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Introduction Flashcards

1
Q

standing to sue + who has it (3 rq)

A

sufficient stake in matter to justify seeking relief
Harm - must have suffered or face imminent harm
Causation - causal connection between conduct complained and injury
Remedy - it must be likely that a favorable court decision will remedy the injury suffered

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2
Q

statutory law

A

passed by legislature, incl local reg like land use

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3
Q

uniform laws

A

legal scholars and lawyers formed national conference of commissioners on uniform state laws to draft uniform laws, or model statutes – each state has option of adopting or rejecting or modifying

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4
Q

administrative law

A

rules, orders, decisions from administrative agencies

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5
Q

independent regulatory agency officers

A

officers serve fixed terms, cannot be removed without just cause

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6
Q

case law

A

body of judge-made law, doctrines and principles announced in cases

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7
Q

common law

A

body of general rules that applied throughout realm, legal precedent

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8
Q

courts of equity

A

formal chancery courts, supply remedies in equity (specific performance, injunction – party cease engaging in activity or undo, rescission – cancellation of a contractual obligation) when no adequate remedy at law is available, but not often these days

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9
Q

equitable maxim

A
  • propositions or general statements of equitable rules
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10
Q

equitable doctrine o laches

A

“equity aids the vigilant, not those who rest on their rights”, can be used as defense

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11
Q

cannot demand a jury trial in

A

action in equity

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12
Q

basic steps of legal reasoning process

A

IRAC method – Issue - what are they key facts and issues, Rule - what rule of law applies to the case, Application - how does rule of law apply to the particular facts and circumstances of this case, Conclusion

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13
Q

secondary sources of law

A

books and articles that summarize and clarify the primary sources of law, used for guidance in interpreting and applying primary sources of law

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14
Q

restatements of the law

A

compilations of the common law published by the American Law Institute

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15
Q

schools of legal thought ()

A

natural law, positive/national law, historical school, legal realism, sociological

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16
Q

jurisprudence

A

the study of law, involves learning diff schools of legal thought and how the approaches to law characteristic of e school can affect judicial decision making

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17
Q

natural law

A

a universal law exists that applies to all people, should reflect principles inherent in natural law
Natural rights

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18
Q

positive/national law

A

law written for a given society at a given time; no natural rights
legal positivists believe there can be no higher law than a nations positive law, more likely defer to existing law

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19
Q

historical school

A

concentrates on origin and history of legal sys, what doctrines have withstood passage of time?
Followers more likely to strictly follow past decisions

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20
Q

legal realism

A

“law is just 1 o many institutions in society + that it - shaped by social forces and needs”, should take social and econ. Into account when deciding cases
“l. can never be applied w total uniformity”
Influenced growth of sociological school
More likely to depart from past decisions

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21
Q

sociological school

A

law - tool for promoting justice in society

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22
Q

types of law content (2)

A

substantive and procedural

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23
Q

reports or reporters def

A

written decisions of appellate courts published and distributed

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24
Q

types of opinions (6)

