Mid-Term Flashcards
Stare decisis
let the decision stand
Mens rea
criminal state of mind
intentional (knowing), reckless, negligent
Voir Dire
literally “speak the truth”
The term used to describe the process of questioning potential jurors (French term)
Tort
a private wrong (French word)
Rule of Law
government of laws, not individuals
Key Elements of Rule of Law
- All persons, including the government, are accountable under the law;
- Fair, publicized, broadly understood and stable laws;
- A fair, robust, and accessible legal process in which rights and responsibilities are evenly enforced;
- Diverse, competent, and independent lawyers and judges
How is The Rule of Law Maintained
Elections, Checks and Balances, Civil Disobedience
Common Law System
origins in England; found largely in English speaking countries; great reliance on past cases (precedent); juries decide facts and judges apply the law
Civil or Code-Based System
origins in Roman law; prevalent on European continent and most non-English speaking countries; reliance on very comprehensive codes; fewer juries; judges often find the facts and then apply the code; little concern about precedent of past cases
Let the Decision Stand – Stare Decisis
Follow precedent; US courts follow cases already decided, especially when the cases are from higher courts
Sources of the Law
State and federal constitutions; treaties; state and federal statutes and regulations; local ordinances; regulations at all levels; consent decrees; presidential executive orders; etc.
Administrative Law
Executive agencies contrasted with independent agencies
Formal rule making contrasted with informal rulemaking
Interpretive Rules contrasted with legislative rules
Delegation of authority by the Legislature
Criminal Law
Society is wronged
People v. defendant
Defendant is prosecuted
Prosecutor v defense lawyer
Right to counsel
Information or indictment
Government discloses
12 jurors for felony
Unanimous verdict required
Beyond a reasonable doubt
Guilty or not guilty
Civil Law
Usually a person is wronged
Plaintiff v. defendant
Defendant is sued
Two attorneys
Lawyers are paid by parties
Summons and complaint
Both sides take discovery
6 jurors
Can be less than unanimous
Preponderance of evidence
Liable or not liable
Federal court system
District Court (trial court for many business cases)
Court of Appeals (Second Circuit in NYC)
US Supreme Court
Jurisdiction
the power of a court to hear a particular case
Three key levels in NY State Court system
NY State Supreme Court (trial court for many business cases)
Appellate Division (Fourth Department in Rochester)
NY Court of Appeals
What court can you ask to hear an appeal from the NYS Court of Appeals?
US Supreme Court
Main State Courts
NYS Supreme Courts
Appellate Division
NYS Court of Appeals
Main Fed Courts
US District Courts
Circuit Courts of Appeal
US Supreme Court
Negating intent
Duress, entrapment, mistake
Strict liability crimes
bigamy, statutory rape, safety, felony murder
Levels of offenses
violation, misdemeanor, felony
Constitutional Limitations
Search & Seizure
Exclusionary Rule
Self-Incrimination
Double Jeopardy
Commercial Bribery
payment to individual, not her employer, for an advantage
U.S. Foreign Corrupt Practices Act
Outlaws payment to foreign officials to secure business
Broad definition of government official
Exception for facilitating payments
Impact on non-U.S. companies
False Claims Act
overcharging the government for goods or services, including selling inferior quality goods instead of what has been ordered
Personal jurisdiction
the legal authority to require the defendant to stand trial, pay judgments, and the like
(When plaintiffs file lawsuits, defendants sometimes make a special appearance to challenge a court’s personal jurisdiction. If the court agrees with the defendant’s argument, the lawsuit will be dismissed.)
Subject matter jurisdiction
a court has the authority to hear a particular type of case
diversity and federal question subject matter jurisdiction in federal courts
Summons
served on a defendant, summons is the court’s written notice that a lawsuit has been filed against the defendant, the summons must be delivered to the defendant when she is physically within the state in which the lawsuit is filed
Interrogatories
These are written questions that the opposing party must answer, in writing, under oath.
Depositions
These provide a chance for one party’s lawyer to question the other party, or a potential witness, under oath. The person being questioned is the deponent. Lawyers for both parties are present.
Production (of documents and materials)
Each side may ask the other side to produce relevant documents for inspection and copying; to produce physical objects, such as part of a car alleged to be defective; and for permission to enter on land to make an inspection, for example, at the scene of an accident.
Complaint
A short, plain statement of the facts she is alleging and the legal claims she is making. The purpose of the complaint is to inform the defendant of the general nature of the claims and the need to come into court and protect his interests.
Class actions
If the court granted her request, she would represent the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed. Class actions can give the plaintiffs much greater leverage because the defendant’s potential liability is vastly increased.
