midterm Flashcards
1
Q
Common Law
A
- becomes law through recognition in the courts
- “judge made law” fill in the gaps
- there are two key components
2
Q
precedent
A
- 1 key component of common law
- court decides something for the first time
- can be overruled
- trial court
3
Q
stare decisis
A
- 1 key component of common law
- “let the decision stand”
- refers to the precedents if there was a previous case with the same issue
4
Q
Statutory law
A
enacted by legislature
5
Q
criminal law
A
conduct which is offensive to the people or society as a whole
-government on behalf of the people bring forth legal action
6
Q
civil law
A
disputes concerning the right and duties that exist between private persons and/or citizens and government
-usually suing for money
7
Q
equity law
A
- one party goes to court seeking judicial relief
- make someone do something or prevent someone from doing something by court order
- usually “under peril” time matters
- NEVER seeking money
8
Q
private law
A
relationships between persons
-ex; who can get married
9
Q
public law
A
government gets involved for the good of the people or society
-statutes= doesn’t always affect everyone directly
10
Q
jurisdiction
A
the right, authority and power of the court to hear and decide a case
- needs to go to the correct court
- 2 types of jurisdiction
11
Q
original jurisdiction
A
hears evidence, determine facts, applies the law to the facts (judge does all 3)
- power of the court to hear the case for the first time
- bench trial= trial without a jury
12
Q
appellate jurisdiction
A
reviews cases that have already been tried to make sure there are NO mistakes in law
13
Q
where to find jurisdiction
A
- MOST courts have original OR appellate jurisdiction
- supreme court had BOTH
- jurisdiction is found in the constitution or statutes
14
Q
trial in a criminal case
A
state v.
Crime against= people v. defendant
U.S. v.
15
Q
trial in a civil case
A
plaintiff v. defendant
bringing forth the lawsuit v. person being sued
16
Q
trail in a equity case
A
petitioner v. respondent
asking for court order v. person you want to do something/prevent
-could also be plaintiff v. defendant
17
Q
appeals
A
-1 appeal per case (not per party)
-civil case either party could appeal
-Appellant v. Appellee
the one appealing v.
18
Q
petition
A
after appeal is used and a party still believes there is a mistake in law
- petitioner v. respondent
- supreme court gets most cases by petition
19
Q
politics
A
acquisition, retention, and exercise of power for the purpose of collective action
-determines “who gets what, when , how”
20
Q
Law
A
a system by which society makes choices that allocate its scarce resources and organize relations among individuals and institutions in order to achieve predictability in business and personal affairs
21
Q
dispute resolution (American courts exercise power within gov)
A
generally refers to one of several different processes used to resolve disputes between parties, including negotiation, mediation, arbitration, collaborative law, and litigation.
22
Q
allocation of benefits and burdens (American courts exercise power within gov)
A
winner=benefits loser=burden
23
Q
protecting individual rights and liberties (American courts exercise power within gov)
A
- rights of criminal defendants
- religious freedom
- freedom of speech
24
Q
provide order (American courts exercise power within gov)
A
creating common law
25
norm enforcement (American courts help maintain status quo and change)
a principle binding upon members of a group such as society that serves to guide, control, and regulate proper and acceptable behavior
26
where are norms found
sources of law: constitution, statutes, court decisions
- also found in community acceptable behavior
- trial courts
27
policy making (American courts help maintain status quo and change)
-appellate courts
28
legal realism (American courts help maintain status quo and change)
A perspective that legal rules are to benefit the larger society and public policy based on judicial decisions
29
classical view (American courts help maintain status quo and change)
a court decision was the predictable, almost mechanical, result of a judge's application of an unambiguous rule of law, contained in a statute, constitution, prior court decision, to the facts of a particular case
-accepted view for trial court judges
30
neoinstitutionalist view
appellate courts make public policy and that judges policy preferences can and do affect outcomes
-court decision also on case facts, legal principles, court rules and of judges view about how courts should function
31
Dual Court System
The U.S. court system is divided into two administratively separate systems, the federal and the state, each of which is independent of the executive and legislative branches of government.
- states had their own court system first 1776
- national and state
32
Federal question jurisdiction
is the subject-matter jurisdiction of United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.
33
Federal party jurisdiction
refers to a court's power to make a formal judgment against a party who would otherwise not be subject to the jurisdiction of the federal courts, because the claim arose from a common nucleus of operative fact.
-never in state court
34
Diversity jurisdiction
is a form of subject-matter jurisdiction in civil procedure in which a United States district court in the federal judiciary has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens.
- $75,000 min
- could be in state or federal
35
how do you originally become a lawyer
through apprenticeship
- pay the lawyer to teach you
- go to court with them, research, and writing
36
law school
- started during the last third of the 1800s
- in 4 states you can serve apprenticeship over law school (ex: California)
- 3 states allow combination of both
37
casebook method
- standard method of teaching law
- started at Harvard in 1870s
- rea appellate court opinions and their decisions and find out the reasoning behind law
- brief each case you read
- determine the legal question, how it was decided, and the legal reasoning
38
Socratic method
professor asks hypothetical question and the legal reasoning
39
how many accredited law schools
200
40
how many non accredited law schools
50 or 60
41
American Bar Association
is the largest organization of American lawyers. is authoritative in formulating guidelines for the practice of law, giving direction to legislation, lobbying for the law profession, and evaluating federal judges.
