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ACC 473 > Slides note cards for ACC 473 > Flashcards

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

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2
Q

________ burden of proof is on the state and is beyond a reasonable doubt.

A

CRIMINAL

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3
Q

_______redresses claims, often by private parties. Seeks remedies (money damages)-not punishment.

A

CIVIL LAW

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4
Q

___________ create rights and duties.

A

SUBSTANTIVE LAW

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5
Q

___________ create rules or processes by which these rights and duties are enforced.

A

PROCEDURAL LAWS

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6
Q

Most important distinction is that _______ replaces or modifies the common law.

A

STATUTORY LAW

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7
Q

Civil law does not use ________, but rather jurisprudence constante.

A

STARE DECISIS

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8
Q

__________- a series of similarly decided cases creates precedent.

A

Jurisprudence constant

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9
Q

_______ - one case to creating binding precedent.

A

stare decisis

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10
Q

__________uses juries for both civil and criminal cases

A

common law

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11
Q

____ decided and continue to decide issues of fact, while judges decide issues of law.

A

juries

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12
Q

______are seldomly used in Civil Law countries.

A

jurries

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13
Q

Some use three ________in criminal cases. Juries are virtually non-existent in non-criminal (civil) cases.

A

judge panels

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14
Q

Lawyers have a narrower role in __________

A

civil law system

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15
Q

______ handles client’s interests, but cannot coach witnesses for trial.

A

lawyers

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16
Q

Civil Law uses an ________approach

A

inquisitorial

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17
Q

Judge does most of the questioning of witnesses-probing, not _____.

A

adversarial

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18
Q

Judges often _______cases.

A

investigate

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19
Q

_________are not elected and are life-time civil servants.

A

judges

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20
Q

_____ decide both issues of law and fact.

A

judges

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21
Q

_______ system uses deductive reasoning.

A

civil law

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22
Q

From a general principle or rule, a particular problem is_______ and solved.

A

adressed

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23
Q

Judges cannot make law, only ______ the existing law.

A

interperet

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24
Q

All general rules (mainly codes) are made by _______ bodies-Parliament, Congress etc.

A

legislative

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25
Q

Codes are written purposely ______to enable judges to have the flexibility to make rulings.

A

broad

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26
Q

__________: Legal system used in Louisiana.

A

the civil law system

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27
Q

______: uses the common law, mainly in its procedural laws such as adversarial trials, juries etc.

A

louisiana

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28
Q

_______: Legal system used in Louisiana.

A

the civil law system

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29
Q

______: still important in deciding cases

A

common law

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30
Q

_________judges are also influenced by legal experts (Restatement of Torts etc.).

A

common law

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31
Q

______: diffused power away from the judge, the king’s representative.

A

Juries

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32
Q

______: “peers” of the parties to the suit - “freedmen”-property owners.

A

juries

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33
Q

______: knew the parties well - opposite of today.

A

jurrors

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34
Q

Today in the U.S. and England, _________have been merged typically into the court of general jurisdiction of a state.

A

law and equity

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35
Q

A command in equity cannot be ignored - _______

A

contempt of court

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36
Q

______: Courts of Law issue legal remedies called “damages”

A

contrast

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37
Q

______ are dollar amounts to make the injured party whole again.

A

damages

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38
Q

The __________ issued equitable remedies, generally non-monetary in nature.

A

courts of chancery

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39
Q

Thus, ________ are commands from the Court of Chancery to do or not to do something.

A

equitable remedies

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40
Q

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.

A

equitable remedies

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41
Q

_________ are commands from the court of equity to do or not to do something.

A

equitable remedies

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42
Q

___________: arose in the 16th Century to reform the Common law.

A

Courts of Equity or Chancery

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43
Q

_______ - overly rigid and technical

A

common law

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44
Q

_________ of remedies were particularly important.

A

choice

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45
Q

_________-issued by king and Chancellor-Keeper of the King’s Conscience”

A

remedies to create equity

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46
Q

Common law uses a _________approach

A

adversial

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47
Q

_______ present their arguments - the truth will emerge.

A

adversiaries

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48
Q

______must represent their client’s interests zealously to get to the truth.

A

lawyers

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49
Q

_____ is created by judges, but judges are also asked to interpret legislatively created law, such as statutes.

A

law

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50
Q

___________-made law and statutory interpretation must be analogized or distinguished

A

both judge

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51
Q

___________ Law system uses inductive reasoning

A

common`

52
Q

.

_______ state courts are always bound by their own state supreme court decisions,

A

lower`

53
Q

Legislative bodies (e.g. Congress) are not bound by ______.

A

stare decisis

54
Q

______helped paved the way for integration and the civil rights movement.

A

ruling

55
Q

________ is rigidly bound by its own prior decisions.

A

no court

56
Q

A lower federal or state court is always bound by a _________ Court decision.

A

U.S. supreme

57
Q

Must ______compelling social, economic or technological reasons to overturn a rule of law.

A

articulate

58
Q

_________ (Latin: “stand by the decision“ or “let the decision stand”): Obligation of courts to honor past precedents.

A

stare decisis

59
Q

The second change: a new _______.

A

court system

60
Q

The ______ - a complex system of procedural safeguards.

A

second

61
Q

_____of a powerful centralized government in general (the King).

A

distrust

62
Q

________rests in multiple parties, judges, lawyers and juries.

A

power

63
Q

________- way of changing social and economic conditions.

A

dynamic system

64
Q

The American Legal System is based on the ______.

A

common law

65
Q

The U.S. Supreme Court also interprets _______.

A

federal statutes

66
Q

There is no _________(final decision is the Supreme Court’s) for interpreting statutes.

A

judicial review

67
Q

_______ can amend the statute in order to change or modify the Court’s interpretation of the statute after the Court’s ruling.

A

congress

68
Q

_________ limit legislation -rights to the people which governments cannot infringe upon.

A

bill of rights

69
Q

_________: Judges will apply a utilitarian approach or balance pain versus pleasure against each other.

A

balancing the intetrests

70
Q

Statutes and codes are often written broadly to enable judges creates ______on a case-by-case basis.

A

flexibility

71
Q

Each state has its own ______-.

A

judicial system

72
Q

The federal government has its own _________.

A

judicial system

73
Q

__________ often engage in transactions in many states, creating legal complications

A

businesses

74
Q

Within a state, _______can be assumed over persons within the state’s boundaries.

A

personal jurisdiction

75
Q

___________: 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.

A

examples of minimum contacts

76
Q

___________: 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.

A

the bottom line

77
Q

________`is concerned with the most appropriate location for the trial.

A

venue

78
Q

Generally, proper venue generally occurs where the _________ in the county.

A

injury occured

79
Q

______: power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.

A

in rem

80
Q

A court generally has _______ jurisdiction over any property situated within its geographical borders.

A

in rem

81
Q

__________ are courts of limited subject matter jurisdiction.

A

federal courts

82
Q

There are __ (with territories, 91 just states) federal district courts (they follow state and territorial lines).

A

94

83
Q

__________courts are courts of original subject matter jurisdiction-where cases originate and where trials, both criminal and civil, are heard.

A

federal district courts

84
Q

There are _ federal circuit courts of appeals.

A

13

85
Q

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:
________

A

diversity of citizenship

of federal question

86
Q

If there is no diversity or federal question, plaintiff would have to go to a state court of __________

A

general subject matter jurisdiciton

87
Q

In the federal system there are also specialized courts that have Exclusive subject matter jurisdiction over certain kinds of cases:
such as………….

A 
Bankruptcy courts
Patent, copyright and trademark cases
Federal tax cases
Some admiralty cases.
Federal antitrust cases.
88
Q

Appeals to the U.S. _________Must generally have a Writ of Certiorari accepted.

A

supreme court

89
Q

It is a _______of which at least 4 justices must agree is a case that should be heard. (Called the Rule of 4).

A

discretionary writ

90
Q

All states have a ___ of general subject matter jurisdiction.

A

court

91
Q

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.).

A

inferior courts

92
Q

Most states, except the smallest in population, also have ______ courts of appeals.

A

intermediarie

93
Q

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.

A

appealed

94
Q

In states with no _________ court, the appeal is by right to that state’s supreme court. No Writ of Certiorari is needed.

A

intermediate appeas

95
Q

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 __________

A

removal jurisdiction

96
Q

_________ is designed to protect defendants from perceived bias in a local state court, sometimes called the “Hometown Effect”.

A

removal jurisdiciton

97
Q

________ jurisdiction occurs when a case can be heard in either a federal or state court.

A

concurrent

98
Q

Which court the______chooses depends on many factors-speed, reputation of the courts, perception of the judges etc.

A

plantiff

99
Q

Successful negotiation involves thorough _______, from a position of strength.

A

preparation

100
Q

What are some advantages of mediation?

A

few rules, customize process, parties control results (win-win).

101
Q

What are some disadvantages of mediation?

A

mediator fees, no sanctions or deadlines.

102
Q

_________ are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

A

courts

103
Q

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).

A

challenged in court

104
Q

_________ and Choice-of-Law clauses in contracts govern the transaction.

A

forum selesction

105
Q

_________ are generally incorporated into international contracts.

A

arbitration clasues

106
Q

What two issues should be considered when filling a lawsuit?

A
  1. Actual case or controversy (case must be justiciable)

2. standing

107
Q

Generally, the ____________ in litigation is contacting an attorney to seek qualified legal advice.

A

first step

108
Q

Corporate Defendants served via Registered Agent for Service of Process. If the Defendant is out-of-state, Court can acquire jurisdiction by ______

A

long arm statue

109
Q

_______ admits or denies the allegations set forth in the Complaint.

A

defendant

110
Q

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.

A

counterclaims

111
Q

There are other possible responses to a Complaint other than with an _______.

A

answer

112
Q

__________: to evaluate the strengths and weakness of other side.

A

purposes of discovery

113
Q

______________: List of questions between parties.

A

Interrogatories

114
Q

___________: Documents-birth certificates, bills of sale, deeds etc.

A

Requests for Production

115
Q

__________:Court reporter, under oath, transcribes whole proceedings.

A

depositions

116
Q

__________: physical or mental exams, to inspect or enter property.

A

request for examination

117
Q

__________: Plaintiff makes opening statement.

A

state of trial

118
Q

______________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.

A

purpose of opening statement

119
Q

_______makes opening statement or reserves it for later, after plaintiff presents his case.

A

defendent

120
Q

__________: Defendant normally does this after plaintiff’s case, or plaintiff after defendant is done.

A

motion for a directed verdict

121
Q

Two important concepts for understanding the Bill of Rights: “_________” and _________

A

state action; selective incorporation

122
Q

___________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”).

A

four exceptions

123
Q

What are the speech or expressions not protected?

A

lewd and obscene
profane
defamation
insulting, fighting, and dangerous words

124
Q

what are the speech or expressions protected less?

A

commercial speech, eg. music

125
Q

What are the speech or expressions most protected?

A

political speech

ACC 473 (5 decks)

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