Module 1 Flashcards
1
Q
Definition of Law
A
A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong. (Blackstone)
2
Q
Functions of Law
A
To maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.
3
Q
Legal Sanctions
A
Means by which the law enforces the decisions of the courts
4
Q
Law and Morals
A
Different but overlapping; law provides sanctions, while morals do not.
5
Q
Law and Justice
A
Are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.
6
Q
Right
A
Legal capacity to require another person to perform or refrain from performing an act.
7
Q
Duty
A
Legal obligation requiring a person to perform or refrain from performing an act.
8
Q
Substantive Law
A
Law creating rights and duties
9
Q
Procedural Law
A
Rules for enforcing substantive law
10
Q
Public Law
A
substantive law dealing with the relationship between government and individuals
11
Q
Private Law
A
substantive law governing the relationships among individuals and legal entities
12
Q
Civil Law
A
law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity
13
Q
Criminal Law
A
law establishing duties which, if violated, constitute a wrong against the entire community
14
Q
Prosecute
A
To bring a criminal proceeding
15
Q
Constitutional Law
A
Fundamental law of a government establishing its powers and limitations
16
Q
Judicial Review
A
the authority of the courts to determine the constitutionality of legislative and executive acts
17
Q
Judicial Law - Common Law System
A
uses a body of law developed by the courts under an adversary system in which opposing parties initiate and present their cases
18
Q
Judicial Law - Civil Law System
A
depend on comprehensive legislative enactments (called codes) and an inquisitorial system in which the judiciary initiates litigation, investigates pertinent facts, and presents evidence
19
Q
Judicial Law - Common Law
A
the body of law that serves as precedent for determining later controversies; basis for the principle of stare decisis
20
Q
Judicial Law - Equity
A
systembased on principles distinct from common law and providing different remedies
21
Q
Judicial Law - Restatements of Law
A
an orderly restatement of the general common law of the United States, including law developed by judicial decision and law that has grown from judicial application of statutes; written by lawyers, judges and law professors
22
Q
Stare Decisis
A
Principle that courts should apply rules decided in prior cases in deciding substantially similar cases.
23
Q
Tort
A
Private or civil wrong or injury, other than breach of contract, for which a court will provide a remedy in the form of an action for damages.
three elements of every tort action are the existence of legal duty from defendant to plaintiff, breach of that duty, and damage as proximate result.
24
Q
Decree
A
Decision of a court of equity
25
Specific Performance
Decree ordering a party to perform a contractual duty
26
Injunction
Decree ordering a party to do or refrain from doing a specified act
27
Reformation
Equitable remedy rewriting a contract to conform with the original intent of the contracting parties
28
Rescission
An equitable remedy invalidating a contract
29
Legislative Law
Statutes adopted by legislative bodies; includes treaties and executive orders
30
Administrative Law
Rules, regulations, orders, and decisions made by administrative agencies
31
Order of Legal Opinions
Facts; Issues of law or fact; Legal principles involved; Application of legal principles; Decision
32
District Courts
Federal; trial courts of general jurisdiction that can hear and decide most legal controversies in the federal system.
33
Courts of Appeals
Federal; hear appeals from district courts and review orders of certain administrative agencies
34
The Supreme Court
Federal; nation's highest court, whose principal function is to review decisions of the Federal Courts of Appeals and the highest State courts
35
Special Courts
Federal; have jurisdiction over cases in a particular area of federal law.
Includes the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the U.S. Court of Appeals for the Federal Circuit
36
Inferior Trial Courts
State; hear minor criminal cases, such as traffic offenses, and civil cases involving small amounts of money; conduct preliminary hearings in more serious criminal cases
37
Trial Courts
State; have general jurisdiction over civil and criminal cases
38
Appellate Courts
State; include one or two levels; the highest court's decisions are final except in those cases reviewed by the U.S. Supreme Court
39
Jurisdiction
Power or authority of a court to hear and decide a given case
40
Subject Matter Jurisdiction
Authority of a court to judge a controversy of a particular kind of case - Exclusive Federal Jurisdiction and Concurrent Federal Jurisdiction
41
Exclusive Federal Jurisdiction
Federal jurisdiction is exclusive only if Congress so provides, either explicitly or implicitly.
