midterm 1 Flashcards
1
Q
acceptance (contract law)
A
comes after the offer; one person’s compliance with the terms of an offer made by another
2
Q
Additur
A
The practice of a trail judge adding damages additional to the original amount awarded by the jury
3
Q
adequate and independent state grounds
A
the standard used by SCOTUS to determine if they’ll hear a case from a state court
No jurisdiction if:
1.if the state ground is adequate to support the judgement
and
2. independent of federal law
4
Q
Adversarial system
A
Resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decided which side wins what
5
Q
Adverse Possession
A
a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, as long as certain requirements are met
6
Q
Affirmative Defense
A
Defendant introduces evidence, which may negate criminal or civil liability, even if it is proven that the defendant committed to the alleged acts.
7
Q
Age of Majority
A
The age at which an individual will be legally considered an adult
8
Q
Agreed remedies
A
An outline of the remedies that may be agreed by parties for a breach of contract
9
Q
American Rule
A
Requires both sides in a court case to pay their own legal fees, no matter who wins the case
10
Q
Answer
A
Defendant’s response to the plaintiff’s
11
Q
anticipatory breach
A
When a party demonstrates its intention to break a contract
12
Q
Binding Precedent
A
A legal rule or principle , articulated by an appellate court, that must be followed by lower courts within its jurisdiction
13
Q
burden of persuasion
A
requisite degree of belief a party must convince a jury that a particular fact is true
14
Q
burden of product
A
party’s obligation to come forward with sufficient evidence to support a particular proposition of fact
15
Q
Causation in fact
A
the actual evidence, or facts of a case
16
Q
Certified Question (certification)
A
formal request by one court to another, usually but not always in another jurisdiction, for an opinion on a question of law
17
Q
Civil Assault
A
an intentional attempt to cause harm to others as well as the physical ability to provide this harm
18
Q
civil battery
A
the intentional touching of, or application of force to, the body of another person in a harmful or offensive manner (and without consent)
19
Q
Claim preclusion
A
prohibits lawsuits involving the same cause of action and the same parties if the court has entered a final judgement on the merits.
20
Q
clear and convincing evidence
A
evidence that produces in your minds a firm belief or conviction that the allegations sought to be provided by the evidence are true
21
Q
Comity
A
courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions- whether state, federal, or international
22
Q
Competent parties (contract law)
A
Both parties have to be of age and not mentally disabled in a way that impacts their judgement
23
Q
complaint
A
The first step of the civil law suit, the plaintiff files this, and then has a certain number of days to serve the defendant
24
Q
concurrence
A
the requirement that a guilty mental state and guilty act occur in unison
25
concurrent jurisdiction
allows more than one court to have the authority to hear the same case
26
Consideration (contract law)
Both parties are giving something up
27
contingency fee
lawyer agrees to only be paid if their client wins
28
contributory negligence
failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury- may reduce the amount received from the defendant
29
counterclaim
a defendants claim against the plaintiff
30
damages
the remedy that a party requests the court award in order to try to make the injured party whole
31
default judgement
When the defendant does not answer, the court will issue this
32
Deposition
the process of giving sworn evidence
33
Dignitary Tort
intentional torts where the cause of action is being subjected to certain kinds of indignities ( treatments that cause one to loose dignity)
34
Discovery
the formal process of exchanging information between the parties about the witness and evidence they'll present at trial
35
Discretionary Reviews
the authority appellate courts have to decide which appeals they will consider from among the cases submitted to them
36
diversity jurisdiction
the parties must be citizens of different states and the amount must be over 75k
37
Duty of care
requirement that a person act toward others and the public with the watchfulness, attention, caution and prudence
38
easement
a right to cross or otherwise use someone else's land for a specified purpose
39
eggshell-skull rule
a defendant in a personal injury case will be responsible for the damage caused as-is, even if the victim had a pre-existing condition that made him or her predisposed to a serious injury
40
English rule
the party that loses in court pays the other party's legal fees
41
Equity
supersedes common law and statute law when there is a conflict btw the two- courts used their discretion to apply justice in accordance with natural law
42
Erie doctrine
a commitment to respect the diversity of state legal systems and maintain the balance between federal and state jurisdictions
43
Exclusive Jurisdiction
If one court has the power to hear a case
44
Expectation Damages
damages that can be recovered from a contract breach by the non-breaching party
45
Federal party jurisdiction
What parties can bring a case to federal courts (diversity and federal questions)
46
federal subject-matter jurisdiction
the court has authority to hear the type of case or controversy initiated in its court
47
fee simple
full and irrevocable ownership of land, and any buildings on that land
48
fixed-term tenancy
a tenancy that has a fixed term of existence, continuing to a specific ending date and terminating on that date without requiring further notice
49
forum non conveniens
a court's discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case
50
forum shopping
the practice of choosing the court or jurisdiction that has the most favorable rules or laws for the position being advocated
51
