Slides note cards for ACC 473 Flashcards
1
Q
________burden of proof is on the plaintiff and is a “preponderance of the evidence.”
A
CIVIL
2
Q
________ burden of proof is on the state and is beyond a reasonable doubt.
A
CRIMINAL
3
Q
_______redresses claims, often by private parties. Seeks remedies (money damages)-not punishment.
A
CIVIL LAW
4
Q
___________ create rights and duties.
A
SUBSTANTIVE LAW
5
Q
___________ create rules or processes by which these rights and duties are enforced.
A
PROCEDURAL LAWS
6
Q
Most important distinction is that _______ replaces or modifies the common law.
A
STATUTORY LAW
7
Q
Civil law does not use ________, but rather jurisprudence constante.
A
STARE DECISIS
8
Q
__________- a series of similarly decided cases creates precedent.
A
Jurisprudence constant
9
Q
_______ - one case to creating binding precedent.
A
stare decisis
10
Q
__________uses juries for both civil and criminal cases
A
common law
11
Q
____ decided and continue to decide issues of fact, while judges decide issues of law.
A
juries
12
Q
______are seldomly used in Civil Law countries.
A
jurries
13
Q
Some use three ________in criminal cases. Juries are virtually non-existent in non-criminal (civil) cases.
A
judge panels
14
Q
Lawyers have a narrower role in __________
A
civil law system
15
Q
______ handles client’s interests, but cannot coach witnesses for trial.
A
lawyers
16
Q
Civil Law uses an ________approach
A
inquisitorial
17
Q
Judge does most of the questioning of witnesses-probing, not _____.
A
adversarial
18
Q
Judges often _______cases.
A
investigate
19
Q
_________are not elected and are life-time civil servants.
A
judges
20
Q
_____ decide both issues of law and fact.
A
judges
21
Q
_______ system uses deductive reasoning.
A
civil law
22
Q
From a general principle or rule, a particular problem is_______ and solved.
A
adressed
23
Q
Judges cannot make law, only ______ the existing law.
A
interperet
24
Q
All general rules (mainly codes) are made by _______ bodies-Parliament, Congress etc.
A
legislative
25
Codes are written purposely ______to enable judges to have the flexibility to make rulings.
broad
26
__________: Legal system used in Louisiana.
the civil law system
27
______: uses the common law, mainly in its procedural laws such as adversarial trials, juries etc.
louisiana
28
_______: Legal system used in Louisiana.
the civil law system
29
______: still important in deciding cases
common law
30
_________judges are also influenced by legal experts (Restatement of Torts etc.).
common law
31
______: diffused power away from the judge, the king’s representative.
Juries
32
______: “peers” of the parties to the suit - “freedmen”-property owners.
juries
33
______: knew the parties well - opposite of today.
jurrors
34
Today in the U.S. and England, _________have been merged typically into the court of general jurisdiction of a state.
law and equity
35
A command in equity cannot be ignored - _______
contempt of court
36
______: Courts of Law issue legal remedies called “damages”
contrast
37
______ are dollar amounts to make the injured party whole again.
damages
38
The __________ issued equitable remedies, generally non-monetary in nature.
courts of chancery
39
Thus, ________ are commands from the Court of Chancery to do or not to do something.
equitable remedies
40
Equity Courts began to issue their own remedies, called ________, which are generally non-monetary in nature. Examples are injunctions, temporary restraining orders (TRO’s), specific performance.
equitable remedies
41
_________ are commands from the court of equity to do or not to do something.
equitable remedies
42
___________: arose in the 16th Century to reform the Common law.
Courts of Equity or Chancery
43
_______ - overly rigid and technical
common law
44
_________ of remedies were particularly important.
choice
45
_________-issued by king and Chancellor-Keeper of the King’s Conscience”
remedies to create equity
46
Common law uses a _________approach
adversial
47
_______ present their arguments - the truth will emerge.
adversiaries
48
______must represent their client’s interests zealously to get to the truth.
lawyers
49
_____ is created by judges, but judges are also asked to interpret legislatively created law, such as statutes.
law
50
___________-made law and statutory interpretation must be analogized or distinguished
both judge
51
___________ Law system uses inductive reasoning
common`
52
.
| _______ state courts are always bound by their own state supreme court decisions,
lower`
53
Legislative bodies (e.g. Congress) are not bound by ______.
stare decisis
54
______helped paved the way for integration and the civil rights movement.
ruling
55
________ is rigidly bound by its own prior decisions.
no court
56
A lower federal or state court is always bound by a _________ Court decision.
U.S. supreme
57
Must ______compelling social, economic or technological reasons to overturn a rule of law.
articulate
58
_________ (Latin: "stand by the decision“ or “let the decision stand”): Obligation of courts to honor past precedents.
stare decisis
59
The second change: a new _______.
court system
60
The ______ - a complex system of procedural safeguards.
second
61
_____of a powerful centralized government in general (the King).
distrust
62
________rests in multiple parties, judges, lawyers and juries.
power
63
________- way of changing social and economic conditions.
dynamic system
64
The American Legal System is based on the ______.
common law
65
The U.S. Supreme Court also interprets _______.
federal statutes
66
There is no _________(final decision is the Supreme Court’s) for interpreting statutes.
judicial review
67
_______ can amend the statute in order to change or modify the Court’s interpretation of the statute after the Court’s ruling.
congress
68
_________ limit legislation -rights to the people which governments cannot infringe upon.
bill of rights
69
_________: Judges will apply a utilitarian approach or balance pain versus pleasure against each other.
balancing the intetrests
70
Statutes and codes are often written broadly to enable judges creates ______on a case-by-case basis.
flexibility
71
Each state has its own ______-.
judicial system
72
The federal government has its own _________.
