Test 1 Flashcards
What is statutory law
Laws passed by congress state legislatives or local governing bodies
The sources of law are
U.s. Constitution State constitutions Statutory law Regulations created by administrative agencies Case and common law doctrines
What are breaches
Breaks or fails to perform the contract
Law provides
Stability
Predictability
Continuity
The law is
Enforceable governing relationships among individuals and between individuals and their society
What are secondary sources of law
Books and articles that summarize and clarify primary sources
I.e. Legal encyclopedias, treaties, articles in law reviews etc
Case law is
Judge made laws
What are damages
Amount given to a party whose legal interests have Been injured
The statute of limitations
Fixed time periods for different cases
A decision that furnished an example or authority for deciding subsequent cases involving similar legal principles
Precedent
Stare decisis
To stand on decided cases
What is a jurisdiction
Geographic area where courts have power to apply law
Any source of law a court must follow when deciding a case
Binding authority
Stare decisis makes law more
Efficient, stable, and predictable
When judges decide what law applies to a given dispute and then applies that law to the specific facts or circumstances
Legal reasoning
What is the Irac method
Issue
Rule of law
Application
What conclusion can be drawn
What is assualt
Act of wrongfully and intentionally making another person fearful of immediate physical harm
If you see u.s. In front it’s a federal court system
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U.s. Circuit court
U.s. Court of appeal
U.s. Supreme Court
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State trial court
Appellate courts
State Supreme Court
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Can anyone appeal
No
One can only appeal when there is a question of law
Can’t bring in new facts
Criminal
Burden of proof
Remedy
Found wrong
Beyond a reasonable doubt
Penalties
Guilty
Civil
Burden of proof
Remedy
Found wrong
Preponderance of the evidence
Damaged
Liable
Comparing facts in new case to that of old cases
Reasoning by analogy
Party appealing the case
Appellant
Party against whom the appeal is taken
Appalled
When all judges agree
Unanimous opinion
Opinion by majority of judges or justices
Majority opinion
Judge or justices agree w majority but for diferrent reasons
Concurring opinion
Presents views of those who disagree w the majority decision
Dissenting opinion
Per Curia, “by the court opinion”
Doesn’t say who authored the opinion
How many court systems are there
52
Role of judiciary
Interpret the law and apply the
What is jurisdiction
The power to speak the law over persons or property
Personal jurisdiction is
Over persons or business
In personam jurisdiction
Jurisdiction over the thing
I.e, over the property located in its boundaries
In rem jurisdiction
Long arm statutes
Jurisdiction over certain out of state defendants based on activities that took place in the state
-defendant must have minimum contact
Plaintiff can sue where the crime happens and where the defendant is from
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What is the rule of 4. For getting Ito Supreme Court
4 of the 9 justices must agree that the case can be heard in the us Supreme Court
What is venue
Where the trial will be held
What is a federal question
When plaintiff cause of action is in some part based on the us constitution, a treaty, or federal law
Describe diversity of citizenship
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What is jurisdiction where federal and state courts can hear a case
Concurrent jurisdiction
What is jurisdiction when cases can only be tried in state or federal courts
Exclusive jurisdiction
Federal courts have exclusive jurisdiction in
Federal crimes, bankruptcy, most patent and copy rights claims
State courts have exclusive jurisdiction over
Adoption and divorce
Venue is where
Incident occurred (criminal) or where parties involved reside(civil)
What is standing to sue
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
What is the writ of certiorari
Order issued by the Supreme Court to a lower court requiring the latter to send the record of the case for review
Powhatan is litigation
Process of resolving a dispute through the court system = expensive and time consuming
What’s ADR
Alternative dispute resolution
Types of ADR
Negotiation
Litigation
Mediation
Arbitration
Stages of litigation (3)
Pre trial
Trial
Post trial
Types of attorney fees
Fixed fees:I.e for drafting a will
Hourly fees
Contingency fees: usually between 25 and 40%
If loose nothing
What are pleadings
Complaints and answers that inform each party of the others claims and specify issues in the case
What happens w pleadings..l
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
The complaint contains
Facts showing court has subject matter and jurisdiction
Facts establishing basis for relief
Remedy plaintiff is seeking
Service of process is
Formally notifying the defendant of a lawsuit
A summons is
Notice requiring defendant to appear in court (must answer in specified time)
Default judge occurs when
No response from the defendant so the plaintiff automatically wins
The waiver of formal service of process
Provides defendant additional time to respond to the complaint
In an answer the defendant
Admits or denies allegations and may set forth defenses
Any allegations not denied said to be admitted
If all admitted judgement will be made
When one admits the truth and raises new facts showing they aren’t liable they are using
Affirmative defenses
When one Denys allegations and sets forth own claims those are
Counter claims
A procedural request submitted to the court by an attorney on behalf of her or his client
Motion
An affidavit is
Sworn statement by parties or witnesses
Judgment not with standing the verdict (JNOV)
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
Depositions
Interrogatories
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Obtaining info from the opposing party or witnesses prior to trial
Discovery
What is jury selection.. When jurors are questioned
Voir dire
What amendment guarantees the right to a jury trial
7th amendment
Order directing sheriff to seize and sell defendants non exempt assets
Writ of execution
What amendment says all powers not of the national gov is that of the states
The 10th amendment
Article 4 talks about how other states must respect one and others citizens and laws….
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The commerce clause
National gov. Regulates interstate commerce
Supreme law of the land
Article 4 of the commerce clause
Preemption
When federal law take precedence over local law
The 14th amendment says
No state shall deprive any person of life liberty or property with outhouse due process of law
Symbolic speech
Gestures , movement, articles of clothing
The establishment clause
Can’t have a state sponsored religion or favor one over another
The free excercise clause
One can practice any religion they want
What is a search warrant
Order from a judge or other public official authorizing the search or seizure
Probable cause
More justified than not
Warrants not required for highly regulated industries
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The 5th amendment talks about self incrimination
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1974 privacy act
People get access to their gov files
What are the basis for tort law
Wrongs and compensation
Tort law is to
Compensate those who suffered a loss or injury due to another persons wrongful act
Two types of damages
Special-quantifiable monetary losses
General-compensate non monetary aspects
What are punitive damages
They punish wrong doers and deter others from similar wrong doings (usually in intentional tort)
Reforms on torts
Limit amount of punitive and general damages
Capping contingency fees
Require losing party to pay plaintiff and defendants expenses
What the defense to intentional tort
Consent
Defense to negligence
Comparative negligence
The one committing the tort
Tort feasor
In an intentional tort it can be transferred from one target to another
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To intend something is to
Know with substantial certainty that specific consequences ward result from act
Assualt is
Any intentional and unexpected threat of immediate harmful offensive contact. -words that create a reasonably believable threat
-can occur even w no contact
Battery is
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
What is false imprisonment
An intentional confinement or restraint of another persons activities without justification
Intentional tort
What’s intentional infliction of emotional distress
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
What is defamation
The wrongful hurting of a persons good reputation
–intentional tort
Two types of defamation
Libel :permanent i.e. Written recorded
slander:oral
To est defamation a plantiff must prove
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
What’s not action all for defamation
Truths and opinions
What’s published mean
Someone other than the plantiff saw it
What damages won for libel
Do not have to prove was harmed award will be general damages
What damages won for slander
Special damages -must prove economic or monetary loss
Slander per se
I.e,
One has a disease
Committed improprieties while in profession
Committed/ imprisoned for serious crime
In haste are engaged in serious sexual misconduct
Defenses to defamation
Truth
Privileged speech
Public figure
Public figures concerning defamation
Must prove actual malice: statement made with either knowledge of its falsity or a reckless disregard to the truth
What 4 acts count for invasion of privacy
- Intrusion into an individuals affairs or seclusion
- False light:making up story and placing person in it maybe a pic
- Public disclosure of private facts
- Appropriation of identity:using someone’s identity without permission I.e. Pic, name
Invasion of privacy is what type of tort
Intentional tort
What is fraudulent misrepresentation aka fraud
Intentional decor for personal gain
What establishes fraudulent misrepresentation
- A misrepresentation of material facts or conditions with knowledge that they are false or w reckless disregard for the truth
- An intent to induce another party to rely on the misrepresentation
- A justifiable reliance on the misrepresentation by the party
- damages suffered as a result of that reliance
- A causal connection between the misrepresentation and the injury suffered
Puffery I.e. Sellers talk
I’m the best plumber
What is a wrongful interference w a business relationship
Actions undertaken w the intention of unlawfully driving competitions completely out of the market
Wrongful interference w a contractual relationship what 3 things must be established…
- A valued enforceable contract must exist between two parties
- third party must know this contract exists
- This third party must intentionally induce a party to the contract to breach the contract
Palsgraf v Long Island railroad
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Defense to wrongful interference
Prove interference was justified or permissible
What is real property
Land and things attached permanently to the land
Personal property
All other items I.e. Cash
What is tress pass to land
When a person…
- Enters onto above or below the surface of land that is owned by another
- Causes anything to enter onto the land owned by another
- Remains on land owned by another or permits anything to remain on it
Damages for tress pass to land
Trespasser liable for all injuries
Attractive nuisance doctrine
Owner can use reasonable force
Defenses to trespass to land
Show tress pass was warranted :have license or rescuing someone
Discuss a licensee in regard to tress pass to land
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Tress pass to personal property
Intentionally meddling which a possessory interest including barring access
Conversion
Any act that deprives an owner of personal property or of the use of that property without owners permission and without just cause
Being sold a stolen item
Failure to return property is
Conversion
What is disparagement of property
Slander of quality or slander of title
Defamation of product or property
Slander of quality
Publication of false info about another’s product alleging it is not what the seller claims
Slander of title
A publication falsely denies or casts doubt on another’s legal ownership of property resulting in financial lost to the property owner
What is negligence
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
Plantiff must prove what in negligence
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
Reasonable person standard
How duty is measured
Not how reasonable person would act but should act
Careful conscientious, even tempered and honest
The duty of landowners
The duty to warn business invitees of risks
What is professional negligence
Malpractice
For causation use
But for test ..but for the wrongful act the injury would not have occurred
What is negligence per se
If an individual violates a statue or an ordinance providing for a criminal penalty and that violation cause another to be injured
Good Samaritan statute
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Defenses for negligence
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
What is product liability
When a products defects cause injury or property damage to consumers users or bystanders
Strict liability applies to
Abnormally dangerous risks
And product liability
What an abnormally dangerous risks
Huey involve high risk of serious harm to persons or property that cannot be completely guarded against by the excersise of reasonable care
Def. of product liability
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
Due care must be practiced in..,
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
Proving of a contract not required
Can bring it even if I didn’t buy it
Fraudulent misrepresentation
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
Section 402A of the restatement of tort
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Burden of proof for strict liability
More likely or not the product was defective when they left the hand of the manufacturer
For strict liability
Determine where defect happened manufaure wholesale,etc
Respond eat superior
Employee sued
Prove employee negligent
Prove negligent during scope of employment
Reasonable person standard
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Market share liability.
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Defenses to product liability
Preemption Assumption of risks Product misuse Comparative negligence Commonly known dangers Knowledgable users Statutes of limitations and repose
