Term
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Definition
| monetary damages that compensate the injured party |
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Term
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Definition
Rules that regulate conduct or individuals, businesses, and other organizations within society.
Intended to protect persons and their property from unwanted interference from others. The law forbids person from engaging in certain undesirable activities. |
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Term
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Definition
| Body of rules of action prescribed by the controlling authority and having binding legal force |
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Term
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Definition
Keeping the peace
Shaping moral standards
Promoting social justice
Maintaining the status quo
Facilitating orderly change
Facilitating planning
Providing a basis for compromise
Maximizing individual freedom |
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Term
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Definition
| Commercial laws can allow businesses to plan activities, allocate resources and assess their risks |
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Term
| Maximizing Individual Freedom |
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Definition
| Freedom of speech, religion and association granted by the 1st Amendment |
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Term
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Definition
| Philosophy or science of the law |
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Term
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Definition
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Term
Natural Law
(Schools of Jurisprudential Thought) |
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Definition
Law is based on what is correct
Law should be based on morality and ethics |
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Term
Historical School
(Schools of Jurisprudential Thought) |
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Definition
| Law is an aggregate of social traditions and customs |
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Term
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Definition
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Term
Sociological School
(Schools of Jurisprudential Thought) |
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Definition
| Law is a means of achieving and advancing certain sociological goals |
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Term
Command school
(Schools of Jurisprudential Thought) |
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Definition
| Law is a set of rules developed, communicated, and enforced by the ruling party. |
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Term
Critical Legal Studies School
(Schools of Jurisprudential Thought) |
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Definition
| Views legal rules as unnecessary, with legal disputes to be solved by applying arbitrary rules based on fairness |
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Term
Law and Economics School
(Schools of Jurisprudential Thought) |
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Definition
| Promoting market efficiency as the central concern of legal decision making |
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Term
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Definition
English system of law
Became the foundation from which American judges developed common law |
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Term
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Definition
based on precedent
developed by judges who issues their opinions when deciding cases |
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Term
Law Courts
(English Common Law) |
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Definition
Granted only monetary damages
Uniform system of courts |
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Term
Courts of Chancery (equity courts)
(English Common Law) |
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Definition
| Remedies shaped to fit each situation |
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Term
Merchant Courts
(English Common Law) |
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Definition
| Solved commercial disputes based on trade practices |
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Term
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Definition
Civil Code and parliamentary statutes (these expand and interpret Civil Code)
are the sole sources of law
Adjudication of a case is simply the application of the code+statutes to a particular set of facts
+In some civil law countries, court decisions do not have the force of law |
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Term
| Adoption of English Common Law in America |
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Definition
Law, Equity, and Merchant courts merged
Most allow law and equitable orders/remedies |
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Term
Constitution
(Sources of Law in the US) |
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Definition
Supreme law of the land
Enumerates federal powers and reserves all other powers to the states |
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Term
Treaties
(Sources of Law in the US) |
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Definition
President with advice and consent of the Senate may enter into treaties with foreign governments
Congress passes statutes to fulfill treaty requirements |
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Term
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Definition
| Statues (Congress: federal statutes, state: state) and Ordinances (local govt) |
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Term
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Definition
Issued by president and state governors
Power derived from express delegation from legislative branch or implied from constitutional powers |
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Term
| Regulations and Orders of Administrative Agencies |
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Definition
Empowered by leg + exec branches of govt to:
-adopt rules and regulations
-enforce statutes
-hear & decide disputes
Many regulate business (like SEC) |
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Term
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Definition
Courts decide controversies
Judicial decisions state the rationale used by the court |
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Term
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Definition
Past court decisions become precedent for deciding future cases
Lower courts follow the precedent established by higher courts
All must follow Supreme Court precedents
Courts in one jurisdiction don't have to follow another's precedents |
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Term
| Benefits/purpose of Stare Decisis |
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Definition
Uniformity
Efficiency
Predictability
Flexibility (may depart from precedent when warranted) |
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Term
| Priority of Law in the US |
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Definition
US Constitution and treaties > all other laws
Federal statutes > regulations
Federal law > state/local law