full faith and credit
state courts respect the laws and judgements of courts from other states
52
Hand test
attempts to formalize the intuitive notion that when the expected loss exceeds the cost of taking precaustions
53
Injunction
judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act
54
in personam jurisdiction
a court's power over a person (or entity) who is a party to, or involved in, a case or controversy before the court
55
inquisitorial system
judges or juries have the primary responsibility for gathering and evaluation evidence
56
in rem jurisdiction
the authority of a court over real or personal property
57
intentional tort
type of tort that can only result from an intentional act of defendant
58
interrogatories
a written question which is formally put to one party in a case by another party and which must be answered
59
interventions
the procedure under which a third party may join an ongoing lawsuit, providing the facts and law issues apply to the intervenor as much as to one of the existing contestants
60
Issue preclusion
means that a valid and final judgement binds the plaintiff, defendant, and their privies in subsequent actions on different causes of action btw them to same issues actual litigated and essential to the judgment in the first action
61
Joinder of parties
allows multiple plaintiffs to join in an action if each of their claims arises from the same transaction or occurance
62
joint-and-several liability
makes all parties in a suit responsible for damages up to the entire amount awarded
63
joint liability
the obligation of two or more partners to pay back a debt or be responsible for satisfying a liability
64
judgement as a matter of law (JMOL)
asks the court to enter a judgement based on the conclusion that no reasonable jury could reach a different conclusion
65
judgement notwithstanding the verdict (JNOV)
a judgement by the trial judge after a jury has issued a verdict, setting aside the jury's verdict and entering a judgement in favor of the losing party without a new trial
66
judgement on the pleadings
can be filed on the basis that no answer has been filed, or that the pleadings disclose that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law
67
leasehold
the holding of property by lease
68
legal purpose (contract law)
the requirement that the object of, or reason for, the contract must be legal
69
license (property law)
permission to enter or use land or property owned by another in a manner that would otherwise constitute a trespass
70
life estate
created by a deed that gives the property to the person "for life" and identifies what should happen to it after that person dies
71
long-arm statutes
a statute that allows for a court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with that state
72
mandatory review
by which any individual or entity can request any Federal agency to review classified information for declassifications, regardless of its age or origin, subject to certain limitations
73
material breach
breaks an agreement at its core or root
74
meeting of the minds
mutual assent by all parties to the formation of a contract
75
minimum contracts
the shortest contract term available for a given contract
76
minor breach
when a party to a contract preforms most of the terms of that contract
77
modified comparative negligence
disallows plaintiffs from recovering monetary damages of they are assigned at fault beyond a certain percentage
78
national supremacy
(Supremacy Clause)- establishes that the federal constitution, and federal law take precedence over state laws, and state constitutions
79
necessary and indispensable parties (joinder)
party whose presence and participation in court are necessary for a lawsuit to proceed
80
negative defense
when a defendant denies the plaintiff's allegations without providing and additional facts to support their denial
81
negligence
the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances
82
non-possessory interest
the right to use or restrict the use of another person's real property or land, or it may occur because of a court order
83
nuisance
condition, activity, or situation (such as loud noise or four odor) that interferes with the use or enjoyment of property
84
obiter dictum
a judge's incidental expression of opinion, not essential to the decision and not establishing precedent
85
offer (contract law)
a promise of money or an item of value from a promisor in exchange for performance by a promisee
86
one final judgement rule
the legal principle that appellate courts will only hear appeals from the "final" judgement in a case
87
parol evidence rule
any agreement that is not contained within the written contract is not valid in court unless there is evidence of fraud, duress, or a mutual mistake
88
penalty doctrine
rule of public policy that allows the court to intervine
89
periodic tenancy
type of leasehold estate- involves a written lease, but with no specific end end- tenancy is on a week-to-week or month-to-month basis
90
personal jurisdiction
the power that a court has to make a decision regarding the party being sued in a case
91
personal property
moveable property, belongings exclusive of land and buildings
92
persuasive precedent
legal decisions that a court can consider when making a ruling, but it is not required to follow it
93
pleadings
a formal statement of the cause of an action or defense
94
possessory interest
the use of real property owned by a government agency
95
preponderance of the evidence
to prove that something is more likely than not
96
prima facie case
a cause or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party
97
privity of contract
a common law doctrine which provides that you cannot either enforce the benefit or be liable for any obligation under a contract to which you are not a party
98
promissory estoppel
the doctrine that a party may recover on the basis of a promise made when the party's reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise
99
property tort
