Midterm Flashcards
Origins of American Law
1250- Henry de Bracton: on the laws and customs of england)
Shire reeves
Origin of the word sheriff- They made judgment calls about the law
Sources of contemporary law
US Constitution( Madison)( Federalism, checks and balances) Bill of Rights ( John Locke) State constitutions Statutes passed by legislatures common law administrative law (federal agencies)
Steps of analyzing a case
Style( identify plaintiff and defendant Citation( where to find it) Legal issue Holding Rational Majority opinion Dissenting opinion Concurring opinion Dicta Reverse/remand/affirm
Stare Decisis
let the decision stand
Common law
president, which leads to stare decisis
path of a bill
Introduced
debate and vote
conference committee irons out differences
the president can sign or veto. has 10 days
pocket veto
an indirect veto of a legislative bill by the president or a governor by retaining the bill unsigned until it is too late for it to be dealt with during the legislative session.
3 types of statutory interpretation
plain meaning
legislative history
public policy
administrative law
- federal agencies are given the authority to make rulings that affect out lives
- Subpoena power
Federalism-
Limitation of federal power; checks and balances.
Supremacy clause
states that the constitutional and federal statutes shall be the law of the land ( Over state)
Incorporation clause
Bill of rights applied to the states through the 14th amendment
1st. amendment
speech
5th amendment
due process
takings clause
ig government takes your land must be for a public reason and they must compensate you
Powers granted to congress in the constitution( Article 1, section 8)
regulate interstate commerce;substantial effect rule ( even if it didn’t cross state lines, if it had a big impact outside the state then it still qualifies
14th amendment
- equal protection clause
Minimal scrutiny
intermediate scrutiny
strict scrutiny
minimal scrutiny
economic or social
intermediate scrutiny
gender issues
strict scrutiny
racial or ethnicity- fundamental rights
US supreme court
9 justices appointed by the president
how can you request your case to be heard by the supreme court
writ of certiorati
Current chief Justice
John Glover Roberts Jr
First woman on the supreme court
Sandra day OConner
First African American justice
Thurgood Marshall
Complaint
brought by the plaintiff to explain lawsuit
Summons
formal serving of defendant with lawsuit
Answer (defendant)
20 or 30 days from service; renders the pleadings “joined”.Admit or deny
Discovery
interrogatories, Deposition, physical exam, request for production of documents and things
Interrogatories
written interrogations under oath
Deposition
oral testimony of a witness
Physical exam
to see if allegations of injury are true
Pretrial motions
( motion for summary judgment)
voir dire
process of picking a juror
remand
sending a case back to a lower court
reverse
reversing to a lower courts ruling
Right to jury trial
everyone can have jury upon request with the exception of small claims court
Burden of proof for civil
plaintiff has the burden of proving his case by a preponderance of the evidence.
Burden of proof for criminal
the government must prove guilt beyond reasonable doubt
Arbitration
you waive your right to a lawyer and agree to have the dispute resolved by a pre decided arbitrator
mediation
non binding, tries to resolve ( think marriage counseling)
Felony vs misdemeanor
difference is in possible jail time
types of guilt that must be proven in criminal law
actus reus/ mens reus
actus reus
the guilt of having committed the crime, the literal action, regardless of intent
mens rea
defendant intended to do harm with the action they were commenting; knew their behavior was criminal
Defenses for criminal cases (3)
insanity
coercion
entrapment ( law enforcement inciting someone to commit a crime while under cover with the intent to arrest them)
Larceny: definition and is it a crime or tort
crime. trespassory taking of personal property with the intent to steal
Fraud
crime. deception of a person with the intent of obtaining money or property
Types of fraud
wire fraud
mail fraud
insurance fraud
medicare fraud
Arson
crime. malicious use of fire to damage or destroy real estate or property
embezzlement
crime. fraudulent conversion of property already in the defendants possession
Rico
using two or more racketeering acts to accomplish any of the following goals : 1.investing or acquiring legitimate businesses with criminal money
2. maintaining or acquiring business with criminal activity. 3., operating business through criminal activity
