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BLAW > Exam 1 > Flashcards

Exam 1 Flashcards

1
Q

What is a law

A

Enforceable rules governing relationships among individuals and bw individuals and their Society

Rules governing relationships of society

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2
Q

Ethics

A

Principles that constitute what is right and wrong

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3
Q

Primary sources of American law

A 
Constitution of US 
Constitution of states 
Statutory law
Regulations by agency 
Case law and common law
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4
Q

Statutory law

A

Laws passed by Congress, state legislators or local governing bodies

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5
Q

Second sources of law

A

Books or articles that clarify and summarize laws

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6
Q

Constitutional law

A

Law expressed in the constitution

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7
Q

Administrative law

A

Rules and orders and decisions of administrative agencies

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8
Q

Case law

A

The doctrines and principles announced in cases

Governs all areas not covered by statutory law or administrative law

Part of common law

Essentially judge made law

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9
Q

Common law (common law of England)

A

Associated with judge made law
Rules established by courts
Followed until court ruling changes

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10
Q

Civil law (French law)

A

Laws made by the will of the peoples

Originating in Europe

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11
Q

Most all states use common law except for what state???

A

Louisiana who uses civil law

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12
Q

Sharia law

A

Law based on religion

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13
Q

Defendant

A

Party being sued

Must defend themselves

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14
Q

Plaintiff

A

Party that is suing

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15
Q

Precedent

A

Decision that furnished an example for authority for deciding subsequent cases involving identical or similar legal principle or facts

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16
Q

State decisis

A

Stand on decided cases

Judges are obligated to follow the precedents established within their jurisdiction

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17
Q

Two aspects of state decisis

A

Court should not overturn own precedents unless compelling reason to do so

Decisions at top court r binding on lower courts

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18
Q

Criminal law

A

Concerned with wrongs committed against the public as a whole

People v public

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19
Q

What is at stake in a criminal case

A

Life
Liberty
Freedom

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20
Q

In criminal cases how high is the burden of proof

A

It is higher and held with the government

Beyond reasonable doubt

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21
Q

Beyond reasonable doubt

A

0-100 scale of how guilty a person is

Govt doesn’t have to get 100 they have to get at least 95+

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22
Q

What does Absolute certainty in burden of proof mean

A

100% know how ( you 100% who committed the crime )

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23
Q

How to prove a case beyond reasonable doubt

A

You don’t have to prove to the jury that defendant did not do it

You have to plant the idea that he couldn’t have done it - giving them reasonable doubt (he might have done it)

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24
Q

What does not guilty mean in a court ruling

A

The govt has not proven that this person can be prosecuted for his crime

Casey Anthony Case
- child buried in back yard

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25
Q

Civil law

A

Rights and duties that exist bw persons and their governments and a person right are violated

Person vs person
Case bw citizen

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26
Q

What is at stake in civil case

A

Money

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27
Q

In civil law how large is the burden of proof

A

The burden proof is lower Bc preponderance of the evidence

There’s greater weight of the evidence “you need more of it”

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28
Q

In a civil you are obligated to

A

Prove your side over the other party

You win when 51 vs 49

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29
Q

Double jeopardy

A

On entity cannot prosecute a person twice for the same offense

The government only gets one bite of the apple

Only one shot

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30
Q

New evidence is discovers just after a “not guilty” verdict? Can the persecutor “try again”

A

No

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31
Q

Can persecution call the crime committed something else? For example if a person was found not guilty of rape: can he get prosecuted for assault and battery??

A

No

A rose is a rose is a rose - smells as sweet whatever you call it

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32
Q

Can a criminal who is prosecuted by one sovereign who found them not guilty (Georgia) get prosecuted again for the same crime by the US COURT

A

Yes

It is a different person prosecuting (diff entity)

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33
Q

Can someone who was found not guilty in criminal court be sued in civil court

A

You bet! Different courts

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34
Q

Five sources of law

A 
Constitution 
Legislation (statutory law)
Administrative 
Executive orders 
Case law (common law)
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35
Q

Constitutional law

A

Frame work for our laws- all laws must follow this document

State (10th amendment)
Federal (article 123)
-can not touch our fundamental rights - bill rights

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36
Q

Constitutional law: does the constitution even apply “Doctrine of state action

A

The govt can’t interfere with your right, but private citizens can do this -

constitution protects you only form violation from the govt - constitutional state action

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37
Q

Legislation (statutory laws):

A

Federal (passed by Congress)

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38
Q

Issues associated with legislation:

If judiciary interprets the law a certain way can legislator change the law

A

Yes

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39
Q

Issues associated with legislation:

If legislation conflicts with the constitution, which one controls

A

Judicial branch marshals decision established

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40
Q

Judicial review

A

It is the job of the judge and court to determine if the stuff comply with the constitution

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41
Q

Uniform statutory laws

A

All laws about doing something should be the same in each states

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42
Q

National conference of commissioners on uniform state laws: and uniform commercial code UCC

A

Laws regarding selling of products are same throughout the states

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43
Q

Executive orders can they be repealed by Congress

A

Yes

But the president can veto - but congress can override with 2/3 vote by senate

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44
Q

Can our of court settlements be used for other cases?