42
Concurrent Federal Jurisdiction
Federal jurisdiction is concurrent with state jurisdiction in cases of federal questions (unless there is exclusive federal jurisdiction) and in diversity cases.
Diversity of Citizenship - Plaintiffs and defendants from different states and amount in controversy is over $75,000, or
Foreign country brings suit against US citizens, or
Suit is between US citizen and citizens of a foreign country
43
Exclusive State Jurisdiction
jurisdiction over all other (non-federal) matters
44
In Personam Jurisdiction
Based upon claims against a person, in contrast to jurisdiction over the person's property
Most states have adopted long-arm statutes.
45
In Rem Jurisdiction
Based on claims against property
46
Attachment Jurisdiction
jurisdiction over a defendant's property to obtain payment of a claim not related to the property
47
Venue
geographic area where lawsuit should be brought
48
Pleadings
a series of statements that give notice and establish the issues of fact and law presented and disputed
49
Complaint
initial pleading by the plaintiff stating his case
50
Summons
notice given to inform a person of a lawsuit against her
51
Demurrer
An allegation of a defendant that even if the facts as stated in the pleading to which objection is taken be true, their legal consequences are not such as to require the demurring party to answer them or to proceed further with the cause.
52
Judgment on Pleadings
a final ruling in favor of one party by the judge based on the pleadings
53
Discovery
right of each party to obtain evidence from the other party
54
Pretrial Conference
a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial
55
Summary Judgment
final ruling by the judge in favor of one party based on the evidence disclosed by discovery
56
Jury Selection
(voir dire) each party has an unlimited number of challenges for cause and a limited number of peremptory challenges
57
Conduct of Trial
Both attorneys make an opening statement about the facts that they expect to prove.
Witnesses testify on direct examination and cross-examination.
Closing arguments summarize the evidence and urge a favorable verdict
58
Directed Verdict
plaintiff may request the judge to rule on the merit of the case; this judgment is binding
59
Jury Instructions
particular rules of law that apply to the case
60
Verdict
formal decision by the jury on questions submitted to it
61
Motions Challenging Verdict
such as motions for a new trial and a motion for judgment notwithstanding the verdict
62
Appeal
Determines whether the trial court committed prejudicial error
63
Enforcement
Plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendant and garnishment to collect money owed.
64
Arbitration
a nonjudicial proceeding in which a neutral party selected by the disputants renders a binding decision (award).
Types of Arbitration:
Consensual Arbitration
Compulsory Arbitration
65
Consensual Arbitration
Arbitration voluntarily entered into by the parties
66
Compulsory Arbitration
Arbitration required by statute for specific types of disputes.
67
Conciliation
Nonbinding process in which a third party acts as an intermediary between the disputing parties.
68
Mediation
Nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider
69
Med-arb
Binding process in which a third party serves first as a mediator and then as an arbitrator for those issues not resolved through mediation
70
Mini-Trial
Nonbinding process in which attorneys for the disputing parties present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party
71
Summary Jury Trial
Mock trial followed by negotiations
72
Negotiation
Consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties
73
Certiorari
To be informed of. A writ of common law origin issued by a superior court to an inferior court requiring the latter to produce a certified record of a particular case tried therein. It is most commonly used to refer to the Supreme Court of the United States, which uses the writ of certiorari as a discretionary device to choose the cases it wishes to hear.
74
Federalism
the division of governing power between the federal government and the states
75
Federal Supremacy
federal law takes precedence over conflicting state law
76
Federal Preemption
right of the federal government to regulate matters within its power to the exclusion of regulation by the states
77
Judicial Review
examination of governmental actions to determine whether they conform to the U.S. Constitution
78
Separation of Powers
allocation of powers among executive, legislative, and judicial branches of government
79
State Action
actions of governments to which constitutional provisions apply
80
Federal Commerce Power
exclusive power of the federal government to regulate commerce with other nations and among the states
81
State Regulation of Commerce
the Commerce Clause restricts the states' power to regulate activities if the result obstructs interstate commerce
82
Federal Fiscal Powers
Taxation and Spending, Borrowing and Coining Money, Eminent Domain
83
Taxation and Spending
the Constitution grants Congress broad powers to tax and spend; such powers are important to federal regulation of the economy
84
Borrowing and Coining Money
enables the federal government to establish a national banking system and to control fiscal and monetary policy
85
Eminent Domain
the government's power to take private property for public use with the payment of just compensation.