Small claims court
has jurisdiction only over civil lawsuits involving a maximum of, say, $5,000 (the amount varies from state to state)
Money damages only
Only individuals can start a suit there
Corporations and partnerships can be sued there
Can’t sue to get property back
Low filing fees
Relaxed rules of evidence, informal procedure
Attorneys unnecessary, even for corporations and partnership
Discovery objective
lawyers know in advance the answers to practically all questions asked because discovery has allowed them to see the opponent’s documents and question its witnesses
The theory behind civil litigation is that the best outcome is a negotiated settlement and that parties will move toward agreement if they understand the opponent’s case. That is likeliest to occur if both sides have an opportunity to examine most of the evidence the other side will bring to trial.
The highest court in the New York State court system is the
The New York State Court of Appeals
What are examples of sources of the law
The United States Constitution and State Constitution
Statutes drafted by Legislatures
Common law, which is the body of decisional law decided by judge
A key principle of the common law is
Heavy reliance on the precedent of other cases
If a party is sued and loses a civil suit he has been
Found liable
Assume that in 1900 the Minnesota Supreme Court ruled that a minor (someone under the age of 18) could declare a contract she signed to be invalid at any time during her minority, and in 2022, the courts in Minnesota still follow this ruling. This is an example of
Stare decisis
The Environmental Protection Agency is considered what type of agency
Executive
When a jury verdict or a decision of a trial court is appealed, the appellate court hearing the appeal can
Reverse the lower court ruling
Affirm the lower court ruling
Modify the lower court ruling
The requirement that a party sued in a court have sufficient contacts with place where the case is being heard is referred to as
Personal jurisdiction
The rule of law means
A government of laws, not individuals
If a party deliberately fails to perform a contract, their deliberate failure to do so constitutes a crime (when) ?
Never
The requirement that someone wishing to bring a lawsuit must have something at stake in the outcome is known as
Standing
Which of the following are characteristics of a criminal case in New York, but not of a civil case?
Defendants are entitled to free legal representation if they cannot afford to pay for it
Which statement best summarizes natural law?
An unjust law is no law at all
Immanuel Kant’s categorical imperative says an act is ethical only if it would be acceptable for everyone to do the same thing. This is an example of
Deontological ethics
If the President vetoes a bill passed by Congress, in order to override that veto, the following must happen:
Both the House and Senate must repass the bill by a two-thirds margin
True or False?
The Rule of Law can be preserved by elections, check and balances within the Government, and peaceful civil disobedience
true
If Jamal loses a case in the NYS Supreme Court and wants to appeal, he should take the case to
The Appellate Division
True or False?
If Mitch is suing Gordon in a negligence case Mitch will be represented by the local prosecutors office and Gordon can get a court-appointed lawyer if he cannot afford to pay for one
false
What constitutional rights are found in the First Amendment to the U.S. Constitution
The requirement that there be a separation between church and state
The right to freely exercise ones religion
The right to petition the government for the redress of grievances
True or False?
The United States Supreme Court has the power to declare a statue or a government action unconstitutional and void
True
In which form of alternative dispute resolution is an award imposed upon the parties
arbitration
Generally, the burden of proof in a criminal trial is
Beyond a reasonable doubt
True or False?
A criminal defendant can waive his or her right to a jury trial and instead opt for a bench trial (a trial by the Judge)
true
Usually, a warrant is required before law enforcement can search a person’s car or home.
Under which of the following circumstances can a search be conducted without a warrant?
Plain view
Stop and frisk
As part of a lawful arrest
What are the exceptions to the requirement the evidence seized illegally must be excluded?
Inevitable discovery
Good faith exception
Independent source
Miranda warning are designed to provide suspects with information about their rights under
The fifth amendment to the U.S Constitution
True or False?
Only a government can prosecute a crime.
True
When a defendant is convicted of a felony and appeals the guilty verdict, the appellate court hearing the appeal can
Reverse the trial court verdict and acquit the defendant
Affirm the trial court verdict
Reverse the trial court verdict and order a new trial
An indictment, which is the accusatory instrument that initiates a felony prosecution, is issued by
A grand jury
A misdemeanor is distinguished from a felony by
The seriousness of the crime charged and the length of the potential sentence
If a litigant loses a case in federal court and his or her appeal is rejected by the United States Court of Appeals, what must the litigant do to be heard by the United States Supreme Court?
File a petition for a writ of certiorari
If a defendant in a civil action files an answer, and the answer contains affirmative requests for relief against the plaintiff; that request is called
A counterclaim
During the jury selection process, the lawyers can reject a potential juror without giving a reason. That type of rejection of a juror is called
Premptory challenge
True or False?