A

No you can’t

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45
Q

Trial court verdicts

A

Cases Connor use verdicts form a similar case

Cases have to be appealed. Appellate decision are in national reporter system

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46
Q

On matters of federal law do federal courts have to follow precedents set in other circuits?

A

State supreme courts and their right to interpret laws (highest court in state)

Has the last word to interpret state laws

Ex. In Arkansas you follow the 8 circuit - 8 Ball

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47
Q

State vs Brown

A

Investigated allegations of violation of narcotic laws

Gave permission to search his house without warrant

Take away: State courts can protect the citizen more but not less then that the protection provided form the us constitution

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48
Q

State decisis does what

A

Channels the law

It serves as a beacon for the trial judge so that they are fair and just

Like a lighthouse guiding s captains ship

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49
Q

The doctor one state decisis is most closely associated with the development of which of the following systems of law?

A

Common law

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50
Q

Federal trial court judge in Little Rock is considering a case which involves a matter of federal laws

A

Follow the 8th circuit

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51
Q

Acme company which sells sporting goods… did acme company violate freedom of speech?

A

Government cannot violate freedoms but private can

Acme has not violated the constitution

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52
Q

Marbury v Madison 1803

What was the final ruling of the Supreme Court

A

It is the responsibility of the Supreme Court to determine whether or not a statute violates the constitution - judicial review

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53
Q

Trial judge in Little Rock is considering a case which involves a point of Arkansas law that is somewhat unusual. What ruling would constitute a precedent which is binding on a trial judge…

Dis by ark suprem court
Dis by Texas suprem court
Dis by another trial court in Little Rock
Dis by court judge in Fayetteville

A

Decision by the arkansas Supreme Court

Bc looking for higher court in Little Rock judges jurisdiction

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54
Q

Trial by ordeal

A

Endure torture and survive = you were telling the truth

Ancient practice

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55
Q

Trial by combat

A

You fight it out and who ever is remain standing wins innocence

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56
Q

Dueling

A

Fight it out between two people and kill the other one

Whoever wins is right

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57
Q

Trial by ordeal
Trial by combat
Dueling

All don’t do what

A

Tackle the original dispute

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58
Q

Civil litigation

A

Civil courts have an open door policy about cases

Ex.

Koch v Adams
Phone taken by teacher

Stella Liebeck case

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59
Q

Stella liebeck case

A

McDonald’s coffe dispute (she got 2.8million) for spilling hot coffee on herself

McDonald ask for appeal case - can’t award women to punish you can only award to cover damages to her burns

  • punitive damages
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60
Q

Civil litigation 3 main point

A

Not all cases are submitted to courts are taken into consideration - of not appropriate

Americans don’t file as much lawsuits as other wealthy democracy

Most lawsuits are settled out of courts
Bc expensive

61
Q

Role of the attorney

A

To resolve disputes through the civil justice system

62
Q

Adversary system

A

Two advocates representing their parties before and impartial person of group of people (jury) or (judge)

63
Q

Method of payment for attorney

A

Defendants lawyer - hourly pay

Plaintiffs lawyer - contingency fees

64
Q

Congenital fees

A

You have to win for them to actually get paid

They got to want monetary recovery - they get part of that

65
Q

One way to reduce litigation: use the Canada rule

A

No contingency fee

If people cannot afford it’s- allows the port to obtain quality lawyer

66
Q

Other ways to reduce litigation

A

Prohibit lawyer ads

Loser pays rule

Discourage frivolous lawsuits: Rule 11

67
Q

Rule 11 frivolous law suits

A

If a plaintiff filed a lawsuit that has no marit (no chance to win) the judge can dismiss the lawsuit and make them pay the fee

68
Q

What are the two players of the court room

A

Jury and judge

69
Q

Jury

A

Rules on matter of fact
Listen to only evidence

Can be requested upon both parties

70
Q

Judge

A

Rules on the matter of law

71
Q

If trial judge applies rule 11 to a case that means that

A

Frivolous lawsuits

The defendant is entitled to damages as a result of the plaintiff filing a frivolous lawsuit

72
Q

Primarily the responsibility of the jury in a civil case

A

Listen to the evidence presented at trial and determine what happens in the case

73
Q

Lawyer indicates when that she want to be paid on contingency fee bases

A

This means she only gets paid when she wins the case and gets a percentage of the amount recovers

You have to be plaintiff

74
Q

Trial courts

A

Where you get judged at the trail - where the have the trial

Original jurisdiction, judge, jury, witness

75
Q

Appellate court

A

Re review court ruling of a trial after the appeal

Bw 3 to 9 judges, no witnesses, no jury, no new evidence

76
Q

How are state judges chosen

A

State judges are elected and appointed by official

77
Q

What is the Missouri plan: for state judges

A

Judges are appointed by the governor and then retained by vote

78
Q

Federal judges are chosen by

A

Appointment by the president and must be confirmed by the senate

Term “good behavior

79
Q

What is jurisdiction

A

The power of a court to hear a civil case

80
Q

What are the two requirement to have jurisdiction

A

You need jurisdiction over the person

Jurisdiction over the subjected matter

81
Q

How to revive jurisdiction over the person

A

Defendant is a resident of the state in question

If person is non resident then the “long arm statue” might give jurisdiction - requires minimal contacts rule

Ex. Doing business in the state, commiting crime in the state, etc

82
Q

Jurisdiction over the person in cyberspace

A

Business has established “minimum contacts” if they have a physical presence (store or office) in a state, or has targeted the market of a particular state

83
Q

8 circuit of appeals

A

Arkansas is part of this

It’s basically the old Louisiana purchase

84
Q

Structure of federal courts

A

District courts (trial courts)
Court of appeals (in Arkansas that is 8 ball)
Us Supreme Court (highest courts in our system)

85
Q

Federal courts and jurisdiction over the “subject matter:” limited by both constitutional and statutory laws

A

Exclusive: United States is a party, bankruptcy, copyright, patent

  • can’t sue FED in state court
  • need to be in fed court

Concurrent- can be brought into fed court

  • federal question (interpretation of fed law)
  • dealing with diversity of over 75000 dollars
86
Q

What is a diversity of citizenship cases

A

One person from another state v another person from a diff state

No plaintiff can have the same state citizenship and any defendant

Judge apply state laws in this

87
Q

Pre trial court procedures

A

File complaint

Service of process (act of being sued) - delivery of complaint

Answer: counter claim and cross complaint

Discovery: find out as much as you can about other sides case - interrogatories and disposition

88
Q

Disposition what is is

A

Use witnesses to questions

89
Q

Trial procedures

A 
Selection of jury 
Trial procedure 
Testimony 
Instructions 
Verdict
90
Q

Selection of jury

A

Jury selection and voir dire
Challenges for cause (do they have any feeling toward this before we begin)

Peremptory challenge (excuse at least 3 people of jury for the bases of anything except race or sex)

91
Q

Learning about potential jurors: consulting firms and now social media

A

Select jury that will vote for them then theirs opponent

92
Q

Is it the role of the lawyer to find a juror who are most likely to review the fact if the case in a fair and impartial manner

A

False

93
Q

Trial procedures

A

Open statement by lawyers : lawyers tell people what they are doing, want the jury know what to listen for so they don’t miss it

94
Q

Testimony

A

Direct v cross examination
Hearsay
Criminal cases: Prior convictions generally not admissible

95
Q

Jury must make their decision based solely on what

A

The evidence

96
Q

Do verdicts have to be unanimous

A

No

97
Q

How does the trial judge exercise control over the jury

A

Summary statement
Direct verdict
Judgment NOV

98
Q

What is summary judgment

A

Judge ends the dispute before the trial even begins

One side is entitled to win by the law

99
Q

Direct verdict what is it

A

Usually the party with the burden of proof begins first

“I rest my case” I have showed you all my proof that I have

Judge ends the trio in the middle

100
Q

Judgment NOV

Not standing verdict

A

Really outraged verdict that cannot be supported by the evidence

Occurs after trial

101
Q

The appeal

A

Notice of appeals filed w the trial court
Brief filed by lawyer
- written argument of why there is reversible error and not reversible error
Oral argument
No new evidence in appeal court
Action of appeals court
Appeal to higher court

102
Q

Actions by appellate court: affirm

A

No mistake and decision of trial court stays

103
Q

Actions by appellate court: reverse

A

Decision reversed or modified

104
Q

What is a class action lawsuit

A

Make level playing field fir plaintiff to go against big company

105
Q

Collection of judgements

A

Not exempt

Garnishment

106
Q

What does not exempt mean

A

Assets can be seized

Can get Sheriff to get the items and sell them to get the judgement for you

Look at deeds at personal items

107
Q

Garnishment what is it

A

Seizure of wages

Employer sends paycheck to employees but you intercept it (25% of it)

108
Q

If the debtor cannot or will not pay the judgment can he be sent to prison???

