test 1 Flashcards

1
Q

4 main sources of contemporary law

A

common law

the constitution

statutes

administrative

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2
Q

common law

A

comes from england

stare decisis- let the decision stand

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3
Q

the debate of the constitution

A

antifederalist- want limited gov, strong state rights

federalists- want strong central fed gov; wrote federalists papers (Alexander Hamilton)

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4
Q

the constitution

A

establishes 3 branches of gov

establishes checks and balances

establishes fundamental rights (bill of rights are first 10 amendments to the constitution)

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5
Q

article 1

A

legislative branch

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6
Q

article 2

A

executive branch

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7
Q

article 3

A

courts

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8
Q

checks and balances

A

branches can check the power of the other branches

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9
Q

fundamental rights

A

found in the bill of rights and subsequent amendments to the constitution

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10
Q

criminal law burden of proof

A

beyond reasonable doubt

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11
Q

civil law burden of proof

A

preponderance of the evidence

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12
Q

the American system of gov rejects

A

the philosophy of utilitarianism

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13
Q

utilitarianism

A

what is best for the majority is best. the ends justify the means; constitution establishes fundamental rights for all citizens

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14
Q

federal statute that had major impact on employers and employees

A

title VII

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15
Q

title VII

A

makes discrimination on the basis of race sex and other classifications in employment illegal

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16
Q

rules for statutory interpretation

A

plain meaning rule

legislative history

public policy

17
Q

what gives fed gov the right to pass law regulating state commerce

A

commerce clause

18
Q

commerce clause

A

congress can pass any laws regulating commerce between the states

19
Q

dormant commerce clause

A

prevents states from passing laws preventing out of state companies from doing business in the state

20
Q

what happens when a state law conflicts with a federal law

A

the constitution supremacy clause says fed law trumps state law

21
Q

elements of tort of defamation

A

defamatory statement

falsity

communicated to a third party

injury

standard for press makes it harder to prove defamation (must show actual malice)- NYT vs Sullivan

22
Q

compensatory damages

A

designed to compensate individuals who are injured

23
Q

punitive damages

A

designed to punish bad actors and to deter wrongful conduct; must be based on fraud, faith, or gross negligence; there can be no punitive damages for mere negligence

24
Q

business torts elements

A

contract between plaintiff and a third party

defendant knew the contract

the defendant improperly included the third party to breach the contract

there was an injury to plaintiff

25
business torts examples
tortious interference with contracts
26
negligence claims must prove
duty breach causation damages
27
duty
plaintiff has to prove defendant owed them a duty
28
breach
prove defendant breached duty of reasonable care with some action (ex. Causing a car accident)
29
causation
prove the duty that was breached caused damages fact- what happened ACTUALLY caused damages Proximate cause- causation was foreseeable outcome of the breach of the duty
30
damages
Cannot get punitive damages in negligence cases
31
affirmative defenses to a negligence claim
contributory negligence comparative negligence
32
statute of limitations
state and federal statutes provide a deadline for when lawsuits must be filed; time begins when plaintiff knew or should have known about the claim
33
contributory negligence
defendant is negligent, but plaintiff is partially at fault
34
comparative negligence
committed by some other person that is also a proximate cause of the Plaintiff’s injuries.