TEST 1 Flashcards
What is the name of the party that files the lawsuit?
plaintiff
what is the name of the party who is sued?
defendant
what is it called when the defendant makes claims against the plaintiff?
counterclaims
what is the name for a defendant who was not named in the complaint but is later joined?
third party defendant
what must a plaintiff establish in her complaint in order to have her case heard in court?
standing and jurisdiction
to establish standing, the plaintiff must establish…
personal stake in the resolution and case or controversy
what does case or controversy mean?
no advisory opinions, have to have parties who are disputing about something
what does a personal stake in the resolution mean?
you cannot sue on behalf of someone else. you must have injury to a really protected interest and it must be concrete and particularized
what is personal jurisdiction?
plaintiff has to show the court has power over the parties. the defendant has it when they file the claim
How is PJX obtained over an in-state criminal defendant?
they have to be arrested in the state
how is PJX obtained over an in-state civil defendant?
through being served with a summons of process
how is PJX over an out-of-state civil defendant?
long arm statute
How Is PJX obtained over an out-of-state criminal defendant?
Extradition: criminal defendant is brought back to stand trial where crime was committed
what is long arm statutes?
statute allowing a state to exercise personal jurisdiction over a non-resident defendant who has certain contacts with the state
To comport with the constitution the defendant must have?
minimum contacts with the state
what does minimum contacts mean?
-defendant committed the tort in state
- if the property is the subject to the lawsuit, owns property in the state
- transacted business
what is a class action lawsuit?
one or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have a similar claim
what has to happen before you gave a class action lawsuit?
must be commonality for the class to be certified
why was the Walmart v Dukes case not certified?
the claims were too diverse and lacked commonality
what are the pleadings in pretrials?
the complaint which is the document filed by the plaintiff at the beginning of the lawsuit
what is an answer?
defendants response to plaintiffs position
what is discovery?
procedures by which one party obtains info relevant to the case from the other party or third persons
what is the standard for discovery?
as long as the info sought will lead to evidence admissible during trial
what are the methods of discovery?
-interrogatory
-request for production of documents
-deposition
-request for admission
what is interrogatory ?
written question written by one party to another open ended
what is request for production of documents?
asking for relevant documents for the case from the other side
what is deposition?
sworn questioning of witnesses
what is request for admission?
ask a party to admit certain facts
what is law?
rules established by the state and backed up by enforcement
what is the rule of law?
the principle whereby all members of a society are considered equally subject to publicly disposed legal codes and processes
what is the United States ranking on the World Justice Project?
27
who is the last ranking on the World Justice Project?
Venezuela
what are the classifications of law?
-common
-civil
-public
-private
define stare decisis
let the decision stand
what does the civil law system focus on?
legislation
what is criminal law?
government brings suit to prove the wrong committed against society
what is civil law?
individual sues for damages or other appropriate relief
what is substantive law?
defines the legal relationship of people with other people or with the stae
what is procedural law?
method and means by which substantive law is made and administered
define opinions
written decisions of judges
define precedent
a prior judicial decision relied upon as an example of a rule of law
define subject matter jurisdiction
the power over the issues involved in the case
what does article III of the constitution establish?
federal judiciary
what do the federal courts have subject matter jurisdiction over?
-questions of federal law
- the United States as a party
-controversies among the states
- cases with diversity of citizenship
what is US v Windsor (2013) about?
held that the Defense of Marriage Act was a violation of the Due Process Clause of the 5th amendment
what is majority opinion?
written reasoning for the conclusion reached by the majority
what is concurring opinion?
agrees with the majority but for different reasons
what is plurality opinion?
concurring opinion joined by the greater number of judges when no majority opinion is reached
what is dissenting opinion?
disagrees with the conclusion of the majority
what are judges?
operate the courts and make decisions on the law itself
what are jurors?
finders of facts
what is a bench trial?
a trial without a jury
what is jurisdiction?
power of a court who hears a case
which Supreme Court decision announced the power of judicial review?
Marbury v Madison
what is judicial review?
the power of courts to review laws passed by the legislative body and to declare them unconstitutional and void
what are the components of the Constitution?
original framework and amendments
what is apart of the original framework?
separation of powers
establishment of federalism
establishment of procedure for ratification
what did the bill of rights accomplish?
safeguards of liberty
safeguards of justice
reserved powers
what articles are apart of separation of powers?
articles I, II, III
what is established under Article I?
the legislative branch
what is established under Article II?
the executive branch
what is established under Article III?
the federal judiciary
what is federalism?
the separation of powers between federal and state/local governments
What is the supremacy clause?
the constitution is the supreme law of the land
what is preemption?
the application of the supremacy clause
What is the commerce clause?
congress has the power to regulate commerce
what does “with foreign nations” mean?
vested exclusively in Congress/Federal government (ex: embargoes)
what does “among the several states”?
means commerce that passes across state lines and commerce that stays within a single state substantially affects interstate commerce
what is interstate commerce?
commerce that passes state lines
what is intrastate commerce?
commerce that stays within a single state
what does express preemption mean?
in the act of congress itself, states cannot regulate this topic
what does field preemption mean?
when the act itself doesn’t say the state cant regulate it but congress has regulated it so much that only the federal government can regulate that topic
what’s an example of field preemption?
nuclear safety
what’s an example of express preemption?
federal cigarette labeling act
what does some federal regulation mean?
state law that is not inconsistent or conflicting with federal regulation is permitted
what does no federal regulation mean?
state law that does not unduly burden interstate commerce is permitted
what is an example of no federal regulation?
divorce or family law
what is dormant commerce clause?
inferred from the Commerce Clause, states cannot enact legislation that UNDULY BURDENS interstate commerce
what is an example of the Dormant commerce clause?
City of Philadelphia v New Jersey (1977)
what is under the first amendment?
freedom of religion, speech and press
what is freedom of religion?
congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof
what is freedom of speech?
covers verbal and written communication and protects symbolic speech as well
what types of speech are not absolute?
unprotected speech, reasonable restrictions on speech, over breadth doctrine
what is unprotected speech?
defamation, threatening speech, “fighting words” and obscenity
what is reasonable restrictions on speech?
balance between government’s obligation to protects, and citizens exercise of rights
what is overbreadth doctrine?
governmental restrictions on expression must be narrowly drafted
what is commercial speech?
freedom of speech protects corporations and individual
when can the government limit commercial speech?
when compelling state interest is at stake
what is Brown v Entertainment Merchants Assoc, (2011) about?
A California law restricted the sale of violent video games to minors
what did the district court decides about Brown v Entertainment Merchants Assoc (2011)?
concluded that the act violated the First Amendment
What was the Supreme Courts decision on Brown v Entertainment Merchants Assoc. (2011)?
Supreme Court affirmed it and said the video game is a form of speech
what is freedom of press?
the press is accountable for what is printed and construed to prohibit prior restraints of publications
what is Near v Minnesota (2013) about?
Near published a newspaper that reported state officials doing elicit activities, he was then sued
what did the court rule for Near v Minnesota (1931)?
Minnesota was restraining publish which is a violation of the press clause
what is the 5th amendment?
eminent domain, “nor shall private property be taken for public use, without compensation”
what does taking mean in the 5th amendment?
when the government takes private property and takes ownership of it
what is public use in the 5th amendment?
turning property into schools, parks, city halls, etc.
what did the court hold for Kelo v City of New London (2005)?
the city’s taking of the land for economic development satisfies the “public use” requirement under the 5th amendment
what is just compensation?
fair market value
what is the 14th amendment?
due process of law
what is due process of law?
prevents our government from acting unreasonable and requires them to have fairness and decency
what is substantive due process?
requires the government to have justification for its actions
what is procedural due process?
requires proper notice and proper procedures
what is the incorporation doctrine?
due process clause has been used to incorporate the Bill of Rights and make provisions applicable to states
what is equal protection of the law?
the law should not treat people differently without a satisfactory reason
what are the questions for analyzing the equal protections claim?
what is the classification ?
what level of scrutiny applies?
does the government action meet that level of security?
what is under minimum rationality/ rational basis?
height, weight, age, marriage, testing
what is a case example of minimum rationality/ rational basis?
Mass Bd. of Retirement v Murgia – Court upheld a law that required police officers to retire at 50
what is under quasi-strict scrutiny?
gender
what is a case example of quasi-strict scrutiny?
Kelo v Virginia – court struck down law excluding women from a state military college
what is under strict scrutiny ?
race, national origin, legitimacy
what is a case example of strict scrutiny?
loving vs virgina – court struck down law forbidding interracial marriage
