Study for Midterm Flashcards
1
Q
If multiple wills are made, which one is the most valid?
A
The Most Recently dated Will
2
Q
What are some other considerations used by courts on issues involving the law of contracts applying to “Conflict of law” ?
A
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
2
Q
What is one term (criteria) in a case involving “respondeat superior”?
A
The tort must be within the Scope of their employment.
3
Q
What is the “power to hear a case.”
A
Jurisdiction
3
Q
What is the term ethics used to describe?
A
Good behavior
3
Q
This is what juristiction the court has over individuals?
A
Long Arm Statute
4
Q
This is a wrongful act or ommission committed by one person against another or against another’s property.
A
A Tort
4
Q
This is a person at the lowest level and intermediary levels of the court?
A
Judges
5
Q
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?
A
Assumption of the Risk
6
Q
What is the “role of morality”?
A
Ethical Conduct
6
Q
This is created by a legislative body.
A
Legislation
6
Q
A grant of temportary possession of personal property is called?
A
Bailment
7
Q
What are 4 common schools of Jurisprudential thought?
A
1) Natural law
2) Positive law
3) Legal realism
4) Sociological
7
Q
This law defines the process by which rights and duties are enforced.
A
Procedural law
7
Q
Who is the “Appellant”?
A
Party who appeals
7
Q
What is the easiest way to resolve a contractual dispute that takes place in two states?
A
Put it in the Contract
8
Q
Negligence for professionals?
A
Malpractice.
9
Q
This is negligence shown through violation of a statute or ordinance?
A
“Negligence Per Se”
10
Q
What are the “negligence elements” in tort law aka “Five Elements of the prima facie case”?
A
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_._
10
Q
Rights granted by the government to one who invents something?
A
Patent
11
Q
What are laws passed by local governments (i.e. City counsel)
A
Ordinances
12
Q
What type of comparative negligence do we use?
A
_Modified Comparitive _
13
Q
What is the time period between filing a complaint and the occurrence of the trial?
A
The Discovery Period
14
Q
This is abandoned by the owner with no intention to reclaim it?
A
Abandoned Property
15
_ON EXAM_ What is "*Res Ispa Loquitor*" **actualy**?(not in latin)
It is _a rebuttle presumption_ **that the** **defendent was negligent.**
17
What is "*diversity of Citizenship*"?
**Both** **parties** must be from **different states**
18
What is a **deposition**?
**_Oral questioning_** _under oath_
18
When you put **Real Estate** in a **will** it is called?
**_Devise_**
19
These are extremely **important players** **in the court** system. They **control the litigation** during trial, including the **evidence** presented to a jury.
**_Trial Judges_**
19
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_**
20
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%_**
21
What would constitute **material given** after a **request for production of documents**?
**_Videos, Medical bills/records_**
21
What two things can happen **after a complaint/answer is filed**?
1) **_Motion for summary judgement_**
2) **_Motion to dismiss_**
22
What does "*Stare Decisis*" **imply**?
**That rule decided** **stands**, and will still adhere to further cases involving the same issue
23
What is the **Judges** role?
**_To apply the law_**
24
_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"_**
25
This law determines **rights and duties**.
**_Substantive law_**
26
When you want to get **more then one defendant**"on the hook", what kind of liability is it?
**_Joint and Several_**
27
What is a "*Motion of summary judgement*"?
When there is **NO QUESTION OF FACT**.
27
Why is **Aritration** different from **Mediation**?(2)
1) **Arbitration** is **Binding**
2) **Arbitor is** **equal to a judge**
28
Why is **Negotiation** different from **Arbitration,** and **Mediation?**
Negotiation **doesn't** have a **third party**
29
What are two types of **legislation**?
1) **_Statutes_**
2) **_Ordinances._**
30
What are **interrogatories**?
**_Written questions_**
30
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
32
This school of **Jurisprudential** **thought** states "*law is what judge say the law is*."
**_Legal realism_**
32
This school of **Jurisprudential** **thought** says "law reflects society."
**_Sociological_**
32
When does "*Res Judicata*" apply?
When ,"*between the parties themselves*", **that particular** **matter** is **closed** at the **conclusion** of the lawsuit
33
What is the main **purpose** of **Tort Law**?
**_Give Compensatory Damages_**
34
Judges at the **highest level** of estate are called?
**_Justices_**
35
What do **legislative and judicial laws** *provide the rules* of?
**_Substantive law_**
36
This figures out if there is enough evidence to go to trial?
**_An indictment._**
37
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)
38
What are two types of Trespass?
1) Intentional
2) Negligent
39
When you put **property** in a **will** it is called?
**_Bequest_**
41
The **power of courts** to **declare** law and executive actions **unconstitutional** is called?
the "*Doctrine of Judicial Review*"
42
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)
43
What's the standard for negligence?
