Test 1 Flashcards
Law
Body of rules of action or conduct that has a binding legal force
Common Law
Primarily created by the judicial system “judge made law”. Based on precedents and judges issues opinions when deciding cases.
Precedent
A rule of law established in a court decision. Becomes a precedent when it reaches the Appellate courts and must be within same jurisdiction
Stare Decisis
“Stand by decision” - Provides for the adherence to precedent
Statutory Law
Written laws that covered parties must adhere
Separation of Powers
Established by constitution (Legislative/Executive/Judicial). Powers not given to federal gov’t are reserved to the states
Constitution
Supreme law of the land - Provides important guarantee of individual rights
Plaintiff
The party who files a complaint
Defendant
The party who a complaint is being filed against
Jurisdiction
Depends on Personal/Property and Subject Matter
Personal Jurisdiction
Jurisdiction over a person. A court must have jurisdiction over the parties in a lawsuit
Subject Matter Jurisdiction
Federal and state courts have jurisdictions over specific subjects (pg. 57)
Long Arm Jurisdiction
Give state personal jurisdiction over a non-resident defendant in a lawsuit as long as the defendant had the “minimum contact”
Exclusive Jurisdiction
Court has exclusive jurisdiction, usually defined in terms of subject matter
In Rem Jurisdiction
Jurisdiction of the property involved in the lawsuit
Quasi In Rem Jurisdiction
Quasi (Attachment) Plaintiff who obtains a judgement in one state tries to collect the judgement by attaching the property of another state
Concurrent Jurisdiction
When two or more courts have jurisdiction over specific case. Opens door for (Forum Shopping)
Conflict of Law
A set of procedural rules that determines which legal system and jurisdiction apply to a given dispute
Judicial Immunity
Protects judges and others employed by the judiciary to be in a lawsuit
Finder of Fact
person or group who determines the facts in a legal proceeding
Deep Pocket Theory
Go after the person with the most money
Complaint
Filed by plaintiff; includes parties, alleges facts and laws violated, contains “prayer of relief”
Answer
Defendant admits or denies the allegations contained in the complaint.
Default Judgement
When defendant does not respond to a complaint. Default judgement establishes the defendant’s liability
Statute of Limitations
period of time during which a plaintiff must bring a lawsuit against a defendant
Counterclaim
Defendant brings claim against plaintiff
Affirmative Defense
assertive answers by defendant (i.e. self defense/statute of limitations)
Deposition
Oral testimony given by a party or witness prior to trial
Interrogatory
Written questions submitted by one party to another
Voir Dire
Process of “jury selection”
Directed Verdict
When a case has no facts for jury to decide, it can go into a directed verdict
Judgment Notwithstanding the Verdict (j.n.o.v)
Judge overturns jury’s veridic if it finds a bias or jury misconduct
Compensatory Damages
an award “usually money” intended to compensate for loss or injury
Punitive Damages
Damages awarded to punish the defendant to deter from similar future conduct and set example to others
Nominal Damages
Damages awarded when no financial loss has resulted from breach. Usually $1 or small amount.
Equity
A doctrine that permits judges to make decisions based on fairness, equality, moral rights, and natural law
Specific Performance
a remedy that orders the breaching party to perform the acts promised in the contract
Injunction
A court order that prohibits a person from doing a certain act
Crime vs. Civil wrong
Crime - positive/negative act that violates a penal law.
Civil - breach of contract or true
Burden of Proof
Criminal - guilty beyond reasonable doubt
Civil - clear and convincing evidence
Criminal Classification
Felony- mala in se (inherently evil)
Misdemeanor- mala prohibita (prohibited by society)
Violations - punish by fine
Jury Decision in Criminal Case
Unanimous decision
If not unanimous, what is is called?
Hung Jury
Actus Reis
Guilty Act
Mens Res
Evil Intent (criminal intent)
Grand Jury
Group of judges who decide if a case should proceed to court - issues an indictment
Constitutional Safeguard to defendants (criminal)
5th Amendment - privilege against self incrimination/ right to a lawyer/ Miranda rights/ Attorney client confidentiality/ 8th amend against cruel and unusual punishment/ 6th amend - impartial jury/speedy trial
White Crimes
Forgery, Embezzlement, Self-incrimination
Commerce Clause
Authorizes the federal gov’t to regulate commerce with foreign nations, interstate, within Indian Tribes
Wickard v. Filburn
Gov’t decided the rights to control the amount of crop to be farmed for personal consumption as it also affected interstate commerce and pricing
State Law Interfere w/ Commerce
“States’ Police Power” intrastate is regulated by the state. Regulates business conduct
Constitution relating to Supremacy
U.S Constitution and federal treaties, laws, and regulations are the supreme law of the land
Freedom of Speech
Applies to business and is protected
Advertising
It is subject to time, place and manner restrictions
Constitutional Protection for Crimes
14th Amendment
Due Process - no person shall be deprived of “life, liberty, or property”
Equal Protection
Eminent Domain
Gov’t right to take private property for public use by state.
