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B Law > Test 1 > Flashcards

Test 1 Flashcards

0
Q

What is statutory law

A

Laws passed by congress state legislatives or local governing bodies

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1
Q

The sources of law are

A 
U.s. Constitution
State constitutions
Statutory law
Regulations created by administrative agencies
Case and common law doctrines
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2
Q

What are breaches

A

Breaks or fails to perform the contract

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3
Q

Law provides

A

Stability
Predictability
Continuity

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4
Q

The law is

A

Enforceable governing relationships among individuals and between individuals and their society

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5
Q

What are secondary sources of law

A

Books and articles that summarize and clarify primary sources
I.e. Legal encyclopedias, treaties, articles in law reviews etc

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6
Q

Case law is

A

Judge made laws

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7
Q

What are damages

A

Amount given to a party whose legal interests have Been injured

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8
Q

The statute of limitations

A

Fixed time periods for different cases

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9
Q

A decision that furnished an example or authority for deciding subsequent cases involving similar legal principles

A

Precedent

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10
Q

Stare decisis

A

To stand on decided cases

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11
Q

What is a jurisdiction

A

Geographic area where courts have power to apply law

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12
Q

Any source of law a court must follow when deciding a case

A

Binding authority

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13
Q

Stare decisis makes law more

A

Efficient, stable, and predictable

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14
Q

When judges decide what law applies to a given dispute and then applies that law to the specific facts or circumstances

A

Legal reasoning

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15
Q

What is the Irac method

A

Issue
Rule of law
Application
What conclusion can be drawn

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16
Q

What is assualt

A

Act of wrongfully and intentionally making another person fearful of immediate physical harm

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17
Q

If you see u.s. In front it’s a federal court system

A

….

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18
Q

U.s. Circuit court
U.s. Court of appeal
U.s. Supreme Court

A

….

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19
Q

State trial court
Appellate courts
State Supreme Court

A

….

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20
Q

Can anyone appeal

A

No
One can only appeal when there is a question of law
Can’t bring in new facts

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21
Q

Criminal
Burden of proof
Remedy
Found wrong

A

Beyond a reasonable doubt
Penalties
Guilty

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22
Q

Civil
Burden of proof
Remedy
Found wrong

A

Preponderance of the evidence
Damaged
Liable

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23
Q

Comparing facts in new case to that of old cases

A

Reasoning by analogy

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24
Q

Party appealing the case

A

Appellant

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25
Q

Party against whom the appeal is taken

A

Appalled

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26
Q

When all judges agree

A

Unanimous opinion

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27
Q

Opinion by majority of judges or justices

A

Majority opinion

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28
Q

Judge or justices agree w majority but for diferrent reasons

A

Concurring opinion

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29
Q

Presents views of those who disagree w the majority decision

A

Dissenting opinion

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30
Q

Per Curia, “by the court opinion”

A

Doesn’t say who authored the opinion

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31
Q

How many court systems are there

A

52

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32
Q

Role of judiciary

A

Interpret the law and apply the

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33
Q

What is jurisdiction

A

The power to speak the law over persons or property

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34
Q

Personal jurisdiction is

Over persons or business

A

In personam jurisdiction

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35
Q

Jurisdiction over the thing

I.e, over the property located in its boundaries

A

In rem jurisdiction

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36
Q

Long arm statutes

A

Jurisdiction over certain out of state defendants based on activities that took place in the state
-defendant must have minimum contact

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37
Q

Plaintiff can sue where the crime happens and where the defendant is from

A

…

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38
Q

What is the rule of 4. For getting Ito Supreme Court

A

4 of the 9 justices must agree that the case can be heard in the us Supreme Court

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39
Q

What is venue

A

Where the trial will be held

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40
Q

What is a federal question

A

When plaintiff cause of action is in some part based on the us constitution, a treaty, or federal law

