week 1 notes Flashcards
1
Q
What is law? (3)
A
- governmental rule
- prescribing conduct
- carrying a penalty for violation
2
Q
distinguish religion, ethics, morality, social clubs, etc.
A
governmental rule
3
Q
wrongful conduct as well as what is right
A
prescribing conduct
4
Q
money damages/ deprivation of liberty
A
carrying a penalty for violation
5
Q
each colony was a “nation” unto itself
- negotitate treaties, currency, militia
- had power/responsibility to see to the health and welfare of its citizens
- police power to regulate an orderly society
A
colonies of the constitution
6
Q
created the United States- federal government
- states gave up certain rights
- fed. gov. would defend the country with army and navy
- fed. gov. would regulate commerce with foreign nations and among the states
- fed. gov. would negotiate treaties
- fed. gov. would enact uniform laws on bankruptcy
-all classified as enumerated powers
A
1787 constitutional convention
7
Q
also known as statues or acts or codes
A
legislation
8
Q
- congress consists of the house of reps. and the senate
- reps and senators are elected by citizens
- there is both a federal congress and all but one state has a congress
A
laws written by congress
9
Q
legislation passed by congress, both fed and state must be authorized by
A
constitution
10
Q
legislation passed by congress but not authorized by the constitution will be declared ___ by the court system
A
unconstitutional
11
Q
laws written by a local muicipality are classified as
- local municipalities include counties, cities, boroughs, townships, villages
- L. Municipalities may have council, committee which acts the same as congress
- council can only write laws that are authorized by a state statue ex. zoning, noise, building codes, construction codes, open container laws, parking codes, etc.
A
ordinances
12
Q
also known as judicial law, judge made law, precedent, stare decisis and common law.
-court system also know as judiciary
A
case law
13
Q
how do judges make laws?
A
- judges determine facts, what happened?
- judge determines what law is controlling
- is a statue addresses situation; judge must interpret statute and apply statute
- if no statute, judge must locate prior decisions, or no prior decisions must consider local customs in the community that are followed
14
Q
when a judge makes a decision based on community standards, and this decision is upheld by an appellate court, this becomes new law and is the purest form of common law
A
case law process
15
Q
creation and operation of administrative agencies
-exist in both federal and state systems
A
administration law
16
Q
what does the enabling act do?
A
- creates the agency
- id’s the qualifications for the members to be selected
- id’s purpose of the agency and the scope of the power of the agency - empowers the agency
- authorize the agency to pass rules and regulations
- promulgation
- legislative function
- authorizes the agency to enforce the rules
- executive function
- authorizes the agency to conduct hearings
- judicial function
17
Q
process of passing rules and regulations
A
promulgation
18
Q
if an agency performs an unauthorized act or acts in excess of its scope of authority the act is ___
- “can add too but not take away”
A
ultra vires
19
Q
classification of crimes ; based on severity
A
- most serious ; felony
- less serious ; misdemeanor
- least serious ; petty offense also known as summary offense
20
Q
felonies (6)
A
- homicide/manslaughter
- aggravated assault
- rape
- robbery
- theft
- drug offenses
21
Q
unlawful taking of human life
A
homicide/manslaughter
22
Q
serious injury usually caused by weapons
A
aggravated assault
23
Q
unlawful sexual acts
A
rape
24
Q
forcible taking property with the use of a weapon
A
robbery
25
unlawful taking of large amount of a persons property
theft
26
distribution of controlled substance
drug offenses
27
misdemeanors
1. simple assault
2. theft
3. driving under the influence
4. drug offenses
28
no weapon and injury not as serious as aggravated
simple assault
29
taking a lesser amount of a persons property
theft
30
operating a vehicle while impaired
driving under the influence
31
possession and use
drug offenses
32
petty offenses/summary offenses
1. disorderly conduct
2. public intoxication
3. simple harassment
4. theft of small amount of property
33
if found guilty of a crime; a conviction may include
- payment of fine to the government
- deprivation of liberty
penalty
34
deprivation of liberty (4)
1. probation
2. imprisonment
3. death penalty
4. deprivation of liberty
- denied gun permit, denied right to vote, etc
35
- protects the individual who suffers loss as a result of wrongful conduct
- common law is much more relevant than in criminal cases
- criminal penalties to the state in the criminal case and
- civil remedies in the civil case to the harmed party
civil law
36
classification of civil actions (6)
1. tort law
2. contract law
3. business law
4. property law
5. probate law
6. domestic relations law
37
-wrongful private conduct by the tortfeasor who causes damage to the victim
tort law
38
person who causes the damages who commits the wrongful act
tortfeasor
39
classification of torts based on intent (3)
1. intentional torts
2. torts of negligence
3. strict liability torts
40
intentional torts (7)
1assault and battery
2. false imprisonment
3. intention infliction of emotional distress
4. defamation
5. fraud
6. trespass
7. nuisance
41
assault and battery
swing and miss vs. swing and hit (hit is the battery)
42
false imprisonment
restricting a persons right to move freely through society i.e shoplifting
43
intention infliction of emotional distress
outrageous conduct i.e joy riding roughly
44
false statements injure a persons reputation
| -slander ; spoken ; libel statement in writing
defamation
45
false statements or concealments cause victim harm
fraud
46
wrongful taking of a persons property real or personal
trespass
47
interference with another persons use of their property
nuisance
48
Torts of negligence
1. conduct is not intentional
2. 4 elements must be proven
- duty, breach of duty, proximate cause and damages
3. when negligence is committed by a professional providing service in their area of expertise the negligence is classified as malpractice
49
- law recognizes the value of life and thus imposes a duty on everyone to preserve life
- duty may be slight but there is never not a duty
duty
50
levels of duty (3)
1. slight duty; trespasser
2. higher duty; business invitee
3. highest duty; medical doctor owes patient
51
- measured by the conduct of what a reasonable person would have done
- standard cannot be below the reasonable person
- standard may be higher based on the relationship of others
breach of duty
52
proximity
- the tortfeasors conduct is the legal cause of the harm suffered by the victim
- based on foreseeability or danger zone of the victim
proximate cause
53
must prove damages
- medical expenses, lost wages, property damage, pain and suffering
- if no damages, court awards nominal damages
damages
54
- distinguish intentional torts and torts of negligence
- no defenses if the elements of strict liability are proven
- elements are ;
- law has determined the conduct is dangerous
- tortfeasor performed the conduct
- victim is injured
strict liability torts
55
examples of strict liability
1. harboring a dangerous animal
2. using explosives
3. products liability, restatement of torts 402A
56
deals with the rights and duties and determines who "wins" legal action
-examples are contract law, criminal law, domestic relations law, probate law and property law, etc.
substantive law
57
the mechanics of how legal actions flow through the court system
- ex. file a legal action, respond to a complaint, obtain docs.
- also includes laws of evidence
procedural law
58
civil law developed the courts awarded money damages to compensate for harm caused by the party not following the law
- money damages other name
- sometimes money can't compensate for harm
legal remedies
59
only available if the legal remedy of money damages don't compensate victim
- example; specific performance
- law considers all real property (land and things firmly attached) as unique
- injunction
- recission
equitable remedies
60
compelling a party to stop doing some conduct, such as stalking
injunction
61
allowing a party to terminate contract because of the fraud commited
recession
62
where a valid contract concerning unique goods and the seller refuses to perform
specific performance
63
the power of the court to hear a case
1. subject matter jurisdiction
- type of case
2. personal jurisdiction
jurisdiction
64
-only hear cases only set fourth in fed constitution
federal court
65
-general jurisdiction; can hear any type of case
state court
66
minimum contact with state in which court is located
| example; residency, business in state, real property in state
federal and state jurisdiction
67
district justice/magistrate
| -limited jurisdiction, small $ amount, landlord tenant disputes, beginning criminal actions
inferior courts
68
court of original general jurisdiction
- original
- first court where claims are filed
- general (almost) any kind of case except fed bankruptcy
- conducts trial
- court of record
trial court
69
- trial courts specialize
| - breaks into divisions; criminals, civil, family, probate
large county courts
70
- one judge conducts divisions on special days
| - may share a judge with adjoining county
small county courts
71
-review decisions of lower courts
appellate court
72
2 levels of appellate court
- superior court
| - supreme court
73
- either party from trial court may appeal the decision of the trial court
- superior court must accept the appeal as a "matter of right" of the parties
superior court
74
- decides which case will be accepted from appellate court
| - either party from superior court may appeal the decision to this court
Supreme Court
75
similar to state system
federal system
76
not a separate court as in state system
- magistrate has authority to hear most cases except can't preside over felony cases
- assigned cases from federal district court
federal magistrate
77
- federal system has several special courts
- courts dealing with special types of cases ex. bankruptcy, fed, claims, taxes, etc.
