a rule???

A

???

55
Q

Know how to pick out how many elements are in a rule

A

???

56
Q

What are the 3 most important steps of analyzing a statute?

A
  1. Reading the Statute
  2. Identifying the Issues
  3. Interpreting the statute’s language
57
Q

What’s the difference between a conjunctive rule and a disjunctive rule?

A

The two rule structures lie in the introductory language specifying whether all sub-parts are required or whether any single sub-part is sufficient

58
Q

Name 3 tools for statutory construction

A
  1. Read Narrowly (strictly construed)
  2. Read Broadly (liberally construed)
  3. Make sure a certain conduct is addresses
59
Q

Name 3 canons of construction

A
  1. Penal Statutes are to be narrowly construed
  2. A statute is to be construed in light of the harm the legislature meant to remedy
  3. Statutes in derogation of the CL are to be narrowly construed
60
Q

How do you present a statutory analysis in writing?

A

Process of determining how statutes apply to a given situation and what effect they have. Use the tools given earlier. Courts prefer to use plain meaning

61
Q

What is Enacted Law?

A

Body of a law adopted by the people or legislative bodies. It includes: Constitutions as adopted by the people. Statutes (ordinances/laws) passed by legislative bodies, and; Regulations passed by administrative bodies that have the force of law.

62
Q

What is the Hierarchy of Law (high to low)?

A

Constitution > Statute > Regulations > Cases

63
Q

What is Primary Binding (mandatory) Authority?

A

Authorized statements of law issued by governmental bodies. This category includes court opinions, constitutions, legislation, regulations and rulings of administrative agencies and other similar documents that carry the force of law

64
Q

What is Primary Persuasive Authority?

A

Can include court decisions of other jurisdictions, which do not have to be followed but which may be used as examples of good reasoning.

65
Q

What is Secondary Binding (mandatory) Authority?

A

No such thing. Secondary sources can be used only as persuasive authority

66
Q

What is Secondary Persuasive Authority?

A

Descriptions of, or commentary on, the law. This category includes law review articles, treatises, Restatements of the Law, legal encyclopedias and other similar items.

67
Q

What is Inductive Reasoning?

A

Two variations: The outcome of another specific case, or the likelihood of the truth of a general proposition. Also known as Analogical Reasoning.

68
Q

What is Stare Decisis?

A

Precedent. Where judges are obliged to use precedent in determining court cases.

69
Q

What is Precedent?

A

An example used before

70
Q

What are the 3 levels of Court Systems (Top-Down)?

A

Courts of Last Resort (Supreme Courts) > Middle Level (Appeals Courts) > Trials Courts (District Courts)

71
Q

Where’s Florida in the Geographical Federal Circuit?

A

US Court of Appeals for the 11th Circuit

72
Q

What is Dicta/Dictum?

A

Statement in the opinion that helps explain the court’s reasoning by addressing questions not squarely presented in the dispute before the court.

73
Q

What is Holding?

A

Court resolution (Yes/No) of an issue before it

74
Q

What is the difference between Dicta and Holding?

A

The “holding” of a case states the “rule of the case”, meaning it has been decided (“held”) to favor one side or the other because of the rule. A “dictum” refers to just about anything else mentioned in the opinion of the court that made the ruling, but does not establish the rule itself.

75
Q

What’s a Primary Source (with examples)?

A

Made by a legislature, agency, or court with the power to make or determine law (statutes, regulations, and cases)

76
Q

Where would you find Administrative Regulations?

A

Federal and State agencies

77
Q

What’s a Secondary Source (with examples)?

A

Not law, instead it describes or discusses law (restatements, textbooks, treatises, comments, encyclopedias)

78
Q

What’s a Restatement?

A

Most authoritative secondary source. From the American Law Institute. Restatements seek to “restate” the legal rules that constitute the common law in a particular area (Torts, Contracts, Property)

79
Q

What is En Banc Opinion?

A

French for from the bench. a session where a case is heard before all the judges of a court – in other words, before the entire bench – rather than by a panel selected from them

80
Q

What is a Discretionary Rule?

A

Term denoting a legal rule which may be departed from by agreement between the parties concerned (as opposed to a mandatory rule, which is in all cases binding and not transactional).

81
Q

What is Formalism?

A

separation of legal reasoning (or “application” of norms to facts) from normative or policy considerations

82
Q

What is Deductive Reasoning?

A

AKA Rule-based Reasoning. More formal than IR.

83
Q

Examples of Mandatory Primary Authority

A

constitution, statutes, case law, court rules and regulations

84
Q

Examples of Persuasive Primary Authority

A

Same as mandatory

85
Q

What are Annotations?

A

a history to previous annotations and subject matter you are researching

86
Q

Prohibitory Rule?

A

forbids someone to act and is expressed by “shall not” “may not” “Must not”

87
Q

Discretionary Rule?

A

Gives someone the power or authority to do something. That person has the discretion to act but isn’t required to do so

88
Q

Declaratory rule?

A

Simply declares that something is true. “A person who drives faster than the speed limit is guilty of speeding”. A police officer can give you a ticket.

89
Q

Mandatory Rule?

A

requires someone to act. “Shall” or “Must”

90
Q

What are the 7 Legal Theories?

A
  1. Natural Law Theory
  2. Formalism
  3. Legal Realism
  4. Legal Process
  5. Fundamental Rights
  6. Law & Economics
  7. Critical Law Theory
91
Q

Natural Law Theory

A

Principle Based Reasoning. Where law began.

92
Q

Formalism

A

Law is a science. Christopher Columbus Langdell was the father of this. Justice Scalia is famous for this too. Rule Based Reasoning

93
Q

Legal Realism

A

Judges make law, they don’t find it. Oliver Wendell Homes is famous for this. Policy Based Reasoning

94
Q

Legal Process

A

Ruth Bader Ginsburg. Law is a result of a fair and just process. Rule Based Reasoning

95
Q

Fundamental Rights

A

Earl Warren is famous for this. promote justice and that human welfare outweighs the need for predictability and stability. Principle Based Reasoning

96
Q

Law and Economics

A

conservative response to the Warren court. policy based.

97
Q

Critical Legal Theory

A

Narrative Reasoning. Considers law to be purely political and subjective

98
Q

Conjunctive Rule

A

elements of a rule are often linked with the word “and”

99
Q

Disjunctive

A

the word “or” is used, so only one element is linked

100
Q

Exceptions to Rules

A

words like “unless” however, and provided that are used

101
Q

Conjunctive Test

A

sets out a test with a list of mandatory elements

102
Q

Disjunctive Test

A

Either/or test

103
Q

Factors/Aggregate Test

A

flexible standard guided by certain criteria/factors

104
Q

Balancing Test

A

balances countervailing considerations against each other

105
Q

Defeasible Rule

A

rule with one or more exceptions

106
Q

Simple Declarative Rule

A

contains no elements, factors, or other subparts

107
Q

Rules combining several structures

A

DUH

108
Q

Where does legislative history come from?

A

committee reports, speeches, witness testimony, studies

109
Q

Statutes may bind courts, but…

A

a court has the authority to interpret the statute’s language. Court also determines the constitutionality of a statute, thus they have the last word

Legal Methods (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions