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Legal Environment of Law > Exam 1 > Flashcards

Exam 1 Flashcards

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1
Q

Law

A

made up of rules which are laid down by the state and backed by enforcement

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2
Q

Three types of Property

A

Public, Private and Common

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3
Q

Natural Law

A

law contains universal moral principles that are observable and can be determined through human reason

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4
Q

Positive Law

A

law is simply the commands of the state backed by force and punishments

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5
Q

Historical School

A

contemporary law should focus on legal principles that have withstood the test of time in a nation

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6
Q

Sociological Juris.

A

law can and should change to meet new developments in society

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7
Q

Legal Realism

A

looks at what’s being done by law enforcers

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8
Q

Common Law

A

emphasizes the role of judges in determining the meaning of laws

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9
Q

Civil Law

A

relies more on legislation than on judicial decisions to determine what the law is

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10
Q

Public Law

A

includes those matters that involve the regulation of society (const.,admin. and criminal)

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11
Q

Private Law

A

covers those legal problems and issues that concern your private resource relationships with others (property, contract and tort)

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12
Q

Substantive Law

A

defines the legal relationship of people with other people, or of people and the state

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13
Q

Procedural Law

A

deals with the methods and means by which substantive law is made and administered

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14
Q

Three sources of law

A

Federal, State and Case Law

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15
Q

Advantages of Case Law

A

“let the prior decision stand,” helped people become secure in their property rights which led to investing resources in fixed locations

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16
Q

Disadvantages of Case Law

A

large volume of prior cases to search through, conflicting precedents creates uncertainty, courts are hesitant to reject precedents

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17
Q

Const. Relativity

A

the idea that courts should interpret the Const. relative to the times

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18
Q

Originalism

A

the idea that courts should interpret the Const. only according to the intentions of those who wrote it

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19
Q

Legal Sanctions

A

methods used to encourage or force compliance with obedience to the law

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20
Q

Sanctions for Criminal Conduct

A

death, fine, imprisonment, removal from office, banned from holding office, banned from voting

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21
Q

Sanctions for Breach of Contract

A

compensatory damages usually, sometimes consequential damages, if serious enough contract may be allowed to be cancelled

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22
Q

Sanctions for Tortious Conduct

A

compensatory damages usually, if extreme or intentional then punitive/exemplary damages

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23
Q

Sanctions for Violating Statutes and Regs.

A

compensatory damages, usually use a multiplier for damages and award attorneys fees

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24
Q

Corporate Governance

A

legal rules that structure, empower and regulate the agents of corporations and define their relationship to the owners

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25
Importance of Judges
determines the applicable rules of law to be used to decide the case, main link b/w the law and the citizens it serves, observe and apply const. limits and guarantees
26
Importance of Justices
decide and appeal, essentially concerned with issues of law (not fact)
27
The Jury
fact-finding body, 6-12 people in a jury (Rule 48)
28
Lawyers
serves as a counselor, advocate and public servant, also present evidence, points of law and arguments
29
Subject Matter Jurisdiction
the power of a court over the issues involved in a case
30
State Trial Courts
determine facts and the law in the case, parties file lawsuits or complaints seeking to protect their property rights or redress a wrongdoing
31
Federal Courts reside over matters involving:
questions of federal law, the U.S. as a party, controversies among states, certain suits b/w citizens of different states (diversity of citizenship)
32
Diversity of Citizenship
all plaintiffs must be citizens of different states from all defendants, claim >$75,000, guards against state court bias
33
Petition for Writ of Certiorari
an appeal to the S.C. to review a case, 4/9 S.C. judges must vote "yes" to grant it
34
Judicial Review
the power of the courts to declare a law passed by legislation or an action taken by the executive branch to be unconst. and void
35
Judicial Restraint
a philosophy whose followers believe that judicial power shouldn't be used except in unusual cases (aka strict constructionism or judicial abstention)
36
Judicial Activism
a philosophy whose followers believe the judicial power should be used whenever the needs of society justify its use
37
Standing to Sue
when a plaintiff proves they're entitled to have the court decide a dispute
38
To est. a Stand to Sue the plaintiff must:
allege that the litigation involves a case or controversy and allege a personal stake in the resolution of the controversy
39
Personal Jurisdiction and how it's obtained
the courts authority over the parties in a case | Obtained when plaintiff files suit, and when defendant is given a service of summons
40
Long-Arm Statutes
allows a court to obtain jurisdiction over a defendant that's out of state
41
Long-Arm Statutes are normally allowed if defendant:
has committed a tort within the state, owns property within the state, has entered into a contract with a business that is within the state
42
Class-Action Suits
when one or more plaintiffs file suit on their own behalf and on behalf of all other people who may have a similar case
43
Pleadings and what they do
legal docs. that are filed with a court to begin litigation process, give notice to each parties contentions and serve to set boundary lines of the litigation
44
Complaint
pleading a plaintiff files to begin a lawsuit, contains allegations and a statement of the relief sought
45
Answer
defendants response to the complaint that admits or denies each allegation and may also contain counterclaims
46
Purpose of Discovery
to ensure that the results of lawsuits are based on the merits of the controversy and not the ability, skill or cunning of counsel
47
Methods of Discovery
Interrogatories-written questions that opposing party must answer Request for Production of Documents Depositions-a recorded interview of possible witnesses Request for an Admission-a request to admit that certain issues presented in the pleadings are no longer in dispute
48
Motion to Dismiss for Failure to state a Cause
can be filed instead of answering a pleading | "even if everything the plaintiff says is true, he isn't entitled to the relief he seeks"
49
Motion for a Judgement on the Pleadings
asks judge to decide the case based solely on the complaint and answer
50
Motion for Summary Judgement
asks judge to decide the case based on the pleadings and other evidence (like affidavits-sworn statements)
51
Frivolous Cases
cases totally lacking in merit and can be terminated by a judge if they feel it is in fact frivolous
52
Steps of a Trial after Pleadings
``` Opening statements Plaintiff intros evidence Defendant intros evidence Closing statements Jury's decision ```
53
Burden of Proof
the burden of responsibility to come forward with evidence on a particular issue (normally on plaintiff)
54
Burden of Persuasion
the burden a person has to be persuasive as to a specific fact (normally on defendant)
55
Three levels of Proof
1) Beyond a Reasonable Doubt (criminal cases)--no doubt of the defendants guilt 2) Preponderance of Evidence (civil)--more evidence supporting one side than the other 3) Clear and Convincing Proof (civil)--needs to have evidence heavily supporting one side over the other
56
Appellant and Appellee
party appealing and successful party in the trial court
57
A Brief in an Appeal contains:
short description of the case, factual summary, legal points and authorities, and arguments for reversing or affirming the lower courts decision
58
Execution of Judgment
occurs when a court official seizes some property of the debtor, sells it at a public auction and applies the proceeds to the creditors claim
59
Garnishment
having a portion of the debtors wages paid to the court, which is turn pays the creditor
60
Res Judicata
the case has been finally decided on appeal or the time for appeal has expires and the decision is final
61
Negotiation
the process used to persuade or coerce someone to do what you want
62
Five Negotiation Styles
1) Compete-high assertiveness, low cooperation 2) Avoid-low a, low c 3) Compromise-medium a, medium c 4) Collaborate-high a, high c 5) Accommodate-low a, high c
63
Positional Bargaining
method of negotiation in which parties typically state their respective expectations ans then go back and forth bargaining until they reach an agreeable decision
64
Five Elements of Principled Negotiation
1) Communication-balanced talking and listening, can turn a blame game into an effective negotiation 2) Relationship-could benefit from discussing how each party would benefit by continuing their relationship 3) Interests-communicating each others interests can show mutual interests you can agree on 4) Options-should brainstorm options and solutions to the dispute 5) Legitimacy-options should be legitimate and something the other will obviously reject
65
Scale of Alternate Dispute Resolution (ADR) Systems
``` Highest Cost: Trial and Appeal | Focus Groups | Arbitration | Mediation | Lowest Cost: Negotiated Settlement ```
66
Focus Groups
attorneys gather a group of citizens , present their case to them, and then the group gives a verdict--like a dress rehearsal and shows weaknesses in the case helps disputing parties engage in more meaningful negotiations
67
Arbitration
when the disputing parties agree to have a third party (arbitrator) decide the merits of the dispute
68
Importance of Arbitrators
usually have expertise in the particular industry and knowledge of the customs and practices of the particular work site, expected to look beyond strictly legal criteria to other factors that will help in the resolution
69
Award
the decision of the arbitrator valid as long as it resolves all issues of conflict and states who pays who what is final and is enforced by the courts
70
Predispute and Postdispute Arbitration Clause
Pre--common in business contracts and state that both parties agree to arbitrate if disputes arise in the future (better option) Post--when parties already in a dispute decide to arbitrate
71
Mediation
process by which a third person (mediator) attempts to assist disputing parties in resolving their differences (no binding solution)
72
Procedures of a Mediation
1) Mediator's opening statement and explanation of mediation and the "rules" 2) Parties' opening statement 3) Dialogue/Exchange Phase--parties talk and try to "clear the air" 4) Brainstorming possible solutions/options 5) Possible caucuses are held (decided by mediator if they're needed) 6) Written and signed agreement
73
Examples of Misdemeanors
traffic tickets, DUI, assault (county jail)
74
Examples of Felonies
robberies, murders (state jail)
75
Four Rules of Evidence
1) Best Evidence--want original docs and records 2) Hearsay Rule--only want people to testify in court what they perceived with their five senses 3) Leading Questions--a question that suggests what the answer should be by its tone or wording (not allowed during direct examination but allowed during cross examination) 4) Privileged Communication--some communications not allowed to be revealed in court (dr-patient, attorney-client, confessionals)
76
Remittur and Additur
motion that requests judge to reduce/increase amount of award
77
General vs. Special Verdict
General--guilty/not guilt and amount | Special--jury is asked a list of questions, then judge applies their answers to the law
78
Ripeness Doctrine
(limit to trial) incident must have already happened, not going to happen in future
79
Mootness
(limit to trial) dispute over time has resolved itself so no need for a trial
80
Collateral Espotale
(limit to trial) cant (re)try case on same facts (like res judicata)
81
Sovereign Immunity
(limit to trial) govt. or govt. officials cant be sued unless it agrees to it
82
Exportatory Claus
(limit to trial) when a contract or warning sign states they're not reliable for injury or loss

Legal Environment of Law (1 decks)

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