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Paralegal Exam Review > The United States Legal System > Flashcards

The United States Legal System Flashcards

1
Q

What is United States law based primarily on?

A

English common law, a system in which laws develop through the courts by case decisions.

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2
Q

What is the basis of common law?

A

The concept of precedent through the doctrine of stare decisis.

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3
Q

What is the doctrine of stare decisis?

A

The proposition that when an issue has been previously considered by a court and a ruling has been issued, the court will defer to its previous decision.

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4
Q

What is a constitution?

A

The fundamental principles or precedents of a nation or state which determine the powers and duties of the government and guarantee certain rights to the people subject to it. They may be either written or unwritten. Constitutions are at the top of the legal hierarchy and all other forms of law must conform to it.

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5
Q

What rights/protections are in Amendment 1 of the Bill of Rights?

A
  • Freedom of speech
  • Freedom of the press
  • Freedom of religion
  • Freedom of assembly
  • Right to petition the government
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6
Q

What rights/protections are in Amendment 2 to the Bill of Rights?

A

-Right to bear arms

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7
Q

What rights/protections are in Amendment 3 to the Bill of Rights?

A

-Protection against housing soldiers in civilian homes

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8
Q

What rights/protections are in Amendment 4 to the Bill of Rights?

A
  • Protection against unreasonable search and seizure

- Protection against the issuing of warrants without probable cause

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9
Q

What rights/protections are in Amendment 5 to the Bill of Rights?

A
  • Protection against trial without indictment
  • Protection against double jeopardy
  • Protection against self-incrimination
  • Protection against property seizure
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10
Q

What rights/protections are in Amendment 6 to the Bill of Rights?

A
  • Right to speedy trial
  • Right to be informed of charges
  • Right to be confronted by witnesses
  • Right to call witnesses
  • Right to legal counsel
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11
Q

What rights/protections are in Amendment 7 to the Bill of Rights?

A

-Right to trial by jury

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12
Q

What rights/protections are in Amendment 8 to the Bill of Rights?

A
  • Protection against excessive bail
  • Protection against excessive fines
  • Protection against cruel and unusual punishment
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13
Q

What rights/protections are in Amendment 9 to the Bill of Rights?

A

Rights granted in Constitution shall not infringe other rights

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14
Q

What rights/protections are in Amendment 10 to the Bill of Rights?

A

-Powers not granted to the Federal Government in the Constitution belong to the states and people

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15
Q

What is the Supremacy Clause?

A

Provision in Article VI of the U.S. Constitution which provides that federal law is the supreme law of the land. Judges in every state must follow the Constitution, laws and treaties of the federal government in matters that are directly or indirectly within the federal government’s control.

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16
Q

What is the doctrine of federal preemption?

A

A doctrine which gives effect to the Supremacy Clause and holds that state regulation is precluded or invalid by federal regulation in three situations:

  • Congress expressly states its intent to preempt state regulation
  • State law is inconsistent with federal law, even though no express preemption has been made by Congress
  • Congress enacts a comprehensive legislative scheme which sufficiently occupies a field so that it’s reasonable to infer that it left no room for the states to supplement federal law
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17
Q

Which enumerated powers are specifically delegated to the federal government?

A

-Taxes, defense, borrow money, regulate commerce, naturalization, coin money, counterfeiting punishment, post offices, promote science & arts, constitute tribunals, high seas piracy punishment, declare war, raise & support armies, provide & maintain navy, call forth militia, make all laws for carrying into execution the foregoing powers

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18
Q

What are the three branches of government and their powers?

A
  • Legislative Branch (Congress - House of Representatives [# based on population] and Senate [2 per state]) - Congress: enact laws, raise and appropriate funds, declare war, and impeach officials from the executive and judicial branches; Senate: provide advice and consent to the President on appointments of judges, ambassadors and important executive officers, ratify treaties
  • Executive Branch (President & VP [elected through Electoral College], Cabinet, Executive Departments, Federal Agencies) - President: sign or veto legislation, issue executive orders, presidential memos and proclamations, nominate judges to the federal court system, subject to consent of Senate; Executive Branch - foreign policy, conducting diplomacy, appointing ambassadors
  • Judicial Branch (Supreme Court and inferior Courts [as Congress ordains and establishes]) - judicial review, determine constitutionality of executive and legislative acts
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19
Q

What is the guarantee clause?