A

unanimous, majority, concurring, dissenting, plurality, per curiam

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25
plurality opinion
the opinion has the support of the largest number of judges but the group in agreement is less than a majorit
26
per curiam opinion
anon
27
enumerated power
expressed power
28
implied power
power to carry out enumerated power
29
police powers
ability of a government to enact laws to coerce its citizenry for the public good
30
privileges and immunities clause
prevents states from imposing measureable burdens on citizens of another state unless there is substantial reason activities incl transferring property, seeking employment, accessing court system
31
full faith and credit clause
[t] shall be gien in e state to the public acts, records andjudicial proceedings o e other state only civil ex. deeds, wills, contracts
32
commerce clause
National gov reg interstate commerce so states X est laws and regulations that would interfere w/ trade and commerce in other states
33
dormant/implied commerce clause
states X have authority to regulate interstate commerce
34
congress has power over $ for _____
defense and welfare of US
35
freedom of speech incl (3)
symbolic, corporate political, commerical
36
freedom of speech regualtion scrutiny
Laws that reg time/manner/place, X content receive less scrutiny Reg conent must serve compelling state interest + be narrowly written -> compelling gov interest test
37
commercial speech restrictions
Communications by business firms must be for commercial interests and not against state interests Restriction - valid if seeks to implement gov interest, directly advances it, and doesn’t o further than necessary
38
unprotected speech
Defamatory, violence-inciting, obscene, threatening
39
establishment v free exercise clause
1. Gov x est state religion or show preference 2. People ca choose any religion Restrictions must be necessary, not substantial burden to change belief, public welfare exception
40
What est judicial review?
marbury v madison
41
basic judicial rq (3)
jurisdiction, venue, standing to sue
42
in personam jurisdiction
personal jurisdiction over geographic area
43
in rem juris
jurisidction over property located within its boundries
44
long arm statute
court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state - Defendant must have had minimum contacts with the state to justify the jurisdiction - - Defendant must have sufficient connection to the state - Corp. contacts - subject to personal jurisdiction in the state in which it is incorporated - - Large corp in states where it does such substantial business is "at home" in that state
45
jurisdiction of fed courts (4 ways)
fed Q -> fed law diversity of citizenship corp citizen in 1+ state state court cases
46
(juris) diversity of citizenship rq (2) + law application
plaintiff and defendant must be residents of diff states; Dollar amount in controversy must exceed 75000 Fed court will apply relevant state law (law of statte in which court sits)
47
exclusive v concurrent juris
Concurrent juris - both fed and state courts have power to hear case; Party can choose which Exclusive juris - when case can only be tried in federal or state
48
sliding scale standard, international?
identified 3 type of internet busi contacts and outline3 rules: when defendant conducts substantial busi over internet, juris ok; when there is some interactivity through a website, juris ok sometimes; when defendant merely engages in passive advertising on web, jurisdiction never proper International - Business has to comply with laws in any juris in which it target customers for its products
49
venue + when can change?
most appropriate location for a trial | fair and impartial jury necessity
50
venue - civil and criminal
Civil: where defendant resides/does business vs criminal: where crime occurred
51
Federal court sys - how did judge get job
appointed by president of the US, subject to confirmation by the US senate, lifetime appointments, removed by impeachment proceedings
52
magistrate judges
Junior fed officers conduct diff judicial proceedings to reduce delays Selected by federal district court judges based on recommendations of a merit screening committee (attorneys, admin law judges, state court judges, other applicants), serve 8 years
53
writ of certiorari
an order issued by SC to lower court to send record of case for review
54
rule of 4
s.court will issue writ o cert. if 4/9 approve
55
alternative dispute resolution types (3 + 4 minor types)
negotiation, mediation, arbitration | Early neutral case eval, mini-trial, summary jury trials, summary proceedings w use of special masters
56
mediation
Neutral 3rd party = mediator and works with both sides to facilitate a resolution, usually charges fee, but not necessarily lawyer Talks with oth parties separately and jiontly, emphasizes points of agreement, and eval options, propose solutions Less adversarial, tends to reduce antagonism between disputants
57
arbitrator, award, when can it be appealed/set aside?
arbitrator decision an award can be appealed, but courts review of decision will be more restricted than appellate of trial court b/c parties - free to frame issues and set powers of arbitrator Will be set aside if court finds: conduct/bad faith prejudiced rights of one of the parties, award violated est public policy, arbi exceeded their powers b/c arbi issues that parties didn’t agree to
58
pro se representation
parties rep themselves in court
59
3 types of attorney fees
fixed fees - charged for service, like drafting will hourly fees - indeterminate period of time contingency fees - % of client's recovery
60
pretrial procedures
filing of the pleadings | gathering of evidence or discovery
61
parts of the pleadings
complaint - pleading made by plain* alleging wrongdoing on part o def*, initiates lawsuit, states juris, legal theory, remedy answer - defendant's response
62
service of the process
formally notifying defendant of a lawsuit with a copy of the complaint and a summons □ Summons = notice req/ the defendant to appear in court and answer the complaint, must be answered in a specified time period or suffer default judgement v him
63
Default judgement
= plain* - awrded damages alleged
64
(pleadings) answer, 2 types
admits/denies e allegation + set forth defenses affirmative defense - admit truth but raise new facts to show X liable Counterclaim: Claim made by def* in civil that sues plaintiff, plain* needs to submit answer to counterclaim
65
motion, 3 types
procedural request submitted to court by att* on behalf of client, must provide def w/ notice of motion informing def* that motion has been filed dismiss, for judgement, for summary judgement
66
(motions) dismiss (4)
dismiss case f reasons stated if claim X have remedy that can be granted, X properly served, X juris, venue improper
67
motion f judgement on pleadings, granted if
asks court to decide issue on pleadings w/o trial, granted if no dispute over facts and sole issue is question o law
68
motion f summary judgement
Asks court for judgement wo trial, before or during trial | p* filing motion can submit eidence obtained b4 trial to refute factual clai
69
affidavits
sworn statements by parties/witnesses; copies of docs obt during discovery; only evid that would be allowed at trial
70
de novo review
reviews issue as if lower court X rule on issue, used if decision appealed
71
3 rules of discovery
Allowed if relevant to claim or defense o either Protection o witnesses fr undue harrassment Prevent priv or confidential mat fr/ disclosure
72
depositions
Sworn testimony by party to lawsuit or by any witnessesrec by authorized court official Answers both sides Can be used to impeach (challenge credibility of) * at trial if change testimony Can be used at trial if testimony not avail
73
Interrogatories
Written Q for which written answers - prep and signed under oath Usu 30 days to prep answers Obligated to answer Q
74
Requests for admissions
Any fact admitted under req - est true f trial
75
Requests for exams
Phys or mental condition | Opposing party can get results
76
Spoilation of evidence
doc or info req for discovery - destoryed/altered sig
77
voir dire
bias/connection in jury selection
78
trial procedures
opening statement, rules of evidence, exam o witness and potential motions
79
rules of evidence
evidence that proves or disproves a dact in Q or rest degree of probability of fact/action
80
examinaiton of witnesses (4)
direct questioning by plaintiff first, cross-examination, redirect examination, recross examination
81
posttrial motions (2)
motion for new trial - jury in error, judgement X appropriate, new evidence, misconduct, /error by judge MOTION FOR JUDGEMENT NOV if verdicy - unreasonable + erroneous
82
appellate review (4 results)
affirm, reverse, remand, reverse in part
83
petition
losing party right to ask higher court to review case
84
writ of execution
requesting court assistance in collection

Business Law (18 decks)

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