judicial system
73
__________ often engage in transactions in many states, creating legal complications
businesses
74
Within a state, _______can be assumed over persons within the state's boundaries.
personal jurisdiction
75
___________: 1. Presence in the state by transacting business in the state; 2. ownership of real property in the state; 3. contracting to insure someone in the state; 4. commission of a tort in the state.
examples of minimum contacts
76
___________: If you're a corporation and you ship goods and services out of state, be prepared to be sued in those states you conduct business in especially if it’s on an ongoing basis.
the bottom line
77
________`is concerned with the most appropriate location for the trial.
venue
78
Generally, proper venue generally occurs where the _________ in the county.
injury occured
79
______: power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.
in rem
80
A court generally has _______ jurisdiction over any property situated within its geographical borders.
in rem
81
__________ are courts of limited subject matter jurisdiction.
federal courts
82
There are __ (with territories, 91 just states) federal district courts (they follow state and territorial lines).
94
83
__________courts are courts of original subject matter jurisdiction-where cases originate and where trials, both criminal and civil, are heard.
federal district courts
84
There are _ federal circuit courts of appeals.
13
85
Since Federal Courts are courts of limited subject matter jurisdiction, a plaintiff would have to comply with one of the two following requirements to gain entry into the federal court system:
________
diversity of citizenship
| of federal question
86
If there is no diversity or federal question, plaintiff would have to go to a state court of __________
general subject matter jurisdiciton
87
In the federal system there are also specialized courts that have Exclusive subject matter jurisdiction over certain kinds of cases:
such as.............
```
Bankruptcy courts
Patent, copyright and trademark cases
Federal tax cases
Some admiralty cases.
Federal antitrust cases.
```
88
Appeals to the U.S. _________Must generally have a Writ of Certiorari accepted.
supreme court
89
It is a _______of which at least 4 justices must agree is a case that should be heard. (Called the Rule of 4).
discretionary writ
90
All states have a ___ of general subject matter jurisdiction.
court
91
State systems also have ______ of limited and exclusive subject matter jurisdiction. Examples include probate court, small claims courts, juvenile courts etc. (See page 38 in 12th ed.).
inferior courts
92
Most states, except the smallest in population, also have ______ courts of appeals.
intermediarie
93
Cases that go through a state system that could have otherwise have gone in the federal system (U.S. Constitutional issues, federal questions), can be_______ to the U.S. Supreme Court if a Writ of Certiorari is granted again by the Supreme Court.
appealed
94
In states with no _________ court, the appeal is by right to that state’s supreme court. No Writ of Certiorari is needed.
intermediate appeas
95
When a plaintiff goes to state court of general subject matter jurisdiction when he could've gone first to federal court, the defendant may remove the case to the local federal district court. Called __________
removal jurisdiction
96
_________ is designed to protect defendants from perceived bias in a local state court, sometimes called the “Hometown Effect”.
removal jurisdiciton
97
________ jurisdiction occurs when a case can be heard in either a federal or state court.
concurrent
98
Which court the______chooses depends on many factors-speed, reputation of the courts, perception of the judges etc.
plantiff
99
Successful negotiation involves thorough _______, from a position of strength.
preparation
100
What are some advantages of mediation?
few rules, customize process, parties control results (win-win).
101
What are some disadvantages of mediation?
mediator fees, no sanctions or deadlines.
102
_________ are not involved in arbitration unless an arbitration clause in a contract needs enforcement.
courts
103
If ___________ disputant must show that there was wrong-doing (bribe etc.) or it violates the general public policy of American law. (Labor arbitration allows dangerous drug user from being discharged).
challenged in court
104
_________ and Choice-of-Law clauses in contracts govern the transaction.
forum selesction
105
_________ are generally incorporated into international contracts.
arbitration clasues
106
What two issues should be considered when filling a lawsuit?
1. Actual case or controversy (case must be justiciable)
| 2. standing
107
Generally, the ____________ in litigation is contacting an attorney to seek qualified legal advice.
first step
108
Corporate Defendants served via Registered Agent for Service of Process. If the Defendant is out-of-state, Court can acquire jurisdiction by ______
long arm statue
109
_______ admits or denies the allegations set forth in the Complaint.
defendant
110
A defendant can also make _______, which must be responded to by the plaintiff (who now becomes a defendant too) with a REPLY, also a kind of pleading.
counterclaims
111
There are other possible responses to a Complaint other than with an _______.
answer
112
__________: to evaluate the strengths and weakness of other side.
purposes of discovery
113
______________: List of questions between parties.
Interrogatories
114
___________: Documents-birth certificates, bills of sale, deeds etc.
Requests for Production
115
__________:Court reporter, under oath, transcribes whole proceedings.
depositions
116
__________: physical or mental exams, to inspect or enter property.
request for examination
117
__________: Plaintiff makes opening statement.
state of trial
118
______________is to inform the jury and the court, in a general way, the nature of the action and the basic facts intended to be proved.
purpose of opening statement
119
_______makes opening statement or reserves it for later, after plaintiff presents his case.
defendent
120
__________: Defendant normally does this after plaintiff's case, or plaintiff after defendant is done.
motion for a directed verdict
121
Two important concepts for understanding the Bill of Rights: "_________" and _________
state action; selective incorporation
122
___________to the First Amendment Bill of Rights freedom of speech and expression: 1. Lewd & Obscene; 2. Profane 3. Libel and Slander; 4. Insulting, fighting and dangerous words (Example “Yelling fire in a crowded theater”).
four exceptions
123
What are the speech or expressions not protected?
lewd and obscene
profane
defamation
insulting, fighting, and dangerous words
124
what are the speech or expressions protected less?
commercial speech, eg. music
125
What are the speech or expressions most protected?
political speech
