Test 1 Flashcards
(162 cards)
1
Q
sources of law in the United States
A
- the constitution
- statutes
- common law
- administrative law
2
Q
1st 10 amendments
A
bill of rights
3
Q
supreme law of the land
A
the constitution
4
Q
creates the 3 branches of government and gives each certain powers
A
body of the constitution
5
Q
protects individual rights by limiting government’s power
A
amendments to constitution
6
Q
article 1
A
legislative branch
7
Q
article 2
A
executive branch
8
Q
article 3
A
judicial branch
9
Q
legislative branch
A
creation of new laws
congress responsible for where money comes from and where it is spent
10
Q
bills
A
introduced by one house or the other
voted on and sent to the executive branch for signature
11
Q
statutes
A
laws created by legislators
bills that have been voted on by both houses, submitted to the executive branch and signed into law
12
Q
ordinances
A
statutes are the local level
statutes that have been enacted by municipalities and local government agencies
13
Q
executive branch
A
enforcing laws
president can veto and can enter into treaties with foreign governments
veto can be overcome by a 2/3 majority vote of both houses
14
Q
executive orders
A
issued by the president to help the operation of the departments and agencies of the executive branch
15
Q
administrative agencies
A
“4th branch of government”
agencies that help run the government
16
Q
commerce clause
A
gives power to congress to regulate trade
“the power to regulate commerce with foreign nations, and among the several states and with indian tribes”
17
Q
supremacy clause
A
any federal law over state laws, when dispute between them both
18
Q
1st amendment
A
freedom of speech -dangerous speech not protected -commercial speech (advertising) freedom of religion freedom of press
19
Q
departmental agencies
A
answer directly to president
IRS, ICE, FDA, CDC, PTO, OSHA, FBI, DEA
20
Q
independent agencies
A
do not answer directly to president
money is how to government controls them, take away funding if they aren’t doing what congress wants
CIA, EPA, FTC, FCC, SEC, SSA
21
Q
judicial branch
A
creates the supreme court
22
Q
common law
A
created by judges, “making their own rules”
higher court decisions are always over/trump lower court decisions
these decisions carry the weight of law
23
Q
stare decisis
A
lower courts follow precedent by higher courts
24
Q
mediation
A
alternative dispute resolution
involves a neutral party who listens to the case and renders a recommendation
non-binding
25
arbitration
alternative dispute resolution
involves the use of a neutral third party who renders a binding decision
binding
26
supreme court justices
```
Chief justice roberts
scalia
thomas
alito
ginsburg
bryer
kagan
sotomayor
KENNEDY
```
27
precedent
lower courts much follow the legal rules created by higher courts
provides for greater consistency in the law
28
brown v. board of education shows that...
one supreme court can overrule prior supreme court cases
29
enumerated powers
those powers expressly allocated to the federal government
30
federalism
those powers not expressly allocated to the federal government are left to the individual states
31
interstate commerce
business affecting more than one state
32
intrastate commerce
business affecting only one state
33
the establishment clause
prohibits the government from either establishing a state religion or promoting one religion over another
34
the free exercise clause
prohibits the government from interfering with the free exercise of religion in the US
35
2nd amendment
right to bear arms
36
3rd amendment
government can't keep a soldier in someone's house without their permission
37
4th amendment
protects against unreasonable searches and seizures
government needs a search warrant
arrest warrant
government must show probable cause
38
5th amendment
due process clause: federal
self incrimination
double jeopardy
the takings clause
statements made to the police must be voluntary
miranda v. arizona/ miranda rights
to trigger miranda there must be custody and interrogation
right to remain silent
39
due process clause
notice before government does something, full and impartial hearing
5th amendment: federal
14th amendment: state and local
40
the takings clause
government can take property through eminent domain: government must pay for compensation
41
6th amendment
right to an attorney
| right to a jury in a criminal case
42
7th amendment
right to a trial by jury in a civil case
43
8th amendment
cruel and unusual punishment
| no excessive bail
44
10th amendment
federalist government by reserving to the states any powers that are not expressly given to the federal government
45
13th amendment
prohibits slavery and indentured servitude
46
14th amendment
equal protection clause
| due process clause: state and local
47
equal protection clause
a state cannot deny to any person within its jurisdiction the equal protection of the laws
48
18th amendment
banned the manufacturing, sale, and transport of alcohol
49
19th amendment
gives women the right to vote
50
21st amendment
alcohol is legal
51
26th amendment
lowers the voting age from 21 to 18
52
federal jurisdiction
federal question
diversity jurisdiction
-different states
-amount sued for over $75,000
53
civil case
plaintiff must prove the case by a preponderance of the evidence
mostly looking for money
54
criminal case
government must prove the case beyond a reasonable doubt
55
malum in se
criminal case
inherently evil
- lying
- cheating
- stealing
56
malum prohibitum
criminal case
doesn't necessarily make you an evil person
- marijuana
- alcohol
57
felony
criminal law