42
Association of American Law Schools
organization of law schools
- looks at ratio of students to teachers
- practical experience
- books in the library
43
2 steps too becoming a lawyer
1. passing the bar exam
| 2. good moral character
44
state bar exam
- nationally 2/3 will pass
- 2/3 of the states are considered integrated bar association states (all the lawyers in that state have to belong to the state bar association)
- 1/3 voluntary state (lawyers do not have to join state bar association ex.Maryland)
45
who administers the state bar exam in integrated states
state bar association
46
who administers the state bar exam in voluntary states
a component of the government administrators
| -state board of law examiners
47
Bar exam
- 2 day event
- essay first day (test knowledge of state law and legal ethics) (10 questions, 5 hours and 40 min)
- if multi state bar exam = knowledge in general 200 mc in 6 hours
48
Good moral character
- originally could not have been convicted of a felony
- each state determines the requirements
- you should submit references
- states highest court admits someone to practice law (in MD = Maryland Court of Appeals)
49
Advances made by women and minorities becoming lawyers
- discrimination against women in law school ended in the masses in the 1970s
- half of the law school students today and the new lawyers this year are women
- Thurgood Marshall got denied from Maryland school of Law in 19030s
- UMD school of Law, African Americans make up about 25% of population
50
Where lawyers work
- over 1 million lawyers
- more over east and west coast
- 1/4 of all lawyers in California or New York
- 3/4 of lawyers are in private practice
- other 25% is working the government and working in business corporations for day to day legal matters
51
difference between small and larger practices
- small= generalist, knowledge of most areas
| - large=specialist= one or two specific areas
52
Access to lawyers
- advertising
| - 1977 rule that states cannot prohibit from advertising, violation of 1st amendment
53
payment for lawyer
fees
- most common is per hour (factors in experience, type of law, geographic area)
- sometimes charge lump sum or flat fee
- contingency fee= in certain types of civil cases, the plaintiff lawyer will take the chance on this and say if we don't win, you don't pay for legal service, if you win you get 33%-40% of what is recovered.
54
how does the supreme court get its cases
- 8,000-9,000 appellate cases
- appeal
- petition (majority)
- certification
55
rule of 4
4 justices must accept the case
56
writ of certiorari
court order, send to the last court the record of the case. must be sent up to the supreme court
- 4% historically accepted
- 1% currently accepted
57
certification
- least likely
- if a lower court seeks guidance it can request certification of the law
- the lower court ask " what is the law"
- the case should be requested to be sent up
58
article 1 legislative courts term
- fixed term
- law making power
- can reduce salary
59
article 3 courts
- office on good behavior
- can not reduce salary
- hybrid court (practice like article 1)
- U.S> court of international trade
60
administration of federal courts
- chief justice of supreme court is responsible for administrating the federal judiciary
- gets paid more for the extra duties
- policy making- judicial conference of U.S.= discuss matters relating to federal judiciary budget
61
state courts
- 3 or 4 tier system
- most 4= 2 trial, 2 appellate
- Maryland= 4 tier
62
Maryland court system lowest to highest
- 12 Maryland district courts
- 8 Maryland circuit courts (Juvenile, family, & orphans)
- Maryland court of special appeals (cases by appeal)
- Maryland court of appeals (cases by petition)
63
Maryland District courts
- limited jurisdiction
- minor trial courts
- ONLY original jurisdiction
- landlord/tenant cases
- motor vehicle violations
- criminal cases: max penalty less than 3 years in prison, less than $2,500 fine (if exceeds is concurrent jurisdiction with MD circuit court)
- civil cases: all civil cases below $5,000 (from $5,000- $30,000 concurrent jurisdiction with MD circuit court)
- prosecutor can choose
- appeal from district goes to circuit court
- appeal result in trial de novo
- 12 district courts
- ALWAYS bench trails
- min for a jury trail is $15,000
- chief justice responsible for overseeing
64
trial de novo
new trial
65
Maryland Circuit court
- state trail courts of general jurisdiction
- major trial courts
- appellate court jurisdiction
- original jurisdiction
- criminal case: max penalty is more than 3 years imprisonment of $2,500 fine or more
- civil cases: $5,000 and up
- equity: ALL (except protective orders could be in district or circuit)
- 8 courts (Baltimore makes up one, 23 county's make up other 7)
66
Specialized courts in MD circuit court
1. juvenile courts
- juvenile masters= judge
- not open to the public
- 17=max age
- if appealed goes to circuit court judge
2. family courts
- in 5 largest populations
- divorce/ child support
3. orphans court
- when Marylanders die and have a will/inheritance
- if no will than follows state law
67
trials are presided over with 1 judge, with the exception of the Three Judge District Court on 4 areas:
1. reapportionment
2. federal election campaign act
3. certain civil rights cases
4. certain anti trust cases
- there only needs to be 1 US district court judge, 2nd has to be US court of appeals judge, 3rd can be a second one of wither 2 ( nearly always 2 us district court judges)
68
advantage of US 3 judge district court
you appeal directly to the supreme court and they have to take it because its an appeal