A

Ensures that all states must operate under the same basic republican governmental philosophy, guarantees to every state in the Union a republican form of government.

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20
Q

How are state governments established?

A

The 10th Amendment of the Bill of Rights provides that powers which are not delegated to the federal government and are not prohibited by the Constitution are reserved to the states respectively or to the people.

States set up their own governmental structure, which are authorized by their own constitutions, which are often modeled on the U.S. Constitution and outline the structure of government, establish bills or rights and create the legislative, executive and judicial branches of the state’s government.

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21
Q

Which powers are exclusive to the federal government and the state government, and which powers are concurrent to both?

A
  • Exclusive Federal Powers: declare war, raise armies, conduct foreign affairs, regulate mail, regulate interstate and foreign commerce, coin money, establish rules of naturalization
  • Exclusive State Powers: provide for public safety, health and welfare, conduct elections, establish local governments, maintain militia, regulate intrastate commerce, ratify constitutional amendments
  • Concurrent Powers: lawmaking and enforcement, taxation, borrow money, establish courts, eminent domain, charter banks
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22
Q

What are the sources of law?

A
  • Primary and secondary sources
  • Constitutions
  • Statutes
  • Case Law
  • Stare Decisis and Precedent
  • Mandatory and Persuasive Authority
  • Court Rulings
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23
Q

What are primary and secondary sources?

A
  • Primary Sources = federal and state constitutions, statutory law from Congress and state legislatures, local laws and ordinances, common law and case law (provide first-hand, original information from bodies or individuals with legitimate law creating authority)
  • Secondary Sources = analysis or reviews or the law by legal scholars or indexes and finding tools used to assist in researching the law (not first-hand sources with binding authority)
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24
Q

What is the U.S. Constitution?

A

Written document that outlines the powers of the federal and state governments and the relationships between the branches of government in the federal system. The supreme law of the land with precedence over state law and state constitutions

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25
Q

What are statutes?

A

Codified body of law containing specific acts or statutes passed by the legislature. They are general in nature and reflect general public policy - it is the court’s job to interpret the meaning and application of specific statute provisions.

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26
Q

What is case law?

A

Judicial decisions, a source of substantive law and court opinions reflect the common law as well as interpretations of constitutional provisions, statutes, and administrative rules.

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27
Q

What are stare decisis and precedent?

A
  • Stare decisis = to stand by things decided, courts look to past judicial opinions involving similar issues to guide their decisions in later cases
  • Precedent = past judicial opinions
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28
Q

What are mandatory and persuasive authority?

A
  • Mandatory Authority = cases which lower court must follow when issued by a higher court in the same court system or by the U.S. Supreme Court
  • Persuasive Authority = cases from other jurisdictions which may be used to support a court’s conculsions
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29
Q

What are court rules?

A

Govern the conduct of business in the courts systems and include time limitations, pleadings, and other procedural requirements.

30
Q

What is Administrative Law?

A

Body of law and legal principles dealing with creation, administration and regulation of federal, state and local governmental agencies.

Not specifically provided for in the Constitution - rulemaking authority comes from powers granted by Congress, state legislatures or municipal entities through statutory laws or ordinances.

31
Q

What does the Administrative Procedure Act (APA) of 1947 govern?

A

Process by which administrative agencies create and enact regulations

32
Q

What are Quasi-Legislative, Quasi-Executive, and Quasi-Judicial Functions?

A

Quasi-Legislative = Administrative agencies’ functions for the development and issuance of regulations (follow specific procedural steps in adopting and issuing regulations - public notice, public comment)

Quasi-Executive = Administrative agencies’ functions in enforcing regulations they have passed (investigating complaints and identifying conduct they deem violates regulations, issue citations)

Quasi-Judicial = Administrative agencies’ functions in resolving disputed claims and examining evidentiary findings to reach binding decisions (subpoena witnesses, take remedial steps)

33
Q

What is jurisdiction?

A

Authority of a court to hear and decide a specific action.

34
Q

What is personal jurisdiction?

A

Geographical - authority of a court to hear and decide a dispute involving the particular parties before it (parties who reside or do business in a particular country, state, district, etc.).

35
Q

What is subject matter jurisdiction?

A

Authority of a court to hear and decide a particular dispute before it.

36
Q

What is original jurisdiction?

A

Authority of a court to hear and decide a case in the first instance.

37
Q

What is appellate jurisdiction?

A

Authority of a court to review a prior decision decided by a lower court or tribunal.

38
Q

What is in rem action?

A

Lawsuit or legal action directed towards property rather than a particular person - jurisdiction is determined by the property’s location and must be brought in court with jurisdiction over that location. Judgements are enforced upon the property, not a person.

39
Q

What is quasi in rem action?

A

Legal action based on property of a person absent from the jurisdiction. Courts use in rem to compel a litigant over whom the court has no personal jurisdiction to appear in court by attaching the property and litigants must submit to the court’s jurisdiction in order to get the litigant’s property back.

40
Q

What are federal court and state court jurisdiction?

A

State courts have broad jurisdiction over state law matters and exercise concurrent jurisdiction with federal courts in some matters

Federal court jurisdiction is limited to cases provided for by the Constitution or specifically authorized by Congress including:

  • cases involving Constitution and federal law violations (“federal question”)
  • cases in which U.S. is a party
  • cases between citizens from different states when the amount in controversy exceeds $75,000 (“diversity jurisdiction”)
  • Cases dealing with bankruptcy, admiralty and maritime claims, antitrust, federal crimes, patent disputes and copyright disputes
41
Q

What is Venue?

A

The proper or possible location for a lawsuit to proceed - purpose is to ensure all possible fairness and convenience for the parties and can be changed in the interest of justice (the place where the case should be heard).

42
Q

What is Alternative Dispute Resolution?

A

Process that can be used to resolve conflicts or claims without having to go to court.

43
Q

What is negotiation?

A

Process where parties engage in good faith discussions of their disputes with the goal of coming to a mutually agreeable resolution.

44
Q

What is Case Evaluation?

A

Non-binding process where parties present facts and issues are determined by experienced neutral case evaluator.

45
Q

What is Mediation?

A

Private process where neutral third party called a mediator assists parties in discussing and trying to resolve their disputes. May be court ordered but considered voluntary because parties aren’t required to reach an agreement.

46
Q

What is Arbitration?

A

Private process where parties agree that an impartial intermediary chosen by the parties can decide about a dispute after receiving evidence and hearing arguments. Parties agree to abide by arbitrator’s resolution. Decision may be binding or non-binding.

47
Q

What is a mini-trial?

A

Settlement process where the parties present summarized versions of their case to a neutral advisor and representatives from each side who have authority to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor may serve as a mediator and issue a non-binding opinion as to the likely outcome in court.

48
Q 
United States law is primarily based on:
A - The Code Napoleon
B - The United Nations Charter
C - English Common Law
D - Colonial Charters
A

C - English Common Law

49
Q 
Which doctrine stands for the proposition that prior rulings of a court serve as precedent for future decisions?
A - Res ipsa loquitur
B - Trespass quare clasum fregit
C - Act of state
D - Stare decisis
A

D - Stare decisis

50
Q 
Which was not a right delineated in the Bill of Rights?
A - Right to free speech
B - Right to bear arms
C - Right to safe housing
D - Right to trial by jury
A

C - Right to safe housing

51
Q 
What doctrine maintains that state laws that interfere with federal laws are invalid pursuant to the supremacy clause?
A - States' Rights
B - Preemption
C - War Making
D - Sovereign Immunity
A

B - Preemption

52
Q 
Which is not one of the three branches of government in the federal government?
A - Legislative branch
B - Administrative branch
C - Executive branch
D - Judicial branch
A

B - Administrative branch

53
Q

Congress may override a presidential veto of legislation.
A - True
B - False

A

A - True

54
Q 
The regular term of office for U.S. Senators is:
A - Ten years
B - Two years
C - Four years
D - Six years
A

D - Six years

55
Q 
Members of the U.S. Supreme Court serve terms of:
A - Five years
B - Ten years
C - Twenty-five years
D - Lifetime
A

D - Lifetime

56
Q 
The regular term of office for House of Representative members is:
A - One year
B - Two years
C - Five years
D - Six years
A

B - Two years

57
Q 
The regular term of office for the U.S. President is:
A - Four years
B - Six years
C - Eight years
D - Ten years
A

A - Four years

58
Q 
Presidents of the U.S. are elected by which method:
A - The Electoral College
B - Lottery
C - Popular vote
D - A vote of each state legislature
A

A - The Electoral College

59
Q 
What is the source of the U.S. Supreme Court's power of judicial review?
A - The Declaration of Independence
B - Marbury v. Madison
C - Gideon v. Wainwright
D - English common law
A

B - Marbury v. Madison

60
Q 
Which branch of government is constitutionally responsible for enacting laws?
A - Legislative 
B - Executive
C - Department of Agriculture
D - Judicial
A

A - Legislative

61
Q 
Which branch of government is constitutionally responsible for implementing laws?
A - Legislative
B - Executive
C - Judicial
D - Department of Defense
A

B - Executive

62
Q 
Which branch of government is responsible for interpreting the Constitution?
A - Legislative
B - Department of Agriculture
C - Executive
D - Judicial
A

D - Judicial

63
Q 
Which is not a concurrent power which can be exercised by both the federal and state governments?
A - Taxation
B - Establish courts
C - Eminent domain
D - Declare war
A

D - Declare war

64
Q 
Which is not a primary source of law?
A - Constitutions
B - Legal digests
C - Statutes
D - Case law
A

B - Legal digests

65
Q 
Administrative agencies exercise which function in promulgating regulations?
A - Quasi-Legislative
B - Quasi-Executive
C - Quasi-Judicial
D - Quasimodo
A

A - Quasi-Legislative

66
Q 
Administrative agencies exercise which function in enforcing regulations?
A - Quasi-Legislative
B - Quasi-Executive
C - Quasi-Judicial
D - Quasimodo
A

B - Quasi-Executive

67
Q 
Which legislation establishes the parties' right to judicial review of administrative action?
A - The Federal Judicial Act
B - The Administrative Procedures Act
C - The Federal Aviation Act
D - The Administrative Omnibus Act
A

B - The Administrative Procedures Act

68
Q 
Jurisdiction over a particular person is:
A - Personal jurisdiction
B - Subject matter jurisdiction
C - Appellate jurisdiction
D - Quasi-in rem action
A

A - Personal jurisdiction

69
Q 
The authority of a court to hear and decide a particular dispute is:
A - Personal jurisdiction
B - Subject matter jurisdiction
C - Appellate jurisdiction
D - Quasi-in rem action
A

B - Subject matter jurisdiction

70
Q 
What amount in controversy must be alleged for a federal lawsuit based on diversity jurisdiction?
A - Exceeds $25,000
B - Exceeds $35,000
C - Exceeds $50,000
D - Exceeds $75,000
A

D - Exceeds $75,000

71
Q

In criminal prosecution, proper venue is:
A - The state in which the victim resides
B - The state in which the defendant resides
C - The locality where the crime occurred
D - The locality in which the crime has the most impact

A

C - The locality where the crime occurred

72
Q 
Which is not considered a form of alternative dispute resolution?
A - Arbitration
B - Mini-trial
C - Civil lawsuit
D - Negotiation
A

C - Civil lawsuit

Paralegal Exam Review (9 decks)

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