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41
Q

Describe diversity of citizenship

A

…l

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42
Q

What is jurisdiction where federal and state courts can hear a case

A

Concurrent jurisdiction

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43
Q

What is jurisdiction when cases can only be tried in state or federal courts

A

Exclusive jurisdiction

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44
Q

Federal courts have exclusive jurisdiction in

A

Federal crimes, bankruptcy, most patent and copy rights claims

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45
Q

State courts have exclusive jurisdiction over

A

Adoption and divorce

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46
Q

Venue is where

A

Incident occurred (criminal) or where parties involved reside(civil)

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47
Q

What is standing to sue

A

When party has legally protected and tangible interest at stake in the litigation
-party bringing suit must suffered from harm or be threatened by harm

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48
Q

What is the writ of certiorari

A

Order issued by the Supreme Court to a lower court requiring the latter to send the record of the case for review

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49
Q

Powhatan is litigation

A

Process of resolving a dispute through the court system = expensive and time consuming

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50
Q

What’s ADR

A

Alternative dispute resolution

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51
Q

Types of ADR

A

Negotiation
Litigation
Mediation
Arbitration

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52
Q

Stages of litigation (3)

A

Pre trial
Trial
Post trial

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53
Q

Types of attorney fees

A

Fixed fees:I.e for drafting a will
Hourly fees
Contingency fees: usually between 25 and 40%
If loose nothing

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54
Q

What are pleadings

A

Complaints and answers that inform each party of the others claims and specify issues in the case

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55
Q

What happens w pleadings..l

A

The aggrieved party the plaintiff files a complaint. In the complaint the plaintiff will file a substance of rights and talk about the body of law that gives her the right to sue. The body of law is torts.Defendant from there can file an answer

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56
Q

The complaint contains

A

Facts showing court has subject matter and jurisdiction
Facts establishing basis for relief
Remedy plaintiff is seeking

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57
Q

Service of process is

A

Formally notifying the defendant of a lawsuit

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58
Q

A summons is

A

Notice requiring defendant to appear in court (must answer in specified time)

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59
Q

Default judge occurs when

A

No response from the defendant so the plaintiff automatically wins

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60
Q

The waiver of formal service of process

A

Provides defendant additional time to respond to the complaint

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61
Q

In an answer the defendant

A

Admits or denies allegations and may set forth defenses
Any allegations not denied said to be admitted
If all admitted judgement will be made

62
Q

When one admits the truth and raises new facts showing they aren’t liable they are using

A

Affirmative defenses

63
Q

When one Denys allegations and sets forth own claims those are

A

Counter claims

64
Q

A procedural request submitted to the court by an attorney on behalf of her or his client

A

Motion

65
Q

An affidavit is

A

Sworn statement by parties or witnesses

66
Q

Judgment not with standing the verdict (JNOV)

A

End of trial motion Asking the judge to rule in favor ignoring what the jury had said
Granted only if jury’s verdict was unreasonable and erroneous

67
Q

Depositions

Interrogatories

A

..l

68
Q

Obtaining info from the opposing party or witnesses prior to trial

A

Discovery

69
Q

What is jury selection.. When jurors are questioned

A

Voir dire

70
Q

What amendment guarantees the right to a jury trial

A

7th amendment

71
Q

Order directing sheriff to seize and sell defendants non exempt assets

A

Writ of execution

72
Q

What amendment says all powers not of the national gov is that of the states

A

The 10th amendment

73
Q

Article 4 talks about how other states must respect one and others citizens and laws….

A

….l

74
Q

The commerce clause

A

National gov. Regulates interstate commerce

75
Q

Supreme law of the land

A

Article 4 of the commerce clause

76
Q

Preemption

A

When federal law take precedence over local law

77
Q

The 14th amendment says

A

No state shall deprive any person of life liberty or property with outhouse due process of law

78
Q

Symbolic speech

A

Gestures , movement, articles of clothing

79
Q

The establishment clause

A

Can’t have a state sponsored religion or favor one over another

80
Q

The free excercise clause

A

One can practice any religion they want

81
Q

What is a search warrant

A

Order from a judge or other public official authorizing the search or seizure

82
Q

Probable cause

A

More justified than not

83
Q

Warrants not required for highly regulated industries

A

…

84
Q

The 5th amendment talks about self incrimination

A

….

85
Q

1974 privacy act

A

People get access to their gov files

86
Q

What are the basis for tort law

A

Wrongs and compensation

87
Q

Tort law is to

A

Compensate those who suffered a loss or injury due to another persons wrongful act

88
Q

Two types of damages

A

Special-quantifiable monetary losses

General-compensate non monetary aspects

89
Q

What are punitive damages

A

They punish wrong doers and deter others from similar wrong doings (usually in intentional tort)

90
Q

Reforms on torts

A

Limit amount of punitive and general damages
Capping contingency fees
Require losing party to pay plaintiff and defendants expenses

91
Q

What the defense to intentional tort

A

Consent

92
Q

Defense to negligence

A

Comparative negligence

93
Q

The one committing the tort

A

Tort feasor

94
Q

In an intentional tort it can be transferred from one target to another

A

…

95
Q

To intend something is to

A

Know with substantial certainty that specific consequences ward result from act

96
Q

Assualt is

A

Any intentional and unexpected threat of immediate harmful offensive contact. -words that create a reasonably believable threat
-can occur even w no contact

97
Q

Battery is

A

Unexecused and harmful or offensive physical contact that is intentionally performed
Can involve any body part or thing attached to it
Think about reasonable person standard

98
Q

What is false imprisonment

A

An intentional confinement or restraint of another persons activities without justification
Intentional tort

99
Q

What’s intentional infliction of emotional distress

A

When extreme and outrageous conduct results in sever emotional distress to another
To be outrageous it’s usually repeated annoyances
This is limited by the first amendments freedom of speech
–intentional tort

100
Q

What is defamation

A

The wrongful hurting of a persons good reputation

–intentional tort

101
Q

Two types of defamation

A

Libel :permanent i.e. Written recorded

slander:oral

102
Q

To est defamation a plantiff must prove

A

1defendant made false statement of fact
2 statement about the plaintiff to harm plaintiff reputation
3statement was published
4 prove actual malice if plantiff is a public figure

103
Q

What’s not action all for defamation

A

Truths and opinions

104
Q

What’s published mean

A

Someone other than the plantiff saw it

105
Q

What damages won for libel

A

Do not have to prove was harmed award will be general damages

106
Q

What damages won for slander

A

Special damages -must prove economic or monetary loss

107
Q

Slander per se

A

I.e,
One has a disease
Committed improprieties while in profession
Committed/ imprisoned for serious crime
In haste are engaged in serious sexual misconduct

108
Q

Defenses to defamation

A

Truth
Privileged speech
Public figure

109
Q

Public figures concerning defamation

A

Must prove actual malice: statement made with either knowledge of its falsity or a reckless disregard to the truth

110
Q

What 4 acts count for invasion of privacy

A
  1. Intrusion into an individuals affairs or seclusion
  2. False light:making up story and placing person in it maybe a pic
  3. Public disclosure of private facts
  4. Appropriation of identity:using someone’s identity without permission I.e. Pic, name
111
Q

Invasion of privacy is what type of tort

A

Intentional tort

112
Q

What is fraudulent misrepresentation aka fraud

A

Intentional decor for personal gain

113
Q

What establishes fraudulent misrepresentation

A
  1. A misrepresentation of material facts or conditions with knowledge that they are false or w reckless disregard for the truth
  2. An intent to induce another party to rely on the misrepresentation
  3. A justifiable reliance on the misrepresentation by the party
  4. damages suffered as a result of that reliance
  5. A causal connection between the misrepresentation and the injury suffered
114
Q

Puffery I.e. Sellers talk

A

I’m the best plumber

115
Q

What is a wrongful interference w a business relationship

A

Actions undertaken w the intention of unlawfully driving competitions completely out of the market

116
Q

Wrongful interference w a contractual relationship what 3 things must be established…

A
  1. A valued enforceable contract must exist between two parties
  2. third party must know this contract exists
  3. This third party must intentionally induce a party to the contract to breach the contract
117
Q

Palsgraf v Long Island railroad

A

…

118
Q

Defense to wrongful interference

A

Prove interference was justified or permissible

119
Q

What is real property

A

Land and things attached permanently to the land

120
Q

Personal property

A

All other items I.e. Cash

121
Q

What is tress pass to land

When a person…

A
  1. Enters onto above or below the surface of land that is owned by another
  2. Causes anything to enter onto the land owned by another
  3. Remains on land owned by another or permits anything to remain on it
122
Q

Damages for tress pass to land

A

Trespasser liable for all injuries
Attractive nuisance doctrine
Owner can use reasonable force

123
Q

Defenses to trespass to land

A

Show tress pass was warranted :have license or rescuing someone

124
Q

Discuss a licensee in regard to tress pass to land

A

…

125
Q

Tress pass to personal property

A

Intentionally meddling which a possessory interest including barring access

126
Q

Conversion

A

Any act that deprives an owner of personal property or of the use of that property without owners permission and without just cause

127
Q

Being sold a stolen item

Failure to return property is

A

Conversion

128
Q

What is disparagement of property

A

Slander of quality or slander of title

Defamation of product or property

129
Q

Slander of quality

A

Publication of false info about another’s product alleging it is not what the seller claims

130
Q

Slander of title

A

A publication falsely denies or casts doubt on another’s legal ownership of property resulting in financial lost to the property owner

131
Q

What is negligence

A

When someone suffers injury because of another’s failure to live up to a required duty of care
If no risk created not negligence
Risk must be foreseeable

132
Q

Plantiff must prove what in negligence

A

Duty-the defendant owned a duty of care to the plantiff
Breach-the defendant breached the duty
causation -the defendant breach caused the plantifss injury
damages -the plantiff suffered a legally recognizable injury

133
Q

Reasonable person standard

A

How duty is measured
Not how reasonable person would act but should act
Careful conscientious, even tempered and honest

134
Q

The duty of landowners

A

The duty to warn business invitees of risks

135
Q

What is professional negligence

A

Malpractice

136
Q

For causation use

A

But for test ..but for the wrongful act the injury would not have occurred

137
Q

What is negligence per se

A

If an individual violates a statue or an ordinance providing for a criminal penalty and that violation cause another to be injured

138
Q

Good Samaritan statute

A

…

139
Q

Defenses for negligence

A 
Assumption of the risks 
Superseding cause 
Contributory negligence
Comparative negligence 
-some state have pure where hey get %
-some states 50% rule if plantif 50% or more they get nothing
140
Q

What is product liability

A

When a products defects cause injury or property damage to consumers users or bystanders

141
Q

Strict liability applies to

A

Abnormally dangerous risks

And product liability

142
Q

What an abnormally dangerous risks

A

Huey involve high risk of serious harm to persons or property that cannot be completely guarded against by the excersise of reasonable care

143
Q

Def. of product liability

A

Those who make sell or lease goods can be held liable for physical harm or property damage caused by those goods to a consumer user or bystander

144
Q

Due care must be practiced in..,

A

Designing the product
Selecting materials
Using the appropriate production process
Assembling and testing the product
Placing adequate warning and label signs
Inspecting and testing any purchased components of the product

145
Q

Proving of a contract not required

A

Can bring it even if I didn’t buy it

146
Q

Fraudulent misrepresentation

A

Must be material fact
Seller must have intended to induce the buyers reliance on the mis rep
Buyer must have relied on the mis rep

147
Q

Section 402A of the restatement of tort

A

….

148
Q

Burden of proof for strict liability

A

More likely or not the product was defective when they left the hand of the manufacturer

149
Q

For strict liability

A

Determine where defect happened manufaure wholesale,etc

150
Q

Respond eat superior

A

Employee sued

151
Q

Prove employee negligent
Prove negligent during scope of employment
Reasonable person standard

A

….

152
Q

Market share liability.

A

….

153
Q

Defenses to product liability

A 
Preemption 
Assumption of risks 
Product misuse
Comparative negligence 
Commonly known dangers 
Knowledgable users 
Statutes of limitations and repose

B Law (2 decks)

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