86
Standards of Scrutiny
Rational Relationship Test, Strict Scrutiny Test, Intermediate Test
87
Rational Relationship Test
regulation must bear a rational relationship to a legitimate government interest.
88
Strict Scrutiny Test
regulation must be necessary to promote a compelling government interest
89
Intermediate Test
regulation must have a substantial relationship to an important government objective
90
Contract Clause
restricts states from retroactively modifying public charters and private contracts
91
First Amendment
Free Speech – is not absolute. Some forms of speech (e.g., obscenity) are not protected
92
Corporate Political Speech
a corporation's right to speak out on political issues
93
Commercial Speech
expression related to the economic interests of the speaker and its audience; receives a lesser degree of protection
94
Defamation
civil wrong or tort that diminishes a person’s reputation by publishing a false statement ; receives limited constitutional protection
95
Fifth and Fourteenth Amendments
prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law
96
Substantive Due Process
requires governmental action to be compatible with individual liberties
97
Procedural Due Process
requires the governmental decision-making process to be fair and impartial if it deprives a person of life, liberty, or property
98
Equal Protection
requires that similarly situated persons be treated similarly by governmental actions
99
Rulemaking
process by which administrative agencies promulgate rules of law.
100
Legislative Rules
substantive rules issued by an administrative agency under the authority delegated to it by the legislature
101
Interpretative Rules
statements issued by an administrative agency indicating how it construes the statutes and rules that it administers
102
Procedural Rules
rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct
103
Enforcement
process by which agencies determine whether their rules have been violated
104
Adjudication
formal methods by which an agency resolves disputes
105
Judicial Review
acts as a control or check by a court on a particular rule or order of an administrative agency
106
Legislative Control
includes control over the agency's budget and enabling statute
107
Executive Branch Control
includes the President's power to appoint members of the agency
108
Disclosure of Information
Congressionally required public disclosure enhances oversight of agency activities.
Freedom of Information Act
Privacy Act
Government in the Sunshine Act
109
Administrative Process
Entire set of activities engaged in by administrative agencies while carrying out their rulemaking, enforcement, and adjudicative functions.
110
Rule
Agency statement of general or particular applicability designed to implement, interpret, or process law or policy.
111
Administrative Agency
Government entity (other than a court or legislature) having authority to affect the rights of private parties.
112
Informal Rulemaking Requirments
Prior notice of a proposed rule, usually by publication in the Federal Register.
An opportunity for interested parties to participate in the rulemaking.
Publication of a final draft containing a concise general statement of the rule's basis and purpose at least thirty days before its effective date.
113
Formal Rulemaking
Agency must consider the record of the trial-like agency hearing and include a statement of "findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record" when making rules.
114
Hybrid Rulemaking
Results from combining the informal procedures of the Administrative Procedure Act (APA) with the additional procedures specified by the enable state. Example: An agency may be required to conduct a legislative-type hearing (formal) that permits no cross-examination (informal).
115
Order
Final disposition made by an agency
116
Freedom of Information Act (FOIA)
gives the public access to most records in the files of federal administrative agencies.
117
Crime
Any act or omission forbidden by public law.
118
Actus Reus
Wrongful or overt act
119
Mens Rea
Criminal intent or mental fault
120
Mala in se
Wrong in itself, or morally wrong
121
Mala Prohibita
Not morally wrong, but declared wrongful by law
122
Vicarious Liability
Liability imposed upon one person for the acts of another; employers may be liable
123
Liability of a Corporation
Corporations can only be fined, not imprisoned.
| Responsible corporate officers can be fined and imprisoned.
124
White-Collar Crime
Nonviolent crime involving deceit, corruption, or breach of trust.