**_The Reasonable Man Standard_**
44
This is a **law** passed by **congress** or the **legislative body** of a **_state_**
**_A statute_**
45
What does "*Res Judicata*" **imply**?
That the **losing party cannot again ask** a court to decide the dispute
47
What is the **chain of people** who **property goes to** for an **intestate** person called?
**_Intestacy _**
48
What are two broad categories of **Compensitory Damages**?
1) **_Economic_**- Money you pay, Lost Wages
2) **_Non-Economic_**- Pain and Suffering
48
Under **comparitive negligence** if **the π is 1%** **at fault** and the **defendant is 99% at fault** how much does the π get?
**_99%_**
49
What are the three general categories of **public law**?
1) **_Constitutional law_**
2) **_Administrative law_**
3) **_Criminal law_**
50
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"_**
51
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_**
52
A person's **mental ability** is also reffered to as?
**_Capacity_**
53
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).
55
Who is The **person who the suit is against****?**
**_The defendant_** (Delta, "Triangle")
56
True or False - "Each party pays their own legal fees in a case"
TRUE (It is called the "American system")
57
What are two types of **damages in Tort Action**?
1) **_Compensatory_** (make the person whole)
2) **_Punitive_** (to punish, usually criminal law)
58
\_\_\_\_\_\_\_ may be used in **criminal and civil matters**
**_Jurors_**
58
Two main kind of Compensatory Damages?
1) Economic
2) Non-Economic
60
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_**
60
What are two **reasons** to reject **precedent**?
1) The **previous decision** was clearly **wrong**
2) If **social** or **other conditions** have **changed**
61
Who is the person who brings the law suit or files a complaint?
_**The Plaintiff** (π)_
62
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
63
The area of law **dealing with rights and duties of private parties as individual entities**.
**_Civil law_**
64
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.
66
What three **subjects** does **private law** encompass?
1) **_Torts_**
2) **_Contracts_**
3) **_Property_**
67
What are the two **_Systems_** of law?
1) **_Criminal Law_** 2) **_Civil law_**
68
This is based on laws that **originated with courts** and those early **precedents** have been built upon over the years.
**_Common law_**
69
What are the **_Sources_** of law?
1) Legislation
2) Judicial (Common Law, Precedence)
70
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**.
71
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)
72
What can **judicial pronouncements** be?
**1) Interpretations** of statutes
**2)** Based on **common law principals**
73
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
73
To determine if you have **juristiction over the person**, what kind of **stature** are you using (covers limited contacts)?
**_Long Arm Statute_**
75
Who is the "*Appelle"*?
One **against who the appeal is brought**
76
This is a **product** of the **legislative branch**, aimed at determining **how** lawsuits are handled in courts.
**_Procedural law_**
78
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
79
What must a **_proximate cause_** be?
**_Foreseeable _**
81
Who issues an **indictment** to determine if someone will be **prosecuted**?
**_The Grand Jury_**
82
After you get **indicted** then you get **charged** then the **judge decides if you should get what**?
**_Bail_**
83
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_**
84
When someone is partyly responsible in a negligence case what is it called?
1) Contributory
2) Comparitive
85
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_**
86
What does the **American System** Discourage?
**Sueing **
87
Negligence is bound by what standard?
**_The Reasonable Man Standard_**
89
What is it called when **two or more persons** have an **obligation** that **binds** them **indivitidually as well as jointly.**
**_Joint and Several_**
90
This determines **if someone will be prosecuted**.
**_An Indictment_**
90
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
91
"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_**
93
**True or false**? "**Torts** can be accidents"?
**_TRUE._**
93
After **20 days** a trial is what?
**_Default_**
94
This relates to the laws that **affect relationships** between **individuals**, between **entities**, and between **individuals and entities**.
**_Private law_**
95
When you put **money** in a **will** it is called what?
**_Legacy_**
97
What are two types of **Torts**?
1) **_Intentional_**
2) **_Negligent _**
98
If there's no damages in a tort case (you weren't harmed) what is it called?
**_Nominal Damages_**
99
The study of the **philosophy of law** is called?
**_Jurisprudence_**
101
What are **statutes** creating a judicial **remedy** on behalf of one person at the expense of another
"***_Remedial statute_*****_s_**"
103
_ON EXAM_ "True or false? 'The **same act** can be a **crime** and a **tort**?
**_TRUE._**
105
What does "*voir dire*" mean?
_To Question perspective Jurors_
106
In a tort case there must be what?
**_Damages_**
108
What is a nexis between **breach of duty** and **injury**?
1) **_Proximate Cause_**
108
Another name for **personal property**?
**_Chattel_**
110
What is the **time limit** given to bring a lawsuit called?