A

Not anymore only in England

109
Q

What is the order of the events in civil lawsuit

A

Complaint
Service of process
Answer
Discovery

110
Q

Illegal to use peremptory challenge to disqualify a juror in the basis of what

A

Race and gender

111
Q

Judge feels that the facts are not in dispute and that the case can be resolved without the need for trial, the judge would

A

Issue a summary judgment

112
Q

Why is the ADR popular

Alternatives dispute resolution

A

Alternatives to litigation

  • mediation
  • arbitration
113
Q

What is mediation

A

Bring in 3rd party to figure out middle ground so that both party can win

Not binding- don’t have to except

Judges like this and sometime do this first before trial

114
Q

Arbitration what is it

A

Third party is looking for a winner
(Going to decide who wins)

This is binding

Usually done one things that are not a lot of money

115
Q

Resolving dispute through administrative agency

A

Congress feel that they don’t have the ability to mess with these certain fields, so they delegate them to these agency

116
Q

Administrative agency have what powers

A

Congress creates a an agency and defines its authority

It can make rules that have wait of law

Punish violators

117
Q

Before and agency can make a ruling that has weight of law they have to do what

A

Give the public 30 days for comments

Public can be heard in the Merritt or that law

Then final issue can be done

118
Q

The power to adjudicate

A

Hearing procedure (like trial but less strict on evidence)

Ruling by ALJ

Appeal to commission as a whole
- must go to the full place if that ruling before you can make an appeal / exhaustion of remedies doct

119
Q

The constitution is the foundation of what?

A

It is the foundation of our entire legal system

120
Q

What is the bill of rights

A

Gives feedings and liberty to the people

Assures the govt can never mess with these

121
Q

Oldest constitution on earth is from where

A

The United’s states

122
Q

What is federalism

A

Division of power between the federal govt and the state govt

123
Q

What is the separation of powers

A

Division of power within the federal government

Split into 3
Executive
Legislative
Judicial

124
Q

What is judicial review

A

Power of the court to interpret the constitution and decide if laws made by congress comply with it

125
Q

What are the schools represented in the Supreme Court

A

Harvard Yale and Columbia

126
Q

What does article one section eight cover

A

The rights of the legislative branch

Specifically the right to regulate commerce (commerce clause)

127
Q

What is the commerce clause

A

Allows congress to regulate the movement of goods across state lines
Or anything act that may affect that

Ex. Heart of Atlanta motel 1964 civil rights law

128
Q

What is the heart of Atlanta motel 1964 civil right law

A

Racial discrimination is illegal bc segregation has a negative effect on interstate movement of people bc can not find suitable living area = hindering interstate commerce

Legal justification to pass civil rights law

129
Q

What does article 2 cover

A

The authority of the executive branch

Power of the president

130
Q

What are the power of the president

A

He has the right to choose federal judge for judicial branch; subjected to approval by senate

He commander and chief of our military forces

He does not have the authority to declare war - that is congress power

131
Q

What does article 3 cover

A

The judicial branch

Appointed judges by president are subjected to approval by senate and serve terms of good behavior

132
Q

Article 4 deals with what

A

Full faith and credit clause

  • official act of home state must be valid in all other states

Ex driver licens

133
Q

What does article 5 deal with

A

Amending the constitution

134
Q

What does article 6 deal with

A

The supremacy clause

135
Q

What is the bill of rights

A

Gives the people their freedoms

First ten amendments

136
Q

What does the 1st amendment deal with

A

Your freedoms of speech and religion

137
Q

What is the establishment clause

A

Government must avoid excessive entanglement with religion

Cannot tell someone how to worship

Ex. Prayers before football games

138
Q

What does the free excessive clause allow you to do

A

Give you the right to worshiping in anyway you want

139
Q

What are the two types of freedoms of speech in the first amendment

A

Symbolic (political speech)

Commercial speech (advertisement)

140
Q

What is symbolic speech

A

It is political speech

That is highly protected by the constitution (govt can’t take away)
Ex. Burning flag

Can place limits on expression if reasonable or content neutral
Ex. Flyers on cars

141
Q

What is commercial speech

A

Usually advertising speech

That is given less protection by the govt

This is bc they need to protect the people

Ex. Deceptive ads

Bad frog brewery

142
Q

What are unprotected speech

A

Clear and present danger

Defamation

Obscenity

143
Q

What is clear and present danger speech

A

Words that can cause danger or harm to other people

Fighting words, threats

Ex. Screaming fire in movie theater

144
Q

What is defamation speech

A

Defaming others with untrue things

145
Q

What is obscenity

A

Something that doesn’t appeal to usual standards of an area

Defined by miller 3 guidelines

146
Q

What did Miller v California 1973 do

A

Established the 3 guidelines to define obscenity

147
Q

What are the 3 guidelines that define obscenity

A

If avg person would think it appeals to prurient interest (sexual stimulant)

If work depict sexual conduct in offense way

If it lacks serious artistic literal political or scientific value

148
Q

What is considered when considering

Obscenity and the internet

A

Stanley v Georgia

States private possession of obscene material is protected by 1st amendment

But sending it is prohibited

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