Midterm #1 Flashcards
Dean’s List #1 What are the 13 sources of law?
1) Constitutions and charters
2) Statutes and ordinances
3) Treaties
4) Case Law/precedent/stare decisis
5) Executive Orders
6) Administrative Rules and Regulations
7) Contracts
8) Initiative and recall
9) referendum
10) common law
11) equity??
12) Hawaiian customs moving up
13) International law (wimpy)
What is law?
- A set of rules
- that the courts will enforce
What is our law system called?
anglo american common law
What is the oldest source of law?
common law
Where did common law come from?
william the conquerer
-after conquered england set up courts of equity and courts of law
What is the most widespread law system?
anglo american common law
What are the three levels of government?
- federal
- state
- local
How many sources of law can federal gov make?
all 13
how many sources can states and local governments make?
only 12
What are the four branches of the government?
Judicial: case law, precedence, stare decisis
executive: statutes and treaties along with legislative
legislative: other half if statutes and treaties
the people: remaining sources of laws comes from us such as contracts, referendums, initiatives and recall.
What are courts of equity?
-give remedies that are not monetary
what is not an equitable maxim?
do the right thing
Is equity law?
Equitable maxims are a set if rules and equity courts do enforce them?
Hawaiian customs as it relates to law
able to go on undeveloped land to hunt, gather, fish and worship even if it’s not your land.
describe international law
courts do not enforce the rules
What does a jury decide?
Questions of fact
What does a judge decide?
Questions of law.
what is a motion?
something that gets the judge to do what you want
how many motions are there?
seven
What source of law do the courts make?
case law, precedence, stare decisis
What is in persona jurisdiction and how do you get it?
get this by service of process.
- service of process consists of summons and complaint-
- person only has to hear it.
What types of jurisdictions are there?
- in persoma
- in rem
- summons of complaint in newspaper
- property: bank account, sail boat
- subject matter:
- limited: traffic
- general: hears all sorts
- original: hears trials
- original, general at federal level
What does the state supreme court consist if?
lawyers arguing with lawyers
What is the jurisdiction of the federal court?
- federal law, statue, treaties
- federal questions
- diversity of citizenship: citizens of different states.
what is concurrent jurisdiction?
when federal and state courts both have jurisdiction.
what is territorial jurisdiction?
geographic territory qhere wrong was committed.
What is ADR?
Alternative Dispute resolution
How many forms of ADR are there, what are they?
- negotiation
- mediation
- arbitration: binding stuck with it
What are the stages in a lawsuit?
- accident
- negotiation
- consult attorney
- informal investigation
- files complaint
- motions
- notified of lawsuit
- and more
Can you appeal questions of fact?
No jury decides. You can only appeal questions of law
What are the six remedies at law?
1) Compensatory / actual $ damages
2) consequential / special $ famages
3) punitive / exemplary $ damages
4) Nominal monetary damages
5 ) liquidated monetary damaged
6) restitution damages
What are the 8 Remedies in Equity
1) recission of a contract
2) restitution
3) specific performance of a contract
4) reformation of a contract
5) quantum meruit for a quasi contract*
6) accounting *
7) foreclosure of a mortgage contract
8) injunction
What does voir dire mean?
jury selection
What are the requirements to be a juror?
18, US citizen, fair, and impartial
What can you appeal?
A mistake of law
Who does the burden of proof rest on?
The plaintiff
What does the plaintiff have to prove at a criminal trial?
- proof beyond a reasonable doubt
- jury has to be unanimous
what is murder?
one being takes the life of another with intent.
What does plaintiff have to prove with torts?
a preponderance of evidence.
-defense has no burden
Does a verdict have force of law?
no force of law until judge issues judgement
What happens after verdict?
- motion for judgement
- motion for new trial
- motion to appeal
Does jury decide what to award?
yes, they can award:
- compensatory
- consequential
- exemplary: big number and controversial.
- nominal damages
What type of car does dean drive?
corvette coupe, sunset orange
- viagra in the license plate
- fastest street legal car in US
What are liquidated damages?
- set named number. Names in contract
- if you breach this contract, damages are $x.xx
What is restitution?
court of law orders person to give property back.
What are remedies in equity?
- usually not monetary
- jusge follows equitable maxims
What is recission?
equity remedy, contract is cancelled
What remedy is the only remedy in common between at law and at remedy?
restitution
What is quantum meruit?
quasi contract
- amount of merit you gave
- amount of merit you bestowed on cost.
what is an injunction?
Equity remedy
-court orders for you to stop soing something
What is the mtitgation/benefits rule?
before you get a remedy you have to comply with this rule
mitigation: you have to lesson the damages yourself
benefits: have to offset the wrong done to me using the benefit awarded.
What are appeals?
supreme courts can affirm, recerse and remand it
Who are we the people?
The fourth branch of government
-created the law called the constitution.
What was the first law enacted/created in the US?
the constitution
What is the oldest law followed in the us?
common law
What is a cicil right not given im the bill of rights?