69
US district courts
- only have original jurisdiction
- congress determines original jurisdiction by statute
- 94 US district court
- Maryland has 1 US district court- US Court for the District of Maryland
- can be bench or jury trials
70
US magistrate judge
- appointed by US district court judges
- there so assist and reduce coarse load of district court judges
- handle misdemeanor case
71
bankruptcy courts
- included in US district courts
- administrative matter so they have certain judges
- they usually aren't decided by US district court judges
72
US court of appeals
-12 courts that have broad, wide open, general appellate jurisdiction
-11 have numbers, one have a name
-at least 3 states per numbered circuit
-50 states make up the 11 that have numbers
-12th one is called the US court of Appeals for the District of Columbia Circuit
-Maryland is located in 4th with VA. NC, SC, WV
-circuit sits in Richmond VA
-cases are decided with 3 judge panels
1st circuit has 6 judges
9th circuit has 28 judges
4th circuit has 15 judges
-judges can sit en banc
-majority decision
-40% of cases are from independent regulatory agencies
73
US supreme court
- created in article 3
- original and appellate jurisdiction
- appellate= broad and general
- original= limited and set forth in article 3 and 11 amendment
- state v. state
- 7-11 cases per year
74
en banc
all of the judges in circuit take part in deciding case
75
special master
- usually retired federal district court judge
- in a case of original jurisdiction will gather information from each state and make a recommendation to the supreme court justices as to how the case should be resolved.
76
how many courts in US courts in each court
1 US supreme court
12 US court of appeals
94 district courts
77
legal insurance
pay premiums periodically to law firm
- when services needed could be paid in full depending on plan
- not likely
78
indigent criminal defendant
below poverty line
| -6th amendment
79
capital offense
punishable by death
| -cant takes someone's life with out giving them a lawyer because they are indigent
80
what does government do to provide a lawyer
1. public defender = works for gov (most common but untrusted)
2. court appointed attorneys= lawyer in private practice. case by case will take a case paid hourly
3. contact out= enter a contract where the gov will pay money to get indigent legal defense (least common)
81
poor people in civil cases
- no right to attorney in civil cases, only criminal
- can get assistance through Legal Aid
- 1974 legal services corporation=congress provide money/local/state accepts the money for legal aid
- law schools will provide legal aid (3rd year students)
- pro bono publico (for the public good)= lawyers donate their legal service free of charge
82
legal aid
someone else pays for the service on your behalf
- charity
- national gov. (most common)
- bar association
83
middle class
- no right to lawyer
- legal clinics= private practice firms geared towards middle class (high volume, high efficiency) (a lot of clients)
- advertise to get clients
- efficiency= use paralegals= frees up lawyer
- legal clinics specialize
84
lawyer/client relationship
-lawyer to serve client
-lawyer presumed to handle any legal matter
-attorney/ client privilege
= what you tell your lawyer about your PAST criminal activity is protected (does not include on going or future crimes)
-client controls the privilege
-lawyers have malpractice insurance incase they mess up
85
client protection fund of the bar of Maryland
when a lawyer harms the client, use to reimburse client
86
selection process for federal judges
- president nominates, senate confirms by majority vote
- one acceptation= Recess appointment=does not require senate confirmation but expires when house of representatives term ends
87
article 1
legislative courts, fixed term
88
article 3
hold office in good behavior, in essence of life terms
89
US District court judges
- nominated by president, confirmed by senate
- usually nominates people of their own political party
- must be a resident of the district you work in
- may have senatorial courtesy=ONLY APPLIES TO DISRTICT COURT
90
US Court of appeals judges
you have to be a resident of any of the states that are in your specific circuit
-informally you will always have at least one judge from each state that makes up the circuit
91
political philosophy
- key factory
| - necessarily political party= ideological compatibility
92
US supreme court judges
- they can come from anywhere in the country
- most judges are from higher economic social backgrounds
- presidents and senators both realize the major importance that Supreme court judges
- will sometimes nominate former court of appeals judges because they know their political philosophy
- senate confirmation takes months
93
5 methods to choosing State Court Judges
1. partisan election= candidates party is not shown on election ballot
2. nonpartisan election= candidate party is on the election ballot
3. gubernatorial appointment= governor nominates and state senate confirms appoints to judgeship
4. legislative appointment= state legislature chooses or appoints who the state court judge will be
5. Missouri plan= attempts to take the best features and out them together
94
serving as a judge and background characteristics
- typically come fro higher than average economic social background
- more women and members of minorities are becoming judges
- being involved in politics can help you get a judgeship
- career experience=most judges at some point were lawyers in private practice, most have also been involved in the government as a prosecutor or something