punishable by more than one year in prison
lose the right to bear arms and vote
58
misdemeanor
criminal law
punishable by up to one year or less in prison
underage possession of alcohol, smoking marijuana, domestic violence
59
status offenses
criminal law
normally only punishable with a fine
60
contracts
civil law
an agreement between two or more parties that is enforceable in court
61
tort
civil law
violation of a legal duty to another
personal injury action, someone injures someone else or does something to their property, financial loss
negligence is the main type
62
unintentional tort/negligence
failure to act reasonably under the circumstances
```
must prove:
duty
breach
injury
proximate cause
```
63
damages
money
64
types of damages
compensatory
consequential
punitive
liquidated
65
equitable remedies
court orders someone to either do something or not to do something
- court orders
- injunctions
mainly looking for money
restraining orders
divorce
forgive debt
66
compensatory damages
money given to compensate for injuries
injuries both physical and financial
medical bills
lost wages
pain and suffering
loss of enjoyment of life
67
consequential damages
awarded for injuries that were forseeable to the parties
68
punitive damages
used to punish for willful
69
intentional tort
deliberately doing someone to someone else
defamation
assault and battery
destruction of property
70
duty
invitees: highest duty (also kids)
licensees
trespassers
71
breach
when you don't do what you are supposed to do
breach leads to injury
72
proximate cause
injury has to be directly related to the breach
73
trial court
trial takes place
evidence is called
witnesses are called
74
appellate court
no new witnesses or evidence
did the judge mess up so much that there should be a new trial or throw out the trial
75
discovery
process where the parties exchange their evidence
promotes settlements
```
4 types:
interrogatories
depositions
requests for production of documents
requests for medical or physical documents
```
76
interrogatories
written questions
77
depositions
verbal questions
78
trial process
complaint
answer
exchange discovery
settlement or trial
79
personal jurisdiction
jurisdiction over a person
defendant is a resident of the state
defendant files an answer or response to the complaint
80
subject matter jurisdiction
authority of a particular court to hear a particular case
81
in rem jurisdiction
court's control over property
82
long arm statute
allows a court to maintain jurisdiction over people or businesses located in other states
83
plaintiff
party filing the lawsuit
84
defendant
party against whom the lawsuit is filed
85
claim
a demand for a remedy, usually money, to compensate for a perceived wrong
86
class action lawsuit
a suit filed by multiple plaintiffs who have related claims
87
complaint
document filed by the plaintiff initiating a lawsuit which contains unproven allegations
88
complaint must contain
1. why does it have jurisdiction?
2. why does someone owe you money/what happened
3. how much/why should they give you money
89
statute of limitations
must file law suit within a certain amount of time or else your claim dies
90
statute of limitations
| oral contract
3 years
91
statute of limitations
| written contract
5 years
92
statute of limitations
| most torts
2 years
93
statute of limitations
| criminal cases
5 years
94
summons
the document ordering the defendant to appear and defend the allegations made against him or her
95
service of process
delivery of the summons and complaint to the defendant
96
default judgement
plaintiff automatically wins if service of process has been obtained properly and the defendant does not respond within the time permitted
97
pleading
| motion
for extension; extends time if complaint is really long and you need more time
98
pleading
| demurrer
a response alleging that there is a fatal defect in the complaint
99
pleading
| answer
formal response to the complaint
100
bench trial
case is decided by the judge if both parties waive a trial by jury
101
voir dire
examination of prospective jurors
102
charging the jury
telling the jury the law they must apply the facts to
- closing arguments
- jury deliberations
103
hung jury
occurs when less than the necessary number of jurors are in agreement
get a new trial and new jury
104
judgement
official decision of a judge about the rights and claims of each side in a lawsuit
105
judgement notwithstanding the verdict
order from judge reversing the jury's verdict
106
remittiur
ruling that the amount of money awarded by the jury was unreasonable
107
appeal
complaint made by a litigant to a superior court that a trial judge committed an error
108
defamation
false statements that are deliberately made to harm the reputation or another
rumor that is harming someone
109
libel
written defamation
110
slander
verbal defamation
111
to prove defamation
- statement harms reputation
- statement must be false
- statement communicated to someone other than plaintiff
- injury to character or reputation of the plaintiff
112
false imprisonment
intentionally restraining or imprisoning a person against their will
113
battery
any harmful or otherwise offensive touching
doesnt actually have to be touching
poison
blowing smoke in someone's face
throwing something
114
assault
an attempted or uncompleted battery that places the plaintiff in fear of an imminent battery
fear of battery
throwing something and ducking out of the way, they still have fear
115
chattel
personal property
116
fraud
deliberately lying or misleading to induce a person to part with money or property
117