trespassing, trespass to chattels (handling items owned by another person without their permission, and conversion (taking possession of someone else's property with the intent of not returning it
100
proximate causation
the actions of the person who owes you a duty must be sufficiently related to that injury`
101
punitive damages
damages exceeding simple compensation and awarded to punish the defendant
102
pure comparative negligence
the state allows the plaintiff to claim damages for the 1% they are not at fault for, even when they are at 99% fault
103
ratio decidendi
rationale for the decision
104
real properties
parcel of land and structures that are permanently attached to the land
105
reliance damages
what it would take to restore the injured party to the economic position occupied before the party acted in reasonable reliance on the promise
106
remittitur
give a trail court the ability, with the plaintiff's consent, to correct an inequitable damage award or verdict without having to order a new trial
107
res ispa loquitor
part of a personal injury case- being able to show that the other party caused the injury at hand
108
restitution damages
money damages that are awarded to an innocent party to compensate for the benefit that party gave
109
service of process
method by which documents are delivered to other parties (Seth Rogan in Pineapple Express)
110
several judgement rule
in action against several defendants, the court may render judgement against one or more of them, leaving the action to proceed against the others
111
several liability
any type of liability system that courts use to allocate responsibility for damages in tort cases with multiple negligent parties
112
special appearance
an appearance by a party in court for the sole purpose of challenging the court's assertion of personal jurisdiction over the party
113
specific performance
contractual rememdy in which the court orders a party to actually perform its promise as closely as possible, because monetary damages are somehow inadequate to fix the harm
114
standing
the right of a party to challenge the conduct of another party in court
115
stare decisis
holds that courts and judges should honor precedent
116
strict liability (civil law)
holds a defendant responsible for their actions regardless of their intent at the time of the action
117
subject-matter jurisdiction
the authority or power that each court has over certain types of legal disagreements (disputes)
118
summary judgement
decision made based on statements and evidence without going to trial
119
tenancy at will
property tenure that can be terminated at any time by either the tenant or the owner/landlord
120
three-judge appellate-court panel
literally what it sounds like- in appeal court, three judges work together, can include a senior circuit or district judge, a district judge from a district court within the particular circuit, or a visiting circuit or district judge from another circuit
121
three-judge district-court panel
shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body
122
tort
an act or omission that causes legally cognizable harm to persons or property
123
trial court
any courts that hear a case first, referred to as courts of original jurisdiction
124
venue
the location where the case is decided
125
verdict
a decision on a case, an opinion or judgement
126
common law vs civil law
civil law takes the form of legal codes; common law comes from case law as a result of judicial decisions
127
criminal versus civil law
civil cases are disputes between people of organizations, criminal cases allege a violation of criminal law
128
elements of a contract
offer, acceptance, consideration, meeting of the minds, competency and capability, legality
129
elements of a negligence claim
duty, breach of duty, cause (in fact and proximate) and harm
130
findings of fact vs conclusions of law
findings of fact- the decision, opinion or observation arrived by a judge or jury on the issues related to the fact- harder to overturn
Conclusions of law-a decision made by a judge regarding a question of law
131
law vs equity
Party is not entitled to a trial by jury of in equity- only decided by a judge, both in federal and state court
Jury decides legal claims
132
meanings of "civil law"
the law that pertains to persons, things, and relationships that develop around them- excluding criminal, commercial, labor law, and more that google wont tell me
133
meanings of "common law"
body of unwritten laws based on legal precedents established by the courts
134
organization of federal courts
district courts (trial courts) -> circuit courts (first level of appeal)-> SCOTUS
135
organization of state courts
Trial courts (sometimes called circuit or district courts)-> intermediate court of appeals (sometimes)-> State Supreme court
136
public vs private law
public laws affect society as a whole, private laws affect an individual, family, or small group
137
published vs unpublished opinions
If it is published, the decision can be relied upon and cited by later courts as precedence
138
sources of law in the common law system
institutionalized opinions and interpretations from judicial authorities and public juries
139
stages of a civil case
files complaint-> serve defendant-> defendant answers-> discovery-> pretrial-> trial-> verdict and damages -> post-trial motions-> final order-> enforcement
140
types of authority in common law system
judicial authorities and public juries
141
types of breaches in a contract
anticipatory vs actual
minor vs material
142
types of torts
intentional torts, negligence, strict liability torts, economic (fraud), nuisances
143
types of jurisdiction
appellate court, original jurisdiction, diversity jurisdiction, subject-matter jurisdiction, exclusive jurisdiction, general jurisdiction
144
types of judgements in a civil case
default judgement, judgement on the pleading, summary judgement, judgement as a matter of law, verdict, judgement not withstanding the verdict
