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HM 203 > Test 1 > Flashcards

Test 1 Flashcards

1
Q

sources of law in the United States

A
  1. the constitution
  2. statutes
  3. common law
  4. administrative law
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2
Q

1st 10 amendments

A

bill of rights

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3
Q

supreme law of the land

A

the constitution

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4
Q

creates the 3 branches of government and gives each certain powers

A

body of the constitution

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5
Q

protects individual rights by limiting government’s power

A

amendments to constitution

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6
Q

article 1

A

legislative branch

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7
Q

article 2

A

executive branch

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8
Q

article 3

A

judicial branch

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9
Q

legislative branch

A

creation of new laws

congress responsible for where money comes from and where it is spent

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10
Q

bills

A

introduced by one house or the other

voted on and sent to the executive branch for signature

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11
Q

statutes

A

laws created by legislators

bills that have been voted on by both houses, submitted to the executive branch and signed into law

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12
Q

ordinances

A

statutes are the local level

statutes that have been enacted by municipalities and local government agencies

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13
Q

executive branch

A

enforcing laws

president can veto and can enter into treaties with foreign governments

veto can be overcome by a 2/3 majority vote of both houses

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14
Q

executive orders

A

issued by the president to help the operation of the departments and agencies of the executive branch

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15
Q

administrative agencies

A

“4th branch of government”

agencies that help run the government

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16
Q

commerce clause

A

gives power to congress to regulate trade

“the power to regulate commerce with foreign nations, and among the several states and with indian tribes”

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17
Q

supremacy clause

A

any federal law over state laws, when dispute between them both

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18
Q

1st amendment

A 
freedom of speech
-dangerous speech not protected
-commercial speech (advertising) 
freedom of religion
freedom of press
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19
Q

departmental agencies

A

answer directly to president

IRS, ICE, FDA, CDC, PTO, OSHA, FBI, DEA

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20
Q

independent agencies

A

do not answer directly to president

money is how to government controls them, take away funding if they aren’t doing what congress wants

CIA, EPA, FTC, FCC, SEC, SSA

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21
Q

judicial branch

A

creates the supreme court

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22
Q

common law

A

created by judges, “making their own rules”

higher court decisions are always over/trump lower court decisions

these decisions carry the weight of law

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23
Q

stare decisis

A

lower courts follow precedent by higher courts

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24
Q

mediation

A

alternative dispute resolution

involves a neutral party who listens to the case and renders a recommendation

non-binding

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25
Q

arbitration

A

alternative dispute resolution

involves the use of a neutral third party who renders a binding decision

binding

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26
Q

supreme court justices

A 
Chief justice roberts
scalia
thomas
alito
ginsburg
bryer
kagan
sotomayor
KENNEDY
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27
Q

precedent

A

lower courts much follow the legal rules created by higher courts

provides for greater consistency in the law

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28
Q

brown v. board of education shows that…

A

one supreme court can overrule prior supreme court cases

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29
Q

enumerated powers

A

those powers expressly allocated to the federal government

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30
Q

federalism

A

those powers not expressly allocated to the federal government are left to the individual states

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31
Q

interstate commerce

A

business affecting more than one state

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32
Q

intrastate commerce

A

business affecting only one state

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33
Q

the establishment clause

A

prohibits the government from either establishing a state religion or promoting one religion over another

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34
Q

the free exercise clause

A

prohibits the government from interfering with the free exercise of religion in the US

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35
Q

2nd amendment

A

right to bear arms

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36
Q

3rd amendment

A

government can’t keep a soldier in someone’s house without their permission

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37
Q

4th amendment

A

protects against unreasonable searches and seizures

government needs a search warrant

arrest warrant

government must show probable cause

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38
Q

5th amendment

A

due process clause: federal
self incrimination
double jeopardy
the takings clause

statements made to the police must be voluntary

miranda v. arizona/ miranda rights

to trigger miranda there must be custody and interrogation

right to remain silent

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39
Q

due process clause

A

notice before government does something, full and impartial hearing
5th amendment: federal
14th amendment: state and local

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40
Q

the takings clause

A

government can take property through eminent domain: government must pay for compensation

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41
Q

6th amendment

A

right to an attorney

right to a jury in a criminal case

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42
Q

7th amendment

A

right to a trial by jury in a civil case

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43
Q

8th amendment

A

cruel and unusual punishment

no excessive bail

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44
Q

10th amendment

A

federalist government by reserving to the states any powers that are not expressly given to the federal government

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45
Q

13th amendment

A

prohibits slavery and indentured servitude

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46
Q

14th amendment

A

equal protection clause

due process clause: state and local

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47
Q

equal protection clause

A

a state cannot deny to any person within its jurisdiction the equal protection of the laws

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48
Q

18th amendment

A

banned the manufacturing, sale, and transport of alcohol

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49
Q

19th amendment

A

gives women the right to vote

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50
Q

21st amendment

A

alcohol is legal

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51
Q

26th amendment

A

lowers the voting age from 21 to 18

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52
Q

federal jurisdiction

A

federal question
diversity jurisdiction
-different states
-amount sued for over $75,000

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53
Q

civil case

A

plaintiff must prove the case by a preponderance of the evidence

mostly looking for money

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54
Q

criminal case

A

government must prove the case beyond a reasonable doubt

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55
Q

malum in se

A

criminal case

inherently evil

  • lying
  • cheating
  • stealing
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56
Q

malum prohibitum

A

criminal case

doesn’t necessarily make you an evil person

  • marijuana
  • alcohol
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57
Q

felony

A

criminal law

punishable by more than one year in prison

lose the right to bear arms and vote

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58
Q

misdemeanor

A

criminal law

punishable by up to one year or less in prison

underage possession of alcohol, smoking marijuana, domestic violence

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59
Q

status offenses

A

criminal law

normally only punishable with a fine

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60
Q

contracts

A

civil law

an agreement between two or more parties that is enforceable in court

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61
Q

tort

A

civil law

violation of a legal duty to another
personal injury action, someone injures someone else or does something to their property, financial loss

negligence is the main type

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62
Q

unintentional tort/negligence

A

failure to act reasonably under the circumstances

must prove:
duty
breach
injury
proximate cause
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63
Q

damages

A

money

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64
Q

types of damages

A

compensatory
consequential
punitive
liquidated

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65
Q

equitable remedies

A

court orders someone to either do something or not to do something

  • court orders
  • injunctions

mainly looking for money

restraining orders
divorce
forgive debt

66
Q

compensatory damages

A

money given to compensate for injuries

injuries both physical and financial

medical bills
lost wages
pain and suffering
loss of enjoyment of life

67
Q

consequential damages

A

awarded for injuries that were forseeable to the parties

68
Q

punitive damages

A

used to punish for willful

69
Q

intentional tort

A

deliberately doing someone to someone else

defamation
assault and battery
destruction of property

70
Q

duty

A

invitees: highest duty (also kids)
licensees
trespassers

71
Q

breach

A

when you don’t do what you are supposed to do

breach leads to injury

72
Q

proximate cause

A

injury has to be directly related to the breach

73
Q

trial court

A

trial takes place
evidence is called
witnesses are called

74
Q

appellate court

A

no new witnesses or evidence

did the judge mess up so much that there should be a new trial or throw out the trial

75
Q

discovery

A

process where the parties exchange their evidence

promotes settlements

4 types:
interrogatories
depositions
requests for production of documents
requests for medical or physical documents
76
Q

interrogatories

A

written questions

77
Q

depositions

A

verbal questions

78
Q

trial process

A

complaint
answer
exchange discovery
settlement or trial

79
Q

personal jurisdiction

A

jurisdiction over a person

defendant is a resident of the state

defendant files an answer or response to the complaint

80
Q

subject matter jurisdiction

A

authority of a particular court to hear a particular case

81
Q

in rem jurisdiction

A

court’s control over property

82
Q

long arm statute

A

allows a court to maintain jurisdiction over people or businesses located in other states

83
Q

plaintiff

A

party filing the lawsuit

84
Q

defendant

A

party against whom the lawsuit is filed

85
Q

claim

A

a demand for a remedy, usually money, to compensate for a perceived wrong

86
Q

class action lawsuit

A

a suit filed by multiple plaintiffs who have related claims

87
Q

complaint

A

document filed by the plaintiff initiating a lawsuit which contains unproven allegations

88
Q

complaint must contain

A
  1. why does it have jurisdiction?
  2. why does someone owe you money/what happened
  3. how much/why should they give you money
89
Q

statute of limitations

A

must file law suit within a certain amount of time or else your claim dies

90
Q

statute of limitations

oral contract

A

3 years

91
Q

statute of limitations

written contract

A

5 years

92
Q

statute of limitations

most torts

A

2 years

93
Q

statute of limitations

criminal cases

A

5 years

94
Q

summons

A

the document ordering the defendant to appear and defend the allegations made against him or her

95
Q

service of process

A

delivery of the summons and complaint to the defendant

96
Q

default judgement

A

plaintiff automatically wins if service of process has been obtained properly and the defendant does not respond within the time permitted

97
Q

pleading

motion

A

for extension; extends time if complaint is really long and you need more time

98
Q

pleading

demurrer

A

a response alleging that there is a fatal defect in the complaint

99
Q

pleading

answer

A

formal response to the complaint

100
Q

bench trial

A

case is decided by the judge if both parties waive a trial by jury

101
Q

voir dire

A

examination of prospective jurors

102
Q

charging the jury

A

telling the jury the law they must apply the facts to

  • closing arguments
  • jury deliberations
103
Q

hung jury

A

occurs when less than the necessary number of jurors are in agreement

get a new trial and new jury

104
Q

judgement

A

official decision of a judge about the rights and claims of each side in a lawsuit

105
Q

judgement notwithstanding the verdict

A

order from judge reversing the jury’s verdict

106
Q

remittiur

A

ruling that the amount of money awarded by the jury was unreasonable

107
Q

appeal

A

complaint made by a litigant to a superior court that a trial judge committed an error

108
Q

defamation

A

false statements that are deliberately made to harm the reputation or another

rumor that is harming someone

109
Q

libel

A

written defamation

110
Q

slander

A

verbal defamation

111
Q

to prove defamation

A
  • statement harms reputation
  • statement must be false
  • statement communicated to someone other than plaintiff
  • injury to character or reputation of the plaintiff
112
Q

false imprisonment

A

intentionally restraining or imprisoning a person against their will

113
Q

battery

A

any harmful or otherwise offensive touching

doesnt actually have to be touching

poison
blowing smoke in someone’s face
throwing something

114
Q

assault

A

an attempted or uncompleted battery that places the plaintiff in fear of an imminent battery

fear of battery
throwing something and ducking out of the way, they still have fear

115
Q

chattel

A

personal property

116
Q

fraud

A

deliberately lying or misleading to induce a person to part with money or property

117
Q

commercial exploitation

A

unauthorized use of another person’s likeness or character for commercial purposes and financial gain

118
Q

invitee

A

someone who comes to an establishment for the purpose for which the business is open to the public

greatest duty of care

purpose is to buy goods or services from someone

necessary reasonable care encompasses both repair of and warning about the dangerous condition

119
Q

licensees

A

someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation

greater than trespasser less than invitee

not giving you money

electrician
delivery man

120
Q

trespasser

A

person who enters a place without the permission of the owner or occupier

least duty owed

121
Q

attractive nuisance

A

a potentially dangerous object or condition of exceptional interest to young people

swimming pools
large empty box

122
Q

respondeat superior

A

employers are liable for the negligent acts of their employees when they are acting “in the scope of their environment”

123
Q

independent contractors

A

someone who contracts to do one or more specific projects for someone else and maintains control of the method for doing the work

a company is generally not liable for the acts of independent contractors it hires

seeing if people are independent contractors: taxes, payment, hours

124
Q

non-delegable duties

A

duties that cannot be transferred (delegated) to another

premises safety
parking lot maintenance
pest control

125
Q

gross negligence

A

total disregard for the safety and welfare of others

126
Q

res ipsa loquitur

A

“things speak for itself”

shifts burden of proof to the defendant to prove that they were not negligent

very obvious negligent act by defendant

127
Q

negligence per se

A

conduct that violates a law, regulation, or ordinance designed to protect the safety of the public

128
Q

strict liability

A

imposes liability for resulting injuries even if the defendant took very precaution and was not negligent

blasting
wild animals

129
Q

assumption of the risk

A

to establish assumption of risk, the defendant must show that the plaintiff

  • had knowledge of the risk
  • understood the risk
  • had a choice of either avoiding or engaging
  • voluntarily took risk
130
Q

contributory negligence

A

plaintiff contributes to their own injury and they get nothing

131
Q

comparative negligence

A

the fault of both parties is allocated by the judge or jury and the award made to the plaintiff is reduced by the amount they are at fault

132
Q

person

A

individual, corporation, partnership or other legal entity

133
Q

insurance

A

contract in which one person, for a fee, agrees to guarantee another against a specific loss

134
Q

insurer

A

person who issues the insurance policy

135
Q

insured

A

person whose loss is the subject of the insurance policy

136
Q

owner

A

person who enters into the insurance contract and pays the premiums

137
Q

premium

A

consideration that the owner pays under the policy

138
Q

beneficiary

A

person who receives the proceeds from the insurance policy

139
Q

types of insurance

A 
property
life
health
disability
automobile
liability annuities 
flood
140
Q

property insurance

A

covers physical damage to real estate, personal property, or inventory from causes such as fire, smoke, lightning, wind, riot, vandalism, or theft

141
Q

term life insurance

A

simple, cheap, covers a particular time period

142
Q

whole life insurance

A

straight life, more expensive but forces policyholder to save; part of the premium goes into savings, giving the policy cash value

143
Q

annuities

A

reverse of life insurance; make payments until death

144
Q

patient protection and affordable care act

A

obamacare

145
Q

disability insurance

A

replaces the insured’s income if they become unable to work because of illness or injury

146
Q

collision

A

car insurance

pays to repair or replace a car damaged in an accident

your car

147
Q

comprehensive

A

car insurance

covers fire, theft, and vandalism

148
Q

liability

A

car insurance

covers harm to other people or other property

usually required

their car, medical bills, things you are responsible for

149
Q

uninsured motorist

A

car insurance

covers the insured and all passengers who are injured by another driver who does not have insurance

150
Q

liability insurance

A

financially protect the insured for any liability they incur by accidentally harming someone else

include:

  • injuries sustained on the insured’s property
  • injuries to another’s property caused by insured
  • professional malpractice/liability
  • product liability
151
Q

dram shop acts

A

impose civil liability on restaurants and bars for certain injuries resulting from illegal sales of alcohol

selling underage or to someone that is already intoxicated

do not protect drinker

only available to innocent 3rd parties

152
Q

crime

A

an act done by an individual in violation of the duties that they owe to society and for which the law provides that the wrongdoer must make amends to the public

153
Q

infractions

A

crimes that are neither a felony nor a misdemeanor that are only punishable by a fine

speeding

154
Q

two elements must be proven for a person to be found guilty of most crimes:

A

mens rea

actus reus

155
Q

mens rea

A

intent to do wrong

156
Q

actus reus

A

wrongful act

157
Q

exigent circumstances

A

exception to warrant

seeing something when you are in hot pursuit of someone else

158
Q

search incident to arrest

A

exception to warrant

searching after arrest and finding something else

159
Q

plain view

A

exception to warrant

anything they can see, “cocaine on car seat”

160
Q

automobile exception

A

exception to warrant

“car smells like weed can be searched”

161
Q

consent

A

exception to warrant

saying yes when they ask to search you

162
Q

exclusionary rule

A

evidence that is obtained in violation of the constitution is inadmissible at trial

cannot be used against defendant

HM 203 (2 decks)

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