125
Computer Crime
Use of a computer to commit a crime or a crime targeted at a computer.
126
Racketeer Influenced and Corrupt Organizations Act (RICO)
Federal law intended to stop organized crime from infiltrating legitimate businesses.
127
Larceny
Trespassers taking and carrying away of personal property of another with the intent to deprive the victim permanently of the property.
128
Embezzlement
Taking of another's property by a person who was in lawful possession of the property.
129
False Pretenses
Obtaining title to property of another by means of representation one knows to be materially false; made with intent to defraud.
130
Robbery
Committing larceny with the use or threat of force.
131
Burglary
Under most modern statutes, an entry into a building with the intent to commit a felony.
132
Extortion and Bribery
Offering money or property to a public official to influence the official's decision.
133
Forgery
Intentional falsification of a document to defraud
134
Bad Checks
Knowingly issuing a check without sufficient funds to cover it.
135
Defense of Person or Property
Individuals may use reasonable force to protect themselves, other individuals, and their property.
136
Duress
Coercion by threat of serious bodily harm; a defense to criminal conduct other than murder.
137
Mistake of Fact
Honest and reasonable belief that conduct is not criminal.
138
Entrapment
Inducement by a law enforcement official to commit a crime.
139
Steps in Criminal Prosecution
Generally include arrest, booking, formal notice of charges, preliminary hearing to determine probable cause, indictment or information, arraignment, and trial.
140
Fourth Amendment
Protects individuals against unreasonable searches and seizures.
141
Fifth Amendment
Protects persons against self-incrimination, double jeopardy, and being charged with a capital crime except by grand jury indictment.
142
Sixth Amendment
Provides the accused with the right to a speedy and public trial, the opportunity to confront witnesses, process for obtaining witnesses, and the right to counsel.
143
Tort
Relief from civil wrong or injury.
Injuries may be inflicted intentionally, negligently, or without fault (strict liability).
In a tort action, the injured party seeks compensation or damages.
144
Tort Intent
Actor (the tortfeasor) desires to cause the consequences of her actions. OR
Knows that the consequences are substantially certain to result from her act.
145
Battery
Intentional infliction of harmful or offensive bodily contact.
146
Assault
Intentional infliction of apprehension of immediate bodily harm or offensive contact.
147
False Imprisonment
Intentional confining of a person against her will.
148
Infliction of Emotional Distress
Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.
149
Defamation
False communication that injures a person's reputation
| Libel, Slander
150
Libel
Written or electronically transmitted defamation
151
Slander
Spoken defamation
| Requires publication to a third party
152
Defamation Case Defenses
Truth, absolute privilege, conditional privilege, and constitutional privilege
153
Appropriation
Unauthorized use of a person's identity
154
Intrusion
Unreasonable and offensive interference with the seclusion of another
155
Public Disclosure of Private Facts
Offensive publicity of private information
156
False Light
Offensive and false publicity about another
157
Defenses of Invasion of Privacy
Absolute, conditional, and constitutional privilege apply to any matter that is an invasion of privacy.
158
Misuse of Legal Procedure
Torts of malicious prosecution, wrongful civil proceeding, and abuse of process that protect an individual from unjustifiable litigation.
159
Real Property
Land and anything attached to it
160
Real Property Trespass
Wrongfully entering land of another
161
Real Property Nuisance
A nontrespassory interference with another's use and enjoyment of land.
162
Personal Property
Property other than land
163
Personal Property Trespass
An intentional taking or use of another's personal property.
164
Conversion
Intentional exercise of control over another's personal property.
165
Interference with Contractual Relations
Intentionally causing one of the parties to a contract not to perform
166
Disparagement
Publication of false statements about another's property or products
167
Fraudulent Misrepresentation
A false statement, made with knowledge of its falsity, intended to induce another to act.
168
Subjective Fault
Purposeful, knowing, or reckless
169
Objective Fault
Gross deviation from reasonable conduct
170
Liability Without Fault
Crime to do a specific act or cause a certain result without regard to the care exercised.
171
Mail Fraud
Using the mail to carry out a scheme that attempts to defraud others.
172
Recklessness
Conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed
