Study for Midterm Flashcards
If multiple wills are made, which one is the most valid?
The Most Recently dated Will
What are some other considerations used by courts on issues involving the law of contracts applying to “Conflict of law” ?
1) The law of the state where the contract was made
2) The law of the place of performance
3) “Grouping of contracts” or “Center of Gravity”
4) The law of the state specified in the contract
What is one term (criteria) in a case involving “respondeat superior”?
The tort must be within the Scope of their employment.
What is the “power to hear a case.”
Jurisdiction
What is the term ethics used to describe?
Good behavior
This is what juristiction the court has over individuals?
Long Arm Statute
This is a wrongful act or ommission committed by one person against another or against another’s property.
A Tort
This is a person at the lowest level and intermediary levels of the court?
Judges
This negligence dotrine bars the recovery of damages by an injured party on the ground that such party acted with actual or constructive knowledge of the hazard causing the injury?
Assumption of the Risk
What is the “role of morality”?
Ethical Conduct
This is created by a legislative body.
Legislation
A grant of temportary possession of personal property is called?
Bailment
What are 4 common schools of Jurisprudential thought?
1) Natural law
2) Positive law
3) Legal realism
4) Sociological
This law defines the process by which rights and duties are enforced.
Procedural law
Who is the “Appellant”?
Party who appeals
What is the easiest way to resolve a contractual dispute that takes place in two states?
Put it in the Contract
Negligence for professionals?
Malpractice.
This is negligence shown through violation of a statute or ordinance?
“Negligence Per Se”
What are the “negligence elements” in tort law aka “Five Elements of the prima facie case”?
1) Person must have a Duty
2) That duty must be Breached
3) That breach must be the Actual Cause
4) It must also be the Proximate Cause
5) Damages are awarded_._
Rights granted by the government to one who invents something?
Patent
What are laws passed by local governments (i.e. City counsel)
Ordinances
What type of comparative negligence do we use?
_Modified Comparitive _
What is the time period between filing a complaint and the occurrence of the trial?
The Discovery Period
This is abandoned by the owner with no intention to reclaim it?
Abandoned Property
ON EXAM What is “Res Ispa Loquitor” actualy?(not in latin)
It is a rebuttle presumption that the defendent was negligent.
What is “diversity of Citizenship”?
Both parties must be from different states
What is a deposition?
Oral questioning under oath
When you put Real Estate in a will it is called?
Devise
These are extremely important players in the court system. They control the litigation during trial, including the evidence presented to a jury.
Trial Judges
Under the contributory negligence, if the π is 1% at fault and the defendant is (contributes) 99% at fault how much does the π get?
Nothing
Under Modified comparitive negligence, if the** π is 40% at fault** and the defendant is 60% at fault, how much does the π get?
60%
What would constitute material given after a request for production of documents?
Videos, Medical bills/records
What two things can happen after a complaint/answer is filed?
1) Motion for summary judgement
2) Motion to dismiss
What does “Stare Decisis” imply?
That rule decided stands, and will still adhere to further cases involving the same issue
What is the Judges role?
To apply the law
ON EXAM This is the theory of liability by which one person is liable for the torts of another (i.e. Employer ==> Emplyee)
“Respondeat superior”
This law determines rights and duties.
Substantive law
When you want to get more then one defendant“on the hook”, what kind of liability is it?
Joint and Several
What is a “Motion of summary judgement”?
When there is NO QUESTION OF FACT.
Why is Aritration different from Mediation?(2)
1) Arbitration is Binding
2) Arbitor is equal to a judge
Why is Negotiation different from Arbitration, and Mediation?
Negotiation doesn’t have a third party
What are two types of legislation?
1) Statutes
2) Ordinances.
What are interrogatories?
Written questions
What are some things a person must know before they can legally sign a will?
1) what they have
2) What they’re signing
3) Who it’s going to
This school of Jurisprudential thought states “law is what judge say the law is.”
Legal realism
This school of Jurisprudential thought says “law reflects society.”
Sociological
When does “Res Judicata” apply?
When ,”between the parties themselves”, that particular matter is closed at the conclusion of the lawsuit
What is the main purpose of Tort Law?
Give Compensatory Damages
Judges at the highest level of estate are called?
Justices
What do legislative and judicial laws provide the rules of?
Substantive law
This figures out if there is enough evidence to go to trial?
An indictment.
What are the terms (names) for
1) people/persons with or without a current will,
2) and the people who are in charge of thier estate
when there is only 1 person and 1 beneficiary (respectivly)?
1) Testate; Executor (with a will)
2) Intastate; Administrator (without a will)
What are two types of Trespass?
1) Intentional
2) Negligent
When you put property in a will it is called?
Bequest
The power of courts to declare law and executive actions unconstitutional is called?
the “Doctrine of Judicial Review”
What is one reason to have your case brought to federal court?
If it’s a “question of federal law” (i.e. if something broke the constitution)
What’s the standard for negligence?
The Reasonable Man Standard
This is a law passed by congress or the legislative body of a state
A statute
What does “Res Judicata” imply?
That the losing party cannot again ask a court to decide the dispute
What is the chain of people who property goes to for an intestate person called?
_Intestacy _
What are two broad categories of Compensitory Damages?
1) Economic- Money you pay, Lost Wages
2) Non-Economic- Pain and Suffering
Under comparitive negligence if the π is 1% at fault and the defendant is 99% at fault how much does the π get?
99%
What are the three general categories of public law?
1) Constitutional law
2) Administrative law
3) Criminal law
This is the legal document used within the discretion of the court to decide whether to hear a case, thereby agreeing to review a lower courts decision?
“Write of certiorari”
This, in theory, is “a judicial sale of chattel to the wrongdoer” (i.e. Using someone else’s lumber for building purposes would be considered this)
Conversion
A person’s mental ability is also reffered to as?
Capacity
Name two very important principals (doctrines) of constitutional law that are basic to our judicial system.
1) Doctrine of separation of powers (three branches of government).
2) Doctrine of judicial review (power of courts to declare acts of legislative and executive branches unconstitutional).
Who is The person who the suit is against?
The defendant (Delta, “Triangle”)
True or False - “Each party pays their own legal fees in a case”
TRUE (It is called the “American system”)
What are two types of damages in Tort Action?
1) Compensatory (make the person whole)
2) Punitive (to punish, usually criminal law)
_______ may be used in criminal and civil matters
Jurors
Two main kind of Compensatory Damages?
1) Economic
2) Non-Economic
This is a body of legal principals used to determine the appropriate law to apply to a litigated case when more then one state is involved?
Conflict of law
What are two reasons to reject precedent?
1) The previous decision was clearly wrong
2) If social or other conditions have changed
Who is the person who brings the law suit or files a complaint?
The Plaintiff (π)
If a person get’s in an elevator and is supposed to go to floor 16, but ends up in the basement what takes precedent?
“Res Ispa Loqiutor” - It’s the defendant’s fault
The area of law dealing with rights and duties of private parties as individual entities.
Civil law
What is the 3rd defense for negligence?
Assumption of the Risk - Negligence doctrine that bars the recovery of damages by an injured party on the ground that such party acted with actual or constuctive knowledge of the hazard causing the injury.
What three subjects does private law encompass?
1) Torts
2) Contracts
3) Property
What are the two Systems of law?
1) Criminal Law 2) Civil law
This is based on laws that originated with courts and those early precedents have been built upon over the years.
Common law
What are the Sources of law?
1) Legislation
2) Judicial (Common Law, Precedence)
What must be proven for Negligence Per Se to be in effect?
Must prove the Plaintiff suffered the type of harm thet the statute was intended to prevent.
Under Modified Comparitive Negligence if the π is greater then the defendant then defenants?
Nothing (Defendant Must be at fault for at least least 50% of the damages, and then the π recieves that percent as an award)
What can judicial pronouncements be?
1) Interpretations of statutes
2) Based on common law principals
What does the theory of “Grouping of contracts” or “Center of Gravity” do when there is a “conflict of law” with a contract?
Uses the law of the state most involved with the contract
To determine if you have juristiction over the person, what kind of stature are you using (covers limited contacts)?
Long Arm Statute
Who is the “Appelle”?
One against who the appeal is brought
This is a product of the legislative branch, aimed at determining how lawsuits are handled in courts.
Procedural law
What are the Three Major Powers of the Judiciary?
- (just remember the bold words first)*
1) Judicial Review
2) Interpret Statutes passed by Congress or State Legislatures
3) Create Law Through the Use of Judicial Precedents
What must a proximate cause be?
_Foreseeable _
Who issues an indictment to determine if someone will be prosecuted?
The Grand Jury
After you get indicted then you get charged then the judge decides if you should get what?
Bail
This type of liability is a doctrine under which a party may be required to respond in tort damages, without regard to that party’s fault? (examples: when trespassing animals, blasting operations, marketing of unsafe products causes harm)
Strict Liability
When someone is partyly responsible in a negligence case what is it called?
1) Contributory
2) Comparitive
One method of encouraging state legislatures of all states to adopt the same language for creation of statutes that would provide businesses and individuals with greater similarity is legal rights and duties across state line.
Uniform State Laws
What does the American System Discourage?
**Sueing **
Negligence is bound by what standard?
The Reasonable Man Standard
What is it called when two or more persons have an obligation that binds them indivitidually as well as jointly.
Joint and Several
This determines if someone will be prosecuted.
An Indictment
These types of remedies are injunctions or Specific perfomance remdies. Injunctions may be mandatory (requiring a person to do something) or prohibitory (stopping them doing something). Specific performance requires a party to perform a contract, for example by transferring a piece of land to the claimant.
“Equitable” remedies
“Damages by way of punishment that are allowed by the court as a result of an injury caused by a wrong that is willful and malicious”
Punitive Damages
True or false? “Torts can be accidents”?
TRUE.
After 20 days a trial is what?
Default
This relates to the laws that affect relationships between individuals, between entities, and between individuals and entities.
Private law
When you put money in a will it is called what?
Legacy
What are two types of Torts?
1) Intentional
2) _Negligent _
If there’s no damages in a tort case (you weren’t harmed) what is it called?
Nominal Damages
The study of the philosophy of law is called?
Jurisprudence
What are statutes creating a judicial remedy on behalf of one person at the expense of another
“Remedial statutes”
ON EXAM “True or false? ‘The same act can be a crime and a tort?
TRUE.
What does “voir dire” mean?
To Question perspective Jurors
In a tort case there must be what?
Damages
What is a nexis between breach of duty and injury?
1) Proximate Cause
Another name for personal property?
Chattel
What is the time limit given to bring a lawsuit called?
The Statute of Limitations
In this decided cases are the source of law.
Common law
What is the rights granted to one who creates a creative work, including a book, called?
Copyright
What are laws that regulate and control the rights and duties of persons and are used to resolve disputes?
Substantive law
ON EXAM True or false? “Punitive damages are often awarded in tort cases”?
FALSE.
Under Pure Comarative Negligence, if the plaintiff’s damages are greater then the defendants, then they can or cannot get damages?
Can (Under pure comparitive the π can get 30% if they are 70% at fault, up to 99%)
ON EXAM True or false? “You need to have the same mental capacity to buy a car as to sign a will”?
False. (you need a higher degree of mental capacity to buy a car)
Laws are made to balance what two elements?
1) Public
2) Private
True or False “a purchaser of stolen goods is guilty of conversion even though he or she does not know they are stolen?”
True
When someone infludences someone else’s legal decision(s) they are putting that person_________?
Under Duress
What is the Role of the Jury?
To determine the facts of a case.
This law includes those bodies of law that affect the public generally?
Public law
What are three main types of alternative dipsute resolution?
1) Negotiation
2) Mediation
3) Arbitration
What is it called when somone has something that has no beneficiary?
A Probate Asset
What is the Jury’s role?
To determine the facts
What is the meaning of “Res Judicata”?
“The thing has been decided”
If you want to sue someone what do you file and what do they file in response?
1) Complaint
2) Answer
This is the body of law that pertains to the relationship between individuals in an organized society?
Private law
There is a Join and Several case (where you have defendants A and B) where A is 99% at fault and B is 1% at fault, if defendant A has no assets, then how much does defendant B have to pay?
100% (even though they are only 1% at fault)
Do you think a landowner has the highest duty to a
a) Trespasser
b) Family Member
c) invited Guest
d) a business Invitee
A business Invitee
This allows the non-breaching party of a contract to recover monetary damages..
a “Legal” remedy
The Grand Jury issues an ___________?
Indictment.
A collection or compilation of the statutes passed by a legislative body on a particular subject?
A Code
This is law created by judicial pronouncements, either through interpreting a statute or by adding to common law.
Case law
This school of Jurisprudential thought says “law is a neutral command of government.”
Positive law
What are the primary systems of ethical conduct?
1) Duty based
2) Outcome based
What is the difference between “Res Judicata” and “Stare Decicis”?
“Stare Decisis”- Gives the results of THAT RULE precedent in ANY future cases
“Res Judicata”-Gives the verdict of **T**HAT MATTER precident
A landowner has a ______ to anyone who comes on their land?
Duty
“Judge made law”
Common Law
Item of property that has become attached to land and is treated as* *real property?
Fixture
What does “Res Ipsa Loquitur” mean?
“The things speaks for itself”
What are Judicial pronouncements?
1) Legal statements made by courts
Held by the owner of the real estate on which it is found, subject to the true owner’s claims.
Mislaid Property
What type of defence for negligence do we use today when someone is party responsible?
Comparitive.
What the “Burden of proof” for 1) Civil 2) Criminal law
Civil- Preponderence of evidence
Criminal-Beyond a resonable doubt
Diversity of Citizenship has to have how much in controversy, monetarily?
$75,000 or more
What are legislative laws?
Laws that have been passed by legislative bodies.
This includes those laws that impact the public generally and employ the power of government over the public.
Public law
Before someone gets charged they are issued what?
an Indictment
What are two defenses for negligence?
1) Contributory (no longer used)- bars plaintiff from incurring any damages if they contribute to the damage
2) Comparitive- the fault of the plaintiff is compared with the fault of the defendent.
These are two distinct categories of remedies that can be obtained in a breach of contract situation. ?
1) Legal
2) Equitable
This doctrine separates the federal government, state government, and each branch
the “Doctrine of Separation of Powers”
If you want to show negligence you must show that you have a _______ to someone?
Duty
What is a “Motion to dismiss”?
When there is NO QUESTION OF LAW.
Who can bring the appeal?
The defendant or the plaintiff
ON EXAM “True or false? something can be a crime and a tort?
TRUE.
What is one technique of statutory interpretation that is examined to determine the purpose of legislation, or the evil it was designed to correct?
Legislative History
What are the three major types of Discovery?
1) Interrogatories
2) Depositions
3) Request for production of documents
what is the meaning of “Stare decisis”?
“let the decision stand.”
What is the legal term for “professional negligence”?
Malpractice.
A gift made during life is called?
Inter Vivos gift
“An injury to the person, property, or rights of another person committed by actual force and violence or under such circumstances that the law will infer that the injury was caused by force of violence” is called?
(Tort of )Trespass
According to “Conflict of law”, the law applicable to a tort is generally said to be the law of which state?
The state of the place of injury
This school of Jurisprudential thought says “higher law binds all human behavior.”
Natural law
If your case is not a “question of federal law” what TWO things MUST apply to bring your case to federal court?
1) Diversity of Citizenship
2) Dispute has to involve at least $75,000
“A sum of money the court imposes on a defendant as compensation for the plaintiff by breach of a legal duty” (make them whole)
Compensatory Damages