commercial exploitation
unauthorized use of another person's likeness or character for commercial purposes and financial gain
118
invitee
someone who comes to an establishment for the purpose for which the business is open to the public
greatest duty of care
purpose is to buy goods or services from someone
necessary reasonable care encompasses both repair of and warning about the dangerous condition
119
licensees
someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation
greater than trespasser less than invitee
not giving you money
electrician
delivery man
120
trespasser
person who enters a place without the permission of the owner or occupier
least duty owed
121
attractive nuisance
a potentially dangerous object or condition of exceptional interest to young people
swimming pools
large empty box
122
respondeat superior
employers are liable for the negligent acts of their employees when they are acting "in the scope of their environment"
123
independent contractors
someone who contracts to do one or more specific projects for someone else and maintains control of the method for doing the work
a company is generally not liable for the acts of independent contractors it hires
seeing if people are independent contractors: taxes, payment, hours
124
non-delegable duties
duties that cannot be transferred (delegated) to another
premises safety
parking lot maintenance
pest control
125
gross negligence
total disregard for the safety and welfare of others
126
res ipsa loquitur
"things speak for itself"
shifts burden of proof to the defendant to prove that they were not negligent
very obvious negligent act by defendant
127
negligence per se
conduct that violates a law, regulation, or ordinance designed to protect the safety of the public
128
strict liability
imposes liability for resulting injuries even if the defendant took very precaution and was not negligent
blasting
wild animals
129
assumption of the risk
to establish assumption of risk, the defendant must show that the plaintiff
- had knowledge of the risk
- understood the risk
- had a choice of either avoiding or engaging
- voluntarily took risk
130
contributory negligence
plaintiff contributes to their own injury and they get nothing
131
comparative negligence
the fault of both parties is allocated by the judge or jury and the award made to the plaintiff is reduced by the amount they are at fault
132
person
individual, corporation, partnership or other legal entity
133
insurance
contract in which one person, for a fee, agrees to guarantee another against a specific loss
134
insurer
person who issues the insurance policy
135
insured
person whose loss is the subject of the insurance policy
136
owner
person who enters into the insurance contract and pays the premiums
137
premium
consideration that the owner pays under the policy
138
beneficiary
person who receives the proceeds from the insurance policy
139
types of insurance
```
property
life
health
disability
automobile
liability annuities
flood
```
140
property insurance
covers physical damage to real estate, personal property, or inventory from causes such as fire, smoke, lightning, wind, riot, vandalism, or theft
141
term life insurance
simple, cheap, covers a particular time period
142
whole life insurance
straight life, more expensive but forces policyholder to save; part of the premium goes into savings, giving the policy cash value
143
annuities
reverse of life insurance; make payments until death
144
patient protection and affordable care act
obamacare
145
disability insurance
replaces the insured's income if they become unable to work because of illness or injury
146
collision
car insurance
pays to repair or replace a car damaged in an accident
your car
147
comprehensive
car insurance
covers fire, theft, and vandalism
148
liability
car insurance
covers harm to other people or other property
usually required
their car, medical bills, things you are responsible for
149
uninsured motorist
car insurance
covers the insured and all passengers who are injured by another driver who does not have insurance
150
liability insurance
financially protect the insured for any liability they incur by accidentally harming someone else
include:
- injuries sustained on the insured's property
- injuries to another's property caused by insured
- professional malpractice/liability
- product liability
151
dram shop acts
impose civil liability on restaurants and bars for certain injuries resulting from illegal sales of alcohol
selling underage or to someone that is already intoxicated
do not protect drinker
only available to innocent 3rd parties
152
crime
an act done by an individual in violation of the duties that they owe to society and for which the law provides that the wrongdoer must make amends to the public
153
infractions
crimes that are neither a felony nor a misdemeanor that are only punishable by a fine
speeding
154
two elements must be proven for a person to be found guilty of most crimes:
mens rea
actus reus
155
mens rea
intent to do wrong
156
actus reus
wrongful act
157
exigent circumstances
exception to warrant
seeing something when you are in hot pursuit of someone else
158
search incident to arrest
exception to warrant
searching after arrest and finding something else
159
plain view
exception to warrant
anything they can see, "cocaine on car seat"
160
automobile exception
exception to warrant
"car smells like weed can be searched"
161
consent
exception to warrant
saying yes when they ask to search you
162
exclusionary rule
evidence that is obtained in violation of the constitution is inadmissible at trial
cannot be used against defendant