- women can vote
- people over the age of 18 can vote
What is a criminal right not given in the bill of rights?
miranda rights
What is important about the miranda case?
- motion to suppress: how to deal with illegal evidence
- exclusionary rule
- fruit of the poisonous tree doctrine, if something is excluded you can’t use anything that it led to.
What are actus rea?
The big crimes:
-murder, rape, battery, assualt
What are the first four mens rea, what do they equal and whay type of awards?
1) Intent
2) Malice
3) Willful and wanton
4) Gross negligence
=malfeasance
- punitive $ damages
- compensatory $ damages
What are the last three mens rea(mental elements)
5) Negligence
6) Strict liability
=misfeasance, only compensatory $ damages
shit happens = nonfeasance = 0
what does actionable mean?
There is a law(black) against what they did and you should win
talk about amendment xiv
- privileges and immunities only go to citizens
- due process of law including illegals
- equal protections: attorney, hearing, bail.
- greatest argument for same sex marriage
what are torts?
civil, seeking compensation
can have same name as crime
who is the plaintiff in a criminal case?
government
what does malfeasance mean?
evil to do; probably are felonies
What is misfeasance
bad; to do. compensatory and consequential $damages
miseamenors
What does strict liability mean?
There is no mens rea element
- they only use it when doing ultrahazardous acts
- dynamite, gases, mine shaft, scaffolding, damming up waters
What is non feasance?
not acting, act as a good samaritan you are not liable for negligence
When do you have a duty to fease?
- if you caused the danger
- it’s your child or spouse
- hotel employee and they are a hotel guest
What is a felony?
punishable by one year or more
what is a misdemeanor?
punishable by less than a year
was is an offense?
not a crime(traffic offense)
who is subject to criminal law?
anyone over 18
under 18 considered a juvenile offense according to common law
What are some defenses?
self defense: using force to defend self
-deadly force to protect life, flea first and only when overtaken.
what is an insanity plea?
- disease or defect they can see on an xray
- essentially a slow guilty plea. Admit to the actus reas but not the mens rea
what is duress?
can’t use it as a defensw for homicide.
-you kill them or i kill you.
What is the warrant requirement?
They need a warrant unless you consent which is opening the door.
explaim the tort of negligence
1) duty of care owed
2) dity of care breaches
- by reasonable person standard
3) proximate cause direct - but for test, foreseeability
4) injury or damage
Explain tort duties as a landholder
1) trespassers, not to intentionally harm them
2) licenses
3) social invitees
- duty to warn of known concealed damages
4) business invitees - above and to inspect for and cure even hidden dangers
5) hotel guests - all of the above and even more
What is respondeat superior?
master slave rule
-servant commits tort, both master and servant are responsible
1) doctrine of frolic and detour
2) lunch hour rule
What is the worst mens rea?
intent
-become liable for actions ar age 7
What is contributory negligence?
If victims own negligence contributes to their injury, the tortveasor owes nothing
- have states have changed it to comparative negligence
- victims get a percentage
what is real property?
land and fixtures
-also called realty
what is personal property?
chattel
-also called personalty
what is a testamentary gift?
give property away by will
what is an intestate gift?
- gift but they don’t have a will
- goes by statute
What is caveat emptor?
- buyer beware
- common law
-opposite of what some states have changed it to which is implied warranty of habitability.
What is JTWROS?
joint tenancy with right if survivorship
- right of inheritance
- other person can’t sell property without your consent
What type of property arw chairs bolted to the desk?
tangible, real
What is the doctrine of severeance?
if you have real property and sever it from the land it becomes chattel
What does fee simple mean?
You own all of the rights and have absolute title.
What type of property are air and space rights?
intangible
What type of property is gold and oil?
It’s real tangible, ownership is intangible
What does intestate go by?
spouse and blood
What is a deed?
paper that proves ownership
What types of deeds are there?
-by yourself
- concurrent ownership
- each has equal undivided interest
-JTWROS:others inherit the deed when person dies
- Tenancy by the entirety
- only married couples can have it.
- both own the entire thing
- one person dies creditors can’t ho after his share
- community property
- jointly owned.
What two deeds are concurrent joint ownership?
- tenancy by the entirety and
- community property
When is a bailment contract created?
- lost
- stolen
- borrowed
- mislaid
-have to return it.
abandoned property you can keeep
What are three requirements of a gift?
- donative intent
- delivery
- acceptance
What are four ways to give?
- intervivos
- testamentary
- intestate
- gift causa mortis
What are limits on ownership?
- eminent domain
- restrictive covenants
- zoning laws
What duties does a bailee have?
duty to care for property and redeliver it
What are the levels of care?
sole benefit of bailor: duty if care low
sole benefit of bailee: dutybof care high.
professional bailees: extreme care
What are examples of intellectual intangible personal property?
1) copyrights - life plus 70 - 120 years
2) patents - 20 years
3) trade names
4) trade mark
5) service names
6) service marks
7) trade dress
8) trade secrets
What are exceptions to intellectual property rights?
- fair use
- parody
- public domain
