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Terms Flashcards

1
Q

Law

A

a set of enforceable rules that regulates the conduct of individuals, businesses and other organizations within society

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2
Q

How does the law serve society?

A
  • keeps the peace (prevents conflict)
  • create a set of rules people can refer to
  • gives protected property rights
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3
Q

Liability

A

The state of being legally responsible (liable) for something, such as a debt or obligation.

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4
Q

2 major sources of American Law

A
  • Primary Source
  • Secondary Source
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5
Q

Primary source

A

a document that establishes the law on a particular issue; follow primary source first before moving on to secondary source

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6
Q

Example of Primary Sources

A
  • US Constitution and constitutions of various states
  • Statutory law
  • Administrative law
  • Case law
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7
Q

U.S. Constitution and constitutions of various states

A
  • creates the structure that all other law is based upon; if a law conflicts with the Constitution, the Constitution always wins
  • state constitutions can ADD more protections to US Constitution, but cannot conflict with it
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8
Q

Statutory Law

A

laws passed by US Congress, state legislatures, and local governing bodies

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9
Q

Administrative Law

A
  • regulations created by administrative agencies (ex. SEC, IRS, FDA)
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10
Q

Case Law pt 1

A
  • court decisions
  • in civil law countries (France, China, Italy) this type of primary source does not exist; courts do not produce primary sources
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11
Q

Secondary source

A

a publication that summarizes or interprets the law, such as legal encyclopedia, a legal treatise, or and article in a law review

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12
Q

Case Law

A
  • Case law consists of judicial interpretations of constitutional provisions, statutes and administrative regulations.
  • doctrines and principles announced in cases - governs all areas NOT covered by statutory law or administrative law.
  • Case law is part of the common law tradition.
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13
Q

Common Law tradition

A

Early English courts
- kings courts started after Norman conquest of 1066
- Established the common law- body of general legal principles applied throughout the English Empire
- Kings court used precedent to build the common law

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14
Q

As legislatures continue to enact laws today…

A

we begin to “erase” or update the common laws regarding the same decision. If legislation is passed it wins over common law.

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15
Q

Stare Decisis

A

“to stand on decided cases” (if there is a precedent, the courts follow that precedent)

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16
Q

Judges are obligated to follow the precedent within their jurisdicitions

A
  • a higher courts decision based on certain facts and law, is a binding authority on lower courts
  • courts may depart from the rule of precedents
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17
Q

Stare Decisis helps courts…

A

stay efficient and makes the law more stable, predictable, and durable

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18
Q

Remedy

A

means to enforce a right or compensate for injury to that right. Most common is money damages

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19
Q

Remedies at Law

A

in king’s courts, remedies were restricted to damages in either money or property

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20
Q

Remedies in equity

A
  • founded on notions of justice and fair dealing.
  • King’s chancellor or formal chancery courts does what is right: specific performance(ex. contracts), injunction (ex. to stop someone from encroaching on your property), rescission (ex. to end business relationship, to take apart).
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21
Q

Plaintiffs

A

Injured party initiating the lawsuit

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22
Q

Defendent

A

allegedly caused injury

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23
Q

Injunction

A

court telling one party to do something or NOT to do something

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24
Q

Have to classify between LEGAL or EQUITABLE remedies

A

can only file equitable remedies (injunction) if you can prove that the legal remedies (money and property) are NOT appropriate

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25
Q

Classifications of law

A
  • Substantive law
  • Procedural law
  • Civil law
  • Criminal law
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26
Q

Substantive law

A

all laws that define, describe, regulate and create legal rights and obligations

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27
Q

Procedural law

A

all laws that establish the methods of enforcing the rights established by substantive law

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28
Q

Civil Law

A

system of law derived from Roman law that is based on codified laws (rather than case precedents)
- Spells out the rights and duties that exist between persons and between persons and their governments.
- Object is to obtain a remedy to compensate injured party

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29
Q

Codified laws

A

laws that originate from one jurisdiction and is applied to other areas

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30
Q

Criminal Law

A
  • Branch of law that defines and punishes wrongful actions committed against the public
  • Concerned with wrongs committed against society for which society demands redress.
  • objective is to punish wrongdoer, and deter others from wrongdoing
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31
Q

Civil and criminal law can overlap

A

company contaminates ground water. Becomes criminal law if the company knew about it

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32
Q

Federal courts

A
  • derive their authority from Article III of the US constitution
  • Independent system of courts (not superior to state courts).
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33
Q

Federal courts include

A

US Supreme Court
US Court of Appeals
US District Court

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34
Q

US Supreme Court

A
  • 9 justices (currently 8)
  • may review any case decided by any of the federal courts of appeals, and has appellate authority over some cases decided in state courts
  • Appeals to the Supreme Court ( Writ of Certiorari)
  • Petitions granted by the Court ( Important constitutional issues or circuit splits)
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35
Q

US Courts of Appeals

A
  • 13 US CofA (also called circuit Courts)
  • CofA for the 13th Circuit is called the Federal Circuit
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36
Q

US District Courts

A
  • equivalent of state trial court of general jurisdiction
  • where initial trial happens
  • today there are 94 federal judicial districts
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37
Q

State Court

A

created by state legislature

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38
Q

State Court consists of

A
  • State Supreme Court.
  • State Courts of Appeals.
  • State Trial Courts of General Jurisdiction (State Administrative Agencies)
  • Local Trial Courts of Limited Jurisdiction
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39
Q

State court of Appeals

A
  • focus on questions of law
  • defer to the trial court’s findings of fact
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40
Q

State Trial Courts of General Jurisdiction

A
  • State Administrative Agencies
  • small claims courts are inferior to courts hearing civil cases with limited amounts in controversy (usually $5000)
41
Q

The origin of the US constitution

A
  • 1778: Continental Congress formed a confederal government and adopted the Articles of Confederation (created a federal congress)
  • the confederal governemnt was very weak and the states held most of the sovereign power
  • 1787: The Constitutional Convention agreed to a new US Constitution
  • State ratification (acceptance) of the Constitution was completed in 1788
  • the US Constitution was a political compromise between advocated of state sovereignty and central government
42
Q

The US Constitution:

A
  • GIVES power to the Federal Government
  • LIMITS the power of the government
  • PROTECTS US citizens
43
Q

Federal Form of Government

A
  • system whereby states form a union and sovereign power is divided between the central government and the member states
  • US Constitution set forth the sovereign power to be exercised by the central or federal government (ex. immigration and bankruptcy)
  • All other sovereign powers (not delegated) are “reserved to the States” (10th amendment)
44
Q

Two Major functions of the US Constitution

A
  • Separation of Powers
  • Protects individual rights by limiting the governments ability to restrict those rights
45
Q

Separation of Powers

A

created 3 branches of the federal government and allocated unique sovereign powers to these branches:
- The legislative Branch (makes laws): Senate and House of Representatives
- The Executive Branch (enforce laws): President, Vice President, and executive agencies (ex. Department of Energy)
- The Judicial Branch (interpret laws): Supreme court and Federal court

46
Q

Checks and Balances

A

the principle under which the powers of the national government are divided among three seperate branches (executive, legislative, judicial) each of which exercises a check on the actions of the others
ex. congress (Legislative branch) controls the presidential nominations (executive branch)
ex. the president (executive branch) can veto congressional legislation’s (legislative branch)

47
Q

The Commerce clause

A

The US Constitution gives congress the power to regulate Commerce with (1) foreign nations, (2) among states. and (3) with the Indian tribes
- greatest impact on business than any other constitutional provision

48
Q

Gibbons v. Ogden (1824)

A

Sup. Ct. C.J. John Marshall held that power to regulate interstate commerce is an exclusive power of the national government
- this power includes the power to regulate any intra-state commerce that substantially affects interstate commerce

49
Q

The commerce clause today

A
  • theoretically, the Commerce Clause applies to virtually all commercial transactions
50
Q

Regulatory Powers of the State

A

10th amendment reserves to the States all powers not expressly delegated to the national or federal government

51
Q

Police Powers

A

powers possessed by the states as part of their inherent sovereignty
- these powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare
- Constitutional basis for enacting numerous laws that regulate business activities (zoning, licensing, etc.)

52
Q

The Supremacy Clause

A

establishes that the US Constitution, treaties, federal laws, and federal regulations are the supreme (highest) law of the land (Article VI of US Constitution)

53
Q

Preemption

A

a doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws
- occurs when Congress chooses to act exclusively in a concurrent area, need congressional intent
- a valid federal statute or regulation will take precedent over a conflicting state or local law in the same general subject

54
Q

Bill of rights: 2nd major function of the US Constitution

A
  • the first Congress of the United states enacted 12 Amendments to the US constitution that limits governmental intrusion on individual rights
  • First 10 of these amendments known as the Bill of Rights, adopted by states in 1791
  • the bill of rights are not absolute, the government can pass laws to limit some of our rights
  • applies to state actors (not private)
55
Q

Freedom of Speech

A
  • Democratic governments flourish through robust participation by its citizens/residents
  • Free speech includes nonverbal expressions of belief, known as “symbolic speech”. includes gestures, movement, articles of clothing, and other forms of expressive conduct
  • expression (oral, written, or symbolic) is subject to “reasonable restrictions”
56
Q

Content-Neutral Laws

A
  • laws that regulate the (1) time, (2) manner, and (3) place, but not the content of speech
  • Upheld if governmental restriction aimed at combating some secondary societal problem (e.g. crime) AND not aimed at suppressing the expressive conduct or its message.
57
Q

Commonwealth v. Ora (2008)

A

state law upheld that banned public display of open and gross lewdness in situations in which there is an unsuspecting or unwilling audience

58
Q

Laws that Regulate the Content of Speech

A
  • upheld if laws that regulate the content of speech serve a compelling state interest AND are narrowly written to achieve that interest
59
Q

Free Speech: Corporate Political Speech

A
  • 1st amendment protects political speech by corporations
60
Q

Citizens United v. Federal Election Commission (2010):

A

State Court held that corporations may spend freely to support or oppose candidates for president or congress

61
Q

Free Speech: Commercial Speech

A
  • speech by business firms that involve only their commercial interests, such as advertising and marketing
62
Q

A restriction on commercial speech will be considered valid as long as it:

A
  • The law seeks to implement a substantial governmental interest;
  • The law directly advances that interest; and
  • The law goes no further than necessary to accomplish its objective
    NEED ALL 3 TO BE VALID
63
Q

Café Erotica v. Florida Dept. of Transportation (2003)

A
  • Nude dancing establishment denied permit to erect a billboard along a FL interstate highway.
  • FL appellate court held that law (restriction on placement of billboards because of highway beautification and safety) that prevented business from erecting a billboard was valid.
  • Applied
    1- highway viewification standards and safety
    2- law says you need a license for that billboard
    3- narrowly focused to that spot on the highway (doesnt say anything about other advertising)
64
Q

Offensive speech

A

speech that offends many members of society (but not obscene speech)
- government cannot forbid offensive speech, but can subject it to time, place, and manner restrictions

65
Q

Freedom of Speech: unprotected speech

A

Certain types of speech is not protected by the first amendment
- defamatory speech
- speech that violates criminal laws
- “Fighting words”
- Obscenity

66
Q

Defamatory Speech

A

speech that can cause defamation
- harms somone’s good reputation (applies to businesses and persons)
- Publicized to a 3rd party
- False factual statement

67
Q

Speech that violates criminal laws

A

inciting a riot, threatening speech, terroristic speech

68
Q

Fighting words

A

likely to provoke a hostile or violent response from an average person

69
Q

Obscenity

A

ex. sexual conduct in an offensive way, work that lacks artistic or literary values

70
Q

Freedom of religion

A

1st Amendment states that the government…
- may neither establish any religion (establishment clause)
- nor prohibit the free exercise of religious practices (free exercise clause)

71
Q

Freedom of religion: the establishment clause

A
  • Prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another
  • Government regulations that do not promote or place a significant burden on religion are constitutional even if they have some impact on religion
72
Q

Trunk v. City of San Diego

A
  • cross on private property that changed to federal property, court made them take the cross down
73
Q

Freedom of religion: the free exercise clause

A
  • prohibits the government from interfering with people’s religious practices or forms of worship
  • government regulations are only permitted if they have (1) compelling state interest for restricting religion AND (2) the restriction is the only way to further that interest
74
Q

Mitchell County v. Zimmerman (2012)

A
  • ordinance prohibiting steel cleats on the tires overturned due to a lack of evidence of compelling state interest
  • government wanted “road preservation” (interest) but restriction wasnt narrowly tailored and there are other harms to the roads not being regulated
75
Q

Holt v Hobbs

A
  • prisons wanted every inmate to shave their beards so they did not have to search them for contraband. Sued by inmates who did not want to shave their beards for religious purposes
  • courts agreed with the inmates - said it was unlikely there would be contraband in them and if there was they were easily searchable (restriction was not the only way to further interest)
76
Q

The Free Exercise clause: Public Welfare Exception

A

The government may regulate religious practices that work against public policy and the public welfare- an individuals religious beliefs may be subordinate to the governments interest in protecting the public

77
Q

Judicial review is the process through which the courts…

A
  • interpret and apply laws passed by the legislature (checks and balances) OR
  • Determine the constitutionality of acts by the legislature or the executive (federal and state)
78
Q

What is the source of the courts’ power of judicial review?

A

Marbury v. Madison (1803) - court ruled that the court has the ability to interpret the Constitution

79
Q

Judicial review is used when 1 of 2 things happen:

A
  • there is a circuit split
  • there is a Novel issue of Law (New Law)
80
Q

Circuit split

A

one area uses federal law to say something is illegal, and another area says it is legal; Courts will decide which it is

81
Q

Novel Issue of Law (New Law)

A

Court has to decide if a new law is constitutional to pass
- ex. Obamacare

82
Q

A plaintiff (or petitioner) must meet these requirements in order to file a lawsuit…

A
  • Jurisdiction
  • Venue
  • Standing to sue
    (NEED ALL 3)
83
Q

Jurisdiction

A
  • the authority of the court to hear and decide a case
  • must be in the right state and jurisdiction to sue. ex. state law issues are seen in state courts
84
Q

2 types of jurisdiction

A
  • jurisdiction over persons and property. Personal (“in personam”); or property (“in rem”), or long arm statute (a form of personal jurisdiction)
85
Q

personal (in personam) jurisdiction

A
  • could be a natural person (human) or a legal person (business)
  • in personam jurisdiction is power of court to compel parties to appear in court and litigate lawsuit. Plaintiff gives court jurisdiction over themselves by filling lawsuits. Court must obtain jurisdiction over defendants (respondents) usually done so through summons
86
Q

Long Arm Statute

A

gives court personal jurisdiction over non-resident persons and businesses located in another country or state. Pull someone back into the jurisdiction in which the conduct occured

87
Q

for Long arm statute to work non-residents must have some “minimum contacts” with the state:

A
  • committed a tort within the state
  • entered into a contract either in the state or contract affects the state
  • Conducted business in the state that caused injury to another person or property
88
Q

In Rem Jurisdiction

A
  • in rem jurisdiction is the power of the court to decide issues relating to property of lawsuit located within its geographic borders. This does not mean only land
89
Q

Jurisdiction over corporations

A
  • businesses such as corporations are considered legal persons
  • courts use the same principles to determine whether to exercise jurisdiction over a corporation
90
Q

Personal Jurisdiction over corporations

A
  • state in which it is incorporated, has its principal office, and is doing substantial business (ex. has a plant in that state)
  • Long arm statute for out-of-state corporations
91
Q

requirements for long arm statute to work on corporations

A
  • advertises or sells its products within the state
  • places its goods into the “Stream of commerce” with the intent that the goods be sold in the state
92
Q

3 things will be tested in order for the statute to work on corporations

A
  • minimum contact done with the state in order to be pulled back
  • nature and quality of the conduct/contact
  • interest of the state as the forum state
93
Q

Subject Matter jurisdiction

A
  • jurisdiction (the power of the court) over the subject matter of the lawsuit.
  • limitation on the types of cases a court can hear, General jurisdiction and Limited jurisdiction
94
Q

General Jurisdiction

A

unlimited jurisdiction- US District court, State Appellate court, State and federal supreme courts

95
Q

Limited jurisdiction

A

may be limited by the (1) subject of the lawsuit; (2) the sum in controversy; (3) whether the case involves a felony or misdemeanor; (4) whether the proceeding is a trial or an appeal
- Court of Claims, US Bankruptcy Court, District Courts

96
Q

Felony vs Misdemeanor

A

felony: drunk driving and someone dies => criminal division
misdemeanor: parking ticket => municipal court or justice of peace

97
Q

Original jurisdiction

A
  • occurs in the courts of the first instance
  • trial courts
98
Q

Sovereignty

A

The power of a state to do what is necessary to govern itself. Individual state sovereignty is determined by the U.S. Constitution.

99
Q
A

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