Oral Exam Flashcards
Law
A set of rules of conduct established by the government for all members of society to obey in an effort to achieve justice for all.
- hard and fast rules that determine human conduct
- pervasive
- helps us avoid chaos and create order for society
- deters people from acting in a way that negatively affects the quality of life of other people
- rules that are aimed at promoting the common good
EXAMPLE
- National Traffic and Motor Vehicle Safety Act (1966)
–> Authorized the National Highway Traffic Safety Administration (NHTSA) to establish and enforce safety standards for motor vehicles
—> meant to reduce deaths related to vehicle design (also encompasses seat belts and airbags).
Regulations
Rules promulgated and adopted by the administrative agency, which is responsible fro implementing, overseeing, and enforcing the regulations in accordance with a law passed by congress or other legislative body.
- only affects those who deal directly with the agency who is enforcing them
- is a source of law
EXAMPLE
- speed limits
- traffic lights
Policies
Written rules that guide a government agency, by which the agency achieves its unique task, authorized by congress for the benefit of society as a whole.
- policies are the general guidelines meant to help people direct their actions to abide by the overarching laws
EXAMPLE
- National Roadway Safety Strategy (Department of Transportation)
–> Contains Regulations (such as speed rules and traffic light rules)
—> Helps enforce National Traffic and Motor Vehicle Safety Act (1966)
Substantive vs Procedural
Substantive law defines the rights and duties of the individual, determining legal wrongs and the consequences. (what the law is)
EXAMPLE
- The specific types of details of alleged injury that must be proven by the plaintiff (in tort, contract, personal, real property, or other civil injury alleged)
Procedural law defines the enforcement the law fairly. (how law is applied and enforced)
EXAMPLe
- Federal or state court rules about filing a lawsuit, the process for serving legal documents, and the procedures for conducting trials
Common vs Civil
Common law relies on judicial precedents. It is typically two sided (plaintiff and defense). Britain established it as the way of practicing law in all former colonies.
Civil law based on comprehensive legal codes (statutes). The statutes tend to be very dependent on the government and will change with it. Process is more inquisitorial with the judges investigating the facts.
Federal vs State
Federal:
- deals with constitutionality
- involves laws and treaties
- involves ambassadors and public ministers
- disputes between states
- admiralty law
- bankruptcy
- Habeas Corpus issues (a legal procedure where a court orders a person holding another individual in custody to bring them before the court to explain the legal basis for their detention)
State:
- Most cases involving individuals or entities (as long as it happened within state lines, it’s fair game)
- State courts are the final arbiters of state
laws and constitutions. However, their
interpretation of federal law or the U.S.
Constitution may be appealed to the U.S.
Supreme Court (which chooses whether or not it wants to hear the case)
☆ Criminal vs Civil ☆
Criminal law:
- involve an illegal activity by an
accused person(s) or institution that is deemed
harmful to society
BURDEN OF PROOF
- Beyond a reasonable doubt
–> Prosecution must prove beyond a reasonable doubt (99.9% certain) USING admissible evidence
Civil Law:
- involve conflicts between a person(s) or
institutions, typically over money.
BURDEN OF PROOF
- preponderance of the admitted evidence
–> Plaintiff must provide just over 50% certainty
Marbury vs Madison
ISSUE:
DECISION:
RATIONALE:
CONCURRING OPINIONS:
New York Times vs Sullivan
ISSUE: Can a public official win a defamation case without evidence of “actual malice”
DECISION: the official (or famous person) must provide admissible evidence that the other party knew the statements were false or acted with reckless disregard for the truth and published false information with actual malice to affect the reputation of the individual
RATIONALE: As a public official (or famous person), you are putting yourself out there for people to talk about. Some of that talking will be criticism and unpleasant.
CONCURRING OPINIONS: Justice Hugo Black (agreed and said that the First Amendment shouldn’t need to provide absolute protection) Justice William O. Douglas (agreed and stated that the actual malice standard might be too restrictive)
Fundamental Principles of American Law
The Rule of Law
Judicial Review
Stare Decisis
Justice
The Rule of Law
Is the legal system in the United States that sets the rules of the game for business and for all activities for everyone in the United States.
-It creates a stable framework where plans can be made, property can be protected, expectations can exist, complaints can be made, and rights can be protected.
-Any violation of the law can result in penalties.
- The rule of law limits government from engaging in abusive practices against businesses and protects consumers from harmful business practices
Judicial Review
Is the power of courts to examine the actions of the legislative, executive, and administrative branches of (federal and state) governments to ensure they are consistent with the constitution.
- If an action is found to be unconstitutional, it can be declared null and void.
- This process helps maintain a system of checks and balances within the government.
Stare Decisis
“to stand by things decided”
Refers to the legal principle through which courts are mandated to follow the rulings of previous cases (precedents) to ensure consistency and predictability in the application of law.
- However, courts can overturn precedent if they believe it is no longer applicable or just.
Justice
Equitable and fairness for everyone, giving remedy to those unfairly wronged.
Types of Torts
1) Intentional Tort
2) Negligence Tort
3) Strict Liability
4) Business Tort
Intentional Tort
This type of tort occurs when an individual (tortfeasor) intentionally committed a wrongful act causing harm to another individual. The key distinction with intentional torts is the requirement of demonstrating that the defendant committed the tort on purpose.
Negligence Tort
Failure to exercise a reasonable standard of care may result in a negligent tort. For a negligent tort case to be successful, there need to be four elements present: duty, breach of duty, causation, and damages. Negligence torts make up the majority of tort lawsuits.
EXAMPLE
- Slip and fall accidents
- Car accidents
- Truck accidents
- Motorcycle accidents
- Pedestrian accidents
- Bicycle accidents
- Medical malpractice
Strict Liability
In strict liability tort cases, the focus shifts from the individual or party committing the tort to the act or incident itself creates the injury. In other words, strict
liability cases do not take into consideration intent or even negligence on the part of the wrongdoer. What matters is the action and the resulting damages that occurred.
Business Tort
Anything that could go wrong in the workplace
- Sexual Harassment
- Infliction of Emotional Distress
- Employment Discrimination
- Wrongful Termination
- Payment Disputes
- Workers’ Compensation
- Personal Injury
- Unemployment
Common elements in ALL tort lawsuits
Intent
Act
Cause
Intent
Acting with purpose or having knowledge that the harmful act can cause injury to another person.
Act
Requires the person to perform an act that results in harm to another.
- Thinking about or planning to perform an act does not constitute acting.
Cause
Requires the victim to prove that, without the defendant’s action or failure to act, the injury (and resulting damage) would not have occurred.
Elements required to prove a negligence lawsuit
1) duty
2) breach of duty
3) injury
4) causation
