Midterm Chapters 1-6

Question 0

4 Authoritative sources (types of law)

Answer 0

Statutes
Cases
State and federal constitutions
Regulations

Question 1

Law is…

Answer 1

A process of legal reasoning/argument for decision-making about particular controversies.

Question 2

What is a statute?

Answer 2

A statute is a particular law, or body of laws enacted by a state or federal legislature in conformity with the procedures required by its constitution, state or federal. Such procedures include the usual requirements of majority vote and approval by the governor or President. Examples: state penal codes, federal penal codes, etc.

Question 3

What is a case?

Answer 3

Any judicial or administrative proceeding in which facts of a controversy are presented in technical legal form for decision-making. The object of such a proceeding is to enforce rights and remedy wrongs. A plaintiff is the party (individual or group) who initiates a case. A defendant is the party (individual or group) who responds.

Question 4

What is a constitution?

Answer 4

A constitution is a fundamental political and legal character for the people of a particular state that is directly or indirectly approved by the people (e.g., the Constitution of California) or for the nation (the Federal Constitution). Sometimes called the fundamental law, a constitution defines the character of government by specifying the nature of extent of sovereign power; by distributing this sovereign power (state or federal); and by prescribing the basic principles for the exercise and checking of this power by the three separated branches of government: the executive, the legislative, and the judiciary. A democratic constitution also typically enumerates the basic rights of the people (a Bill of Rights).

Question 5

What is a regulation?

Answer 5

A regulation is a legal rule authorized by statute and issued by an executive agency for the governance of matters within the authority of the agency.

Question 6

What is a brief of a case?

Answer 6

An organized written summary of the important elements of a written opinion.

Question 7

What is the case method?

Answer 7

It is a method designed to teach legal argument for decision-making (including the substantive and procedural law) by analyzing sequences of appellate opinions from state and federal appellate courts.

Question 8

What is the common law?

Answer 8

Judge made law. Earlier cases became precedent for deciding later cases.
Louisiana is not a common law state because they follow French law.

Question 9

What is a trial court?

Answer 9

A trial court, state or federal, consists of a judge with or without a jury and performs four basic functions in the administration of legal justice within our Constitutional system of divided power (federal and state) separation of powers (judiciary, executive, and legislature), but it DOES NOT create precedents.
Functions: (1) fact finding, (2) law finding, (3) law application, (4) procedure.
Trial courts are either courts of general jurisdiction, which have power to consider and decide any authorized civil or criminal cases brought before it by private lawyers and public prosecutors, or courts of limited jurisdiction, which have power to consider and decide only limited types of cases (e.g., Traffic Court). Trial courts are either part of the state court system that exists in each state, or part of the national, federal court system. The federal court of general jurisdiction is called the United States District Court. Each state has one or more federal district courts.

Question 10

What is an appellate court?

Answer 10

An appellate court, state or federal, hears appeals from the trial courts within its jurisdiction. They accept the facts as determined (found) by the trial court and therefore do not hear testimony or other evidence. Appellate courts assess and decide claims that the trail court committed legal error (an appeal). In the federal court system, the highest court is the US Supreme Court. In addition, there is an intermediate appellate court, the US Court of Appeals, which is organized on a regional basis into 13 circuits.

Question 11

What is res judicata?

Answer 11

Applies to claims
The doctrine of res judicata (a “thing which has been adjudicated”) means that once a particular claim is conclusively decided by a court (including appeals) with jurisdiction over the claim and the parties, the court’s judgment and the factual and legal issues underlying it may not be relitigated by the parties.
Bars endless relitigation.
Elements (4)

Question 12

What is stare decisis?

Answer 12

The common law doctrine of stare decisis (“stand by the decision”) means that the decision of a court in one case provides a precedent (i.e., a standard) for the decision of future cases with similar facts and issues in the same or inferior courts within a particular jurisdiction.
Sauer & Greaves

Question 13

Binding Precedent

Answer 13

A “binding precedent” means that a decision of a court in a prior case should control the decision in future cases with similar facts and issues for both the deciding court and for all inferior courts within the same jurisdiction.
Civil system does not have precedent.

Question 14

Persuasive Precedent

Answer 14

A “persuasive precedent” means that a decision of the court in a prior case may be accepted or rejected or not considered by a court in a new case in a different state, even though the facts and issues in the new case are similar.
Civil system does not have precedent.

Question 15

What is a rule of law?

Answer 15

A rule of law is (a) an authoritative legal standard (b) of general application (c) requiring action or forbearance (d) used by courts and administrative tribunals (e) as a norm (f) in deciding the legal significance (g) of the facts presented in particular cases. Is composed of elements!

Question 16

What is a principle of law?

Answer 16

A principle of law has the characteristics of a rule, and in addition, a principle: (1) has a more fundamental status in law than a rule; (2) has a broader or more inclusive scope or reach than a rule; (3) may be used as a basis for creating rules; (4) is sometimes used by a judge to select which one of two or more arguably applicable rules should be applied in a particular case or to decide a case in the absence of a relevant rule. Is NOT composed of elements.

Question 17

What is a legal policy?

Answer 17

A policy is the interest(s) or end(s) expressed or served by a rule or principle.The term “doctrine” is used as a shorthand for a particular set of rules, principles and policies.

Question 18

What is extricating key facts?

Answer 18

Extricating key facts is a process where you select from all the mass of facts presented in a written opinion, those particular facts that have the most legal significance. Key facts raise a legal issue and require application of a relevant rule (or principle) to resolve the issue.

Question 19

What is issue spotting?

Answer 19

A legal issue is simply a question that you pose about key facts concerning their legal significance. The framing of an issue in a one-sentence question incorporates the key fact (or some of them) and points to an applicable rule of law. Issue spotting is a bridge connecting the key facts with the rule to be applied.

Question 20

3 elements of an issue statement

Answer 20

key facts
element
cause of action (rule)

Question 21

A case brief includes these: (8)

Answer 21

Title 
Citation
Facts
Procedural History
Issue Statement
Holding
Judgment
Reasoning

Question 22

Dicta is…

Answer 22

Discussion in an opinion that is not necessary to the holding.

Question 23

What is a petitioner?

Answer 23

A person who initiates a petition, which is a formal, written application to a court requesting judicial action on a specific matter.

Question 24

Writ of Certiorari

Answer 24

An order from a higher court (e.g., USSC) to an inferior court to produce the record of a trial for review by the higher court. USSC can choose which writs to grant. They can deny writs. A party can request writs multiple times.

Question 25

Judgement

Answer 25

A final determination by a court of the issues presented to it in a proceeding.

Question 26

Elements of res judicata (4)

Answer 26

Existence of a previous proceeding
Same parties
Same claim
Final judgment on the merits (factual and legal theories/cause of action)

Question 27

Collateral estoppel

Answer 27

Applies to issues
Bars relitigation of a particular issue or determinative fact.
Requirements: (1) previous proceeding; (2) same parties; (3) same issue; (4) final decision necessary to the court’s judgment.

Question 28

Value/weighting of precedents in opinions

Answer 28

Certain courts have added weight
Citing the author of an opinion - prestigious judges
Unanimous decisions
“Frequently cited” cases/dissents mention by justices (benchmark cases)
Precedent is “sound principle” or not

Question 29

How is common law different from statutory law?

Answer 29

Common law:
Individuals are making it.
Has accumulated over centuries.
Bodies of law by judges and courts.
No congressional or legislative input (can be codified, is sometimes influenced by public policy)

Question 30

Changing precedent…

Answer 30

Legislature
Changes in policy
Evolving 
Distinguishing present case from other cases
Previous cases not speaking ot the issue
Public policy
Examples: Woods v. Lancet, DOMA, etc.

Question 31

Prima facie

Answer 31

The plaintiff must introduce sufficient evidence at trail to establish the plaintiff’s cause-of-action if it is assumed such evidence is true and credible. Trial judge will determine if it has been established.

Question 32

Directed Verdict

Answer 32

When the trial judge directs a verdict for one party against the other party. A motion for a directed verdict should be granted if all the evidence (the facts and inferences) point so strongly and overwhelmingly in favor of one party the Court [judge] believes that reasonable jurors could not arrive at a contrary verdict.