State constitutions > all other state law
State statutes > regulations
State law > local law |
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Term
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Definition
Supreme Court
Intermediate Appellate Courts
Limited- and General- jurisdiction trial courts |
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Term
Limited-jurisdiction trial courts
(State Court Systems) |
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Definition
Hear matters of specialized or limited nature
(Ex: traffic, juvenile, probate, family law, misdemeanor, small claims) |
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Term
General-jurisdiction trial courts
(State Court Systems) |
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Definition
Hear everything not within limited-jurisdiction
Record and store testimony and evidence |
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Term
Intermediate Appelate Courts
(State Court Systems) |
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Definition
Hear appeals from trial courts
Review trial court record for grounds for reversal
No new testimony or evidence |
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Term
Highest State Court
(State Court Systems) |
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Definition
Hears appeal from intermediate state courts AND certain trial courts
NO NEW TESTIMONY/EVIDENCE
Decisions are final unless Supreme Court appealable |
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Term
|
Definition
US Supreme Court
US Courts of Appeals
Special Federal Courts-US District Courts |
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Term
Special Federal Courts
(Federal Court System) |
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Definition
Hear matters of specialized or limited jurisdiction
-Tax Court
-Court of Federal Claims
-Court of International Trade
-Bankruptcy Court
-Court of Appeals for Armed Services
-" Veterans Claims |
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Term
US District Courts
(Federal Court System) |
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Definition
General Jurisdiction
-impanel juries
-receive evidence
-hear testimony
-decide cases
Most federal cases originate in federal district court
At least one district court in each state
Lifetime appointed judges |
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Term
US Court of Appeals
(Federal Court System) |
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Definition
Intermediate Appellate Courts
Hear appeals from the district courts located in their circuit
13 circuits
Lifetime appointments
3 judge panel or en banc (everybody)
Review the record of lower courts or admin agencies
determine if any errors make grounds for reversal/mod of court decision |
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Term
US Supreme Court
(Federal Court System) |
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Definition
Hears appeals from:
-federal circuit courts of appeals
-federal district courts under certain circumstances
-special federal courts
-highest state courts
No new evidence/testimony
9 judges, lifetime appntmnts
Lower court record reviewed for reversal/mod
100 cases each year
Unanimous, majority, plurality, or tie decision
Justices may concur or dissent
Decision is final |
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Term
Petition for Certiori
(Federal Court System) |
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Definition
| Petition asking Supreme Court to hear case |
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Term
Writ of Certiorai
(Federal Court System) |
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Definition
| Official notice Supreme Court will review a case |
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Term
| Federal Court System II Ch2 Slide18! |
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Definition
US Supreme Court
/\
US Courts of Appeals
Federal Admin Agencies
US District Courts /\ US Bankruptcy Courts
US Tax Court
US Courts of Appeals for the Federal Circuit
US Claims Court
Court of Internatl Trade
Patent and trademark office |
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Term
| Jurisdiction of Federal Courts |
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Definition
Federal Questions
-US Constitution
-Treaties
-Federal Statutes/Regulations
Diversity of Citizenship
-at least $75k in controversy |
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Term
| Jurisdiction of State Courts |
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Definition
Cases that federal courts do not have jurisdiction to hear
Matters involving state law
-Real Estate
-Business Law
-Sales and Lease agreements
-Negotiable instruments |
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Term
| Exclusive Federal Jurisdiction |
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Definition
Admiralty
Antitrust
Bankruptcy
Copyright
Rederal Crimes
Patents
Suits against the US
Specificed federal statutes |
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Term
Concurrent Jurisdiction
(Jurisdiction of Federal and State Courts) |
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Definition
Federal questions
Diversity of citizenship |
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Term
| Personal Jurisdiction of Courts |
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Definition
Standing to sue: Plaintiff must have a stake in the outcome of case (can't sue for a friend)
Jurisdiction:
Venue |
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Term
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Definition
personal jurisdiction exists over any plaintiff who files a lawsuit
personal jurisdiction exists over defendant who is within the boundaries of the state
Corporations are subject to personal jurisdiction in any state where it is incorporated/has office/does business |
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Term
| Serving summons on a defendant |
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Definition
personal service
mailing
publication |
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Term
|
Definition
Allows state courts to obtain personal jurisdiction over persons/businesses in another state
-must have minimum contacts with state |
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Term
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Definition
1 Jurisdiction over the property of the lawsuit within state borders
2 Attached property located in another state |
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Term
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Definition
Court near location in which incident occured/parties reside
-Appropriate venue may be in question, but for crimes, the app venue is where the crime was committed
Change of venue may be motioned to avoid pre-trial publicity which can prejudice jurors |
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Term
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Definition
| Parties may specify in a contract what court to use |
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Term
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Definition
| Parties may specify which state/country's law will apply to the contract |
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Term
|
Definition
Complaint
Answer
Cross-Complaint
Reply |
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Term
Complaint and Summons
(Pretrial Litigation Process) |
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Definition
Plaintiff files:
-Lists parