Test 1 Flashcards
sources of law in the United States
- the constitution
- statutes
- common law
- administrative law
1st 10 amendments
bill of rights
supreme law of the land
the constitution
creates the 3 branches of government and gives each certain powers
body of the constitution
protects individual rights by limiting government’s power
amendments to constitution
article 1
legislative branch
article 2
executive branch
article 3
judicial branch
legislative branch
creation of new laws
congress responsible for where money comes from and where it is spent
bills
introduced by one house or the other
voted on and sent to the executive branch for signature
statutes
laws created by legislators
bills that have been voted on by both houses, submitted to the executive branch and signed into law
ordinances
statutes are the local level
statutes that have been enacted by municipalities and local government agencies
executive branch
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
executive orders
issued by the president to help the operation of the departments and agencies of the executive branch
administrative agencies
“4th branch of government”
agencies that help run the government
commerce clause
gives power to congress to regulate trade
“the power to regulate commerce with foreign nations, and among the several states and with indian tribes”
supremacy clause
any federal law over state laws, when dispute between them both
1st amendment
freedom of speech -dangerous speech not protected -commercial speech (advertising) freedom of religion freedom of press
departmental agencies
answer directly to president
IRS, ICE, FDA, CDC, PTO, OSHA, FBI, DEA
independent agencies
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
judicial branch
creates the supreme court
common law
created by judges, “making their own rules”
higher court decisions are always over/trump lower court decisions
these decisions carry the weight of law
stare decisis
lower courts follow precedent by higher courts
mediation
alternative dispute resolution
involves a neutral party who listens to the case and renders a recommendation
non-binding
arbitration
alternative dispute resolution
involves the use of a neutral third party who renders a binding decision
binding
supreme court justices
Chief justice roberts scalia thomas alito ginsburg bryer kagan sotomayor KENNEDY
precedent
lower courts much follow the legal rules created by higher courts
provides for greater consistency in the law
brown v. board of education shows that…
one supreme court can overrule prior supreme court cases
enumerated powers
those powers expressly allocated to the federal government
federalism
those powers not expressly allocated to the federal government are left to the individual states
interstate commerce
business affecting more than one state
intrastate commerce
business affecting only one state
the establishment clause
prohibits the government from either establishing a state religion or promoting one religion over another
the free exercise clause
prohibits the government from interfering with the free exercise of religion in the US
2nd amendment
right to bear arms
3rd amendment
government can’t keep a soldier in someone’s house without their permission
4th amendment
protects against unreasonable searches and seizures
government needs a search warrant
arrest warrant
government must show probable cause
5th amendment
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
due process clause
notice before government does something, full and impartial hearing
5th amendment: federal
14th amendment: state and local
the takings clause
government can take property through eminent domain: government must pay for compensation
6th amendment
right to an attorney
right to a jury in a criminal case
7th amendment
right to a trial by jury in a civil case
8th amendment
cruel and unusual punishment
no excessive bail
10th amendment
federalist government by reserving to the states any powers that are not expressly given to the federal government
13th amendment
prohibits slavery and indentured servitude
14th amendment
equal protection clause
due process clause: state and local
equal protection clause
a state cannot deny to any person within its jurisdiction the equal protection of the laws
18th amendment
banned the manufacturing, sale, and transport of alcohol
19th amendment
gives women the right to vote
21st amendment
alcohol is legal
26th amendment
lowers the voting age from 21 to 18
federal jurisdiction
federal question
diversity jurisdiction
-different states
-amount sued for over $75,000
civil case
plaintiff must prove the case by a preponderance of the evidence
mostly looking for money
criminal case
government must prove the case beyond a reasonable doubt
malum in se
criminal case
inherently evil
- lying
- cheating
- stealing
malum prohibitum
criminal case
doesn’t necessarily make you an evil person
- marijuana
- alcohol
felony
criminal law
punishable by more than one year in prison
lose the right to bear arms and vote
misdemeanor
criminal law
punishable by up to one year or less in prison
underage possession of alcohol, smoking marijuana, domestic violence
status offenses
criminal law
normally only punishable with a fine
contracts
civil law
an agreement between two or more parties that is enforceable in court
tort
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
unintentional tort/negligence
failure to act reasonably under the circumstances
must prove: duty breach injury proximate cause
damages
money
types of damages
compensatory
consequential
punitive
liquidated
equitable remedies
court orders someone to either do something or not to do something
- court orders
- injunctions
mainly looking for money
restraining orders
divorce
forgive debt
compensatory damages
money given to compensate for injuries
injuries both physical and financial
medical bills
lost wages
pain and suffering
loss of enjoyment of life
consequential damages
awarded for injuries that were forseeable to the parties
punitive damages
used to punish for willful
intentional tort
deliberately doing someone to someone else
defamation
assault and battery
destruction of property
duty
invitees: highest duty (also kids)
licensees
trespassers
breach
when you don’t do what you are supposed to do
breach leads to injury
proximate cause
injury has to be directly related to the breach
trial court
trial takes place
evidence is called
witnesses are called
appellate court
no new witnesses or evidence
did the judge mess up so much that there should be a new trial or throw out the trial
discovery
process where the parties exchange their evidence
promotes settlements
4 types: interrogatories depositions requests for production of documents requests for medical or physical documents
interrogatories
written questions
depositions
verbal questions
trial process
complaint
answer
exchange discovery
settlement or trial
personal jurisdiction
jurisdiction over a person
defendant is a resident of the state
defendant files an answer or response to the complaint
subject matter jurisdiction
authority of a particular court to hear a particular case
in rem jurisdiction
court’s control over property
long arm statute
allows a court to maintain jurisdiction over people or businesses located in other states
plaintiff
party filing the lawsuit
defendant
party against whom the lawsuit is filed
claim
a demand for a remedy, usually money, to compensate for a perceived wrong
class action lawsuit
a suit filed by multiple plaintiffs who have related claims
complaint
document filed by the plaintiff initiating a lawsuit which contains unproven allegations
complaint must contain
- why does it have jurisdiction?
- why does someone owe you money/what happened
- how much/why should they give you money
statute of limitations
must file law suit within a certain amount of time or else your claim dies
statute of limitations
oral contract
3 years
statute of limitations
written contract
5 years
statute of limitations
most torts
2 years
statute of limitations
criminal cases
5 years
summons
the document ordering the defendant to appear and defend the allegations made against him or her
service of process
delivery of the summons and complaint to the defendant
default judgement
plaintiff automatically wins if service of process has been obtained properly and the defendant does not respond within the time permitted
pleading
motion
for extension; extends time if complaint is really long and you need more time
pleading
demurrer
a response alleging that there is a fatal defect in the complaint
pleading
answer
formal response to the complaint
bench trial
case is decided by the judge if both parties waive a trial by jury
voir dire
examination of prospective jurors
charging the jury
telling the jury the law they must apply the facts to
- closing arguments
- jury deliberations
hung jury
occurs when less than the necessary number of jurors are in agreement
get a new trial and new jury
judgement
official decision of a judge about the rights and claims of each side in a lawsuit
judgement notwithstanding the verdict
order from judge reversing the jury’s verdict
remittiur
ruling that the amount of money awarded by the jury was unreasonable
appeal
complaint made by a litigant to a superior court that a trial judge committed an error
defamation
false statements that are deliberately made to harm the reputation or another
rumor that is harming someone
libel
written defamation
slander
verbal defamation
to prove defamation
- statement harms reputation
- statement must be false
- statement communicated to someone other than plaintiff
- injury to character or reputation of the plaintiff
false imprisonment
intentionally restraining or imprisoning a person against their will
battery
any harmful or otherwise offensive touching
doesnt actually have to be touching
poison
blowing smoke in someone’s face
throwing something
assault
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
chattel
personal property
fraud
deliberately lying or misleading to induce a person to part with money or property
commercial exploitation
unauthorized use of another person’s likeness or character for commercial purposes and financial gain
invitee
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
licensees
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
trespasser
person who enters a place without the permission of the owner or occupier
least duty owed
attractive nuisance
a potentially dangerous object or condition of exceptional interest to young people
swimming pools
large empty box
respondeat superior
employers are liable for the negligent acts of their employees when they are acting “in the scope of their environment”
independent contractors
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
non-delegable duties
duties that cannot be transferred (delegated) to another
premises safety
parking lot maintenance
pest control
gross negligence
total disregard for the safety and welfare of others
res ipsa loquitur
“things speak for itself”
shifts burden of proof to the defendant to prove that they were not negligent
very obvious negligent act by defendant
negligence per se
conduct that violates a law, regulation, or ordinance designed to protect the safety of the public
strict liability
imposes liability for resulting injuries even if the defendant took very precaution and was not negligent
blasting
wild animals
assumption of the risk
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
contributory negligence
plaintiff contributes to their own injury and they get nothing
comparative negligence
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
person
individual, corporation, partnership or other legal entity
insurance
contract in which one person, for a fee, agrees to guarantee another against a specific loss
insurer
person who issues the insurance policy
insured
person whose loss is the subject of the insurance policy
owner
person who enters into the insurance contract and pays the premiums
premium
consideration that the owner pays under the policy
beneficiary
person who receives the proceeds from the insurance policy
types of insurance
property life health disability automobile liability annuities flood
property insurance
covers physical damage to real estate, personal property, or inventory from causes such as fire, smoke, lightning, wind, riot, vandalism, or theft
term life insurance
simple, cheap, covers a particular time period
whole life insurance
straight life, more expensive but forces policyholder to save; part of the premium goes into savings, giving the policy cash value
annuities
reverse of life insurance; make payments until death
patient protection and affordable care act
obamacare
disability insurance
replaces the insured’s income if they become unable to work because of illness or injury
collision
car insurance
pays to repair or replace a car damaged in an accident
your car
comprehensive
car insurance
covers fire, theft, and vandalism
liability
car insurance
covers harm to other people or other property
usually required
their car, medical bills, things you are responsible for
uninsured motorist
car insurance
covers the insured and all passengers who are injured by another driver who does not have insurance
liability insurance
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
dram shop acts
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
crime
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
infractions
crimes that are neither a felony nor a misdemeanor that are only punishable by a fine
speeding
two elements must be proven for a person to be found guilty of most crimes:
mens rea
actus reus
mens rea
intent to do wrong
actus reus
wrongful act
exigent circumstances
exception to warrant
seeing something when you are in hot pursuit of someone else
search incident to arrest
exception to warrant
searching after arrest and finding something else
plain view
exception to warrant
anything they can see, “cocaine on car seat”
automobile exception
exception to warrant
“car smells like weed can be searched”
consent
exception to warrant
saying yes when they ask to search you
exclusionary rule
evidence that is obtained in violation of the constitution is inadmissible at trial
cannot be used against defendant