When law enforcement induces the defendant to break the law, the prosecutor must prove that the defendant was predisposed to commit the crime.
true
Under most circumstance, a defendant may only be tried once for the same crime. What is the term used to describe instances where the prosecution attempts to try a defendant more than once for the same crime or offense?
Double jeopardy
What percentage of civil cases settle before a verdict or judgement?
More than 90%
In federal court, to establish diversity jurisdiction, the party suing there must show (1) that the plaintiff and the defendant are citizens of different states and (2) that the amount in dispute exceeds…
$75,000.00
To prove a violation of the federal RICO (Racketeering Influenced Corrupt Organizations Act), the government must prove (1) that the defendant committed two or more “racketeering acts” and (2) that these acts were committed in furtherance of certain specified goals. If convicted, the defendant can be:
Be sent to jail
Be subject to the forfeiture of his or her property if used in connection with the crime
Be subject to civil lawsuits and claims for money damages
Typical sequence of discovery
- interrogatories
- depositions
- production of documents and materials
- physical and mental examination
Records examples
agency policies, environmental hazards, consumer product safety, taxes and spending, purchasing decisions, and agency forays into foreign affairs
(if a claim is possible, you must retain them)
The federal system
means that law comes from a national government in Washington, D.C., and from 50 state governments
Legal history
The history of law foreshadows many current legal issues, including mediation, partnership liability, the jury system, the role of witnesses, the special value placed on land, and the idea of precedent
Primary sources of law
United States Constitution and state constitutions;
Statutes, which are drafted by legislatures;
Common law, which is the body of cases decided by judges as they follow earlier cases, known as precedent;
Court orders, which place obligations on specific people or companies;
Administrative law, which are the rules and decisions made by federal and state administrative agencies; and
Treaties and agreements between the United States and foreign nations.
Criminal law vs civil law
Criminal law concerns behavior so threatening to society that it is outlawed altogether. Civil law deals with duties and disputes between parties, not with outlawed behavior.
Jurisprudence
concerned with the basic nature of law, 3 theories of jurisprudence are:
Legal positivism: The law is what the sovereign says it is.
Natural law: An unjust law is no law at all.
Legal realism: Who enforces the law is more important than what the law says.
The doctrine of precedent
developed gradually over centuries, requires that judges decide current cases based on previous rulings
Legal positivism
The law is what the sovereign says it is
Legal realism
Who enforces the law is more important than what the law says
Plaintiff
the person who is suing
Defendant
the person who is being sued
Ethics
how people should behave
Ethics decision
Any choice about how a person should behave that is based on a sense of right and wrong
Life principles
These principles are the rules by which you live your life
Nobel Prize–winning economist Milton Friedman (1912–2006) famously argued that
a corporate manager’s primary responsibility is to the owners of the organization, that is, to shareholders
(Others have argued that corporations should instead consider all company stakeholders, not just shareholders)
Studies revealed that the secret to long-term happiness is
having good relationships with a spouse, family, and friends
It is difficult to maintain good relationships while behaving unethically
A company with a good reputation can
pay employees less and charge consumers more
conversely, unethical behavior causes financial harm
To Mill, who wrote utilitarianism, a correct decision is
one that maximizes overall happiness and minimizes overall pain, thereby producing the greatest net benefit
Critics of utilitarianism argue that it is very difficult to measure utility accurately
Deontological ethics
comes from the Greek word for obligation
Proponents of deontological ethics believe that utilitarians have it all wrong and that the results of a decision are not as important as the reason for making it
Kant also believed that human beings possess a unique dignity, and it is wrong to treat them as commodities
The problem with Kant’s theory is that the ends do matter
John Rawls principles
circumstances born as are life prospects
veil of ignorance
difference principle
In thinking about ethics decisions, it is worth remembering that many of us have been winners in life’s lottery and that the unlucky also deserve opportunities
Moral universalism
A belief that some acts are always right or always wrong
Moral relativism
A belief that a decision may be right even if it is not in keeping with one’s own ethics standards
cultural and individual
Can we be objective about ourselves?
No - People are not objective when comparing themselves to others
Moral licensing
After doing something ethical, many people then have a tendency to act unethically
Optimism bias
A belief that the outcome of an event will be more positive than the evidence warrants
Three practices that will help us avoid these traps
slow down
do not trust your first instinct
remember your life principles
Corporate social responsibility (CSR)
An organization’s obligation to contribute positively to the world around it
Ethics traps
Money
Competition
Rationalization
The fudge factor
I did it for someone else
The slippery slope
Inability to be objective about ourselves
Moral licensing
Conflicts of interest
Conformity
Following orders
Euphemisms and reframing
Lost in a crowd
Short-term perspective
Optimism bias
Blind spots
Kantian evasion or Palter
A truthful statement that is nonetheless misleading.