- court of record and court of original limited jurisdiction
federal trial court
78
2 levels of appellate federal appellate courts
1. U.S circuit court of appeals (matter of right)
| 2. U.S Supreme Court (second must request
79
request to Supreme Court from federal appellate court, form is called
writ of certiorari
80
- courts resolve disputes
- parties present to a court their dispute for resolution; this is process of litigation
- litigation ends with a trial where jury/court make.a judgement
- after judgement, additional litigation in appellate court system which attempts to assure the correct result was obtained
functions of the court
81
this occurs in the trial court
- judge facilitates jury in answering 3 questions which enables jury to make decision
- judge instructs jury on applicable law
- apply the law to the facts to reach a conclusion
trial
82
in a trial without a jury, the judge determines the facts and the trial is referred to as __
bench trial
83
after entry of judgement, either party may file an appeal
- record of the trial is sent to appellate court for review
- appellate court reviews record to see if ruling by judge is correct. Evidence presented supports the outcome of the case
- correct law is applied and outcome is just
- appellate court has 3 options; affirm decision, reverse decision, or reverse and remand
the appeal
84
record consists of all documents filed in the case, all evidence is presented
transcript of trial proceedings
85
change the judgment but the court lack sufficient information to insert the proper result. case is remanded and sent back for another trial
reverse and remand
86
sometimes the law allows or demands a new trial to be granted when the trial is appealed
appeal de novo
87
party who initiates a civil action
| -party who initiates a criminal action is the government, USA, commonwealth
plaintiff
88
party against whom a legal action is brought whether action is civil or criminal
defendant
89
alternative to litigation
- used to save time and money
- arbitration
- mediation
Alternative dispute resolution ADR
90
a person acting in a non-judicial capacity who makes a decision
arbitrator
91
a person acting in a non judicial who facilitates a meeting between the parties attempting to have the parties reach a decision.
-if no decision is made, mediation ends
mediator
92
steps in a civil court case in state court system
| (5) before the trial
1. plaintiff files the complaint (petition) ; document which initiaties a civil lawsuit
2. plaintiff serves the complain accompanied by a summons
3. defendant files a response
- could be a motion, but defendant must file an answer
4. when final answer are filed, pleadings cycle is completed
5. next phase of trial is the period of discovery
93
a notice given to a defendant, attaching the complaint and stating a time frame in which to respond
summons
94
documents on the proceeding slide, i.e complaint, motions and answers are classified as ___
pleadings
95
the formal and informal exchange of information between sides in a lawsuit
discovery
96
parties answer questions voluntarily presented by the other party and information is exchanged
informal discovery
97
witnesses/ parties are served a subpoena requiring their attendance before a court reporter and answer questions under oath
desposition
98
desposition, interrogatories, and motion to produce documents/things
formal discovery
99
written questions, served on witness/parties requiring the questions to be answered under oath
interrogatories
100
motion served on witness/parties requiring production of tax returns, doctor reports, vehicle damages, etc.
motion to produce documents / things
101
steps in a civil court case in state court system (8) during trial
1. trial
2. parties present evidence through use of testimony of witnesses and parties and documents and things
3. after each side has presented, attorneys make closing arguments to jury/judge
4. judge "charges" the jury with applicable law and explains how the law is to be applied to the facts as determined by jury
5. after jury deliberates, they return with decision which is verdict
6. judge reviews verdict and is filed as judgement
7. appellate process occurs
8. when time passes without appeal, judge declares judgement final
9. execution occurs
102
when judgement is final, the "winning" party uses a process known as __ to collect money judgement
-conducted in the state system by the sheriff
execution
103
when sheriff takes possession of the assets and sells them at a sheriff sale
levy