**_The Statute of Limitations_**
111
In this *decided cases* are the **source** of law.
**_Common law_**
113
What is the **rights** granted to one who **creates a creative work,** including a book, called?
**_Copyright_**
114
What are **laws** that **regulate and control** the rights and duties of **persons** and are **used to resolve disputes**?
**_Substantive law_**
115
_ON EXAM_ True or false? "Punitive damages are often awarded in tort cases"?
**_FALSE._**
115
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%)
116
_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)
117
**Laws** are made to **balance** what **two elements**?
1) **_Public_**
2) **_Private_**
118
True or False "a purchaser of stolen goods is guilty of conversion even though he or she does not know they are stolen?"
**_True_**
119
When someone infludences someone else's legal decision(s) they are putting that person\_\_\_\_\_\_\_\_\_?
**_Under Duress_**
121
What is the **Role of the Jury**?
To **determine the facts** of a case.
122
This **law** includes those bodies of law that affect the **public** generally?
**_Public law_**
123
What are three main types of **alternative dipsute resolution**?
1) **_Negotiation_**
2) **_Mediation_**
3) **_Arbitration_**
124
What is it called when somone has **something that has no beneficiary**?
**_A Probate Asset_**
126
What is the **Jury's** role?
To _determine the **facts**_
128
What is the meaning of "*Res Judicata*"?
"*The thing has been decided*"
129
If **you want to sue someone** what do you **file** and what do **they file in response**?
1) **_Complaint_**
2) **_Answer_**
131
This is the body of **law** that pertains to the relationship between **individuals** in an organized **society**?
**_Private law_**
132
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, i**f **defendant A has no assets**, then h**ow much does defendant B have to pay**?
**_100%_** (even though they are only 1% at fault)
133
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_**
134
This allows the non-breaching party of a **contract** to recover **monetary** damages..
a "Legal" **remedy**
135
The **Grand Jury** issues an \_\_\_\_\_\_\_\_\_\_\_?
**_Indictment._**
137
A collection or compilation of the **statutes** passed by a **legislative body** on a particular subject?
**_A Code_**
138
This is law created by **judicial pronouncements**, either through **interpreting a statute** or **by adding to common law.**
**_Case law_**
139
This school of **Jurisprudential** **thought** says "*law is a neutral command of government*."
**_Positive law_**
140
What are the primary **systems** of **ethical conduct**?
1) **_Duty based_**
2) **_Outcome based_**
140
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
141
A landowner has a ______ to anyone who comes on their land?
**_Duty_**
143
"Judge made law"
**_Common Law_**
144
Item of **property** that has become **attached** to land and is **treated as* *real property**?
**_Fixture_**
146
What does "*Res Ipsa Loquitur*" mean?
**_"The things speaks for itself"_**
147
What are **Judicial pronouncements**?
1) Legal statements **made by courts**
148
Held by the **owner** of the real estate on which it is found, **subject to the true owner's claims**.
**_Mislaid Property_**
149
What type of defence for negligence do we use today when someone is party responsible?
**_Comparitive._**
150
What the "Burden of proof" for 1) **Civil** 2) **Criminal law**
**_Civil_**- **Preponderence of evidence**
**_Criminal_**-**Beyond a resonable doubt**
151
**Diversity of Citizenship** has to have **how much** in controversy, monetarily?
**$75,000 or more**
152
What are **legislative** laws?
Laws that have been **passed by legislative bodies.**
153
This includes those laws that **impact the public** generally and employ the **power of government** over the **public**.
**_Public law_**
154
Before someone gets charged they are issued what?
**_an Indictment_**
155
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.
156
These are two distinct categories of **remedies** that can be obtained in a breach of contract situation. ?
1) **_Legal_**
2) **_Equitable_**
157
This doctrine **separates** the **federal government**, **state government**, and **each branch**
the "*Doctrine of Separation of Powers*"
158
If you want to show negligence you must show that you have a _______ to someone?
**_Duty_**
159
What is a "*Motion to dismiss*"?
When there is _**NO QUESTION OF LAW**._
160
Who can **bring the appeal**?
The **defendant** or the **plaintiff**
161
_ON EXAM_ "True or false? something can be a **crime** and a **tort**?
**_TRUE._**
162
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_**
163
What are the three major types of **Discovery**?
1) **_Interrogatories_**
2) **_Depositions_**
3) **_Request for production of documents_**
164
what is the meaning of "*Stare decisis*"?
**“_let the decision stand_.”**
165
What is the **legal term** for "*professional negligence*"?
**_Malpractice._**
166
A **gift** made **during life** is called?
**_*Inter Vivos* gift_**
167
"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_**
168
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**
169
This school of **Jurisprudential** **thought** says "higher law binds all human behavior."
**_Natural law_**
170
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
171
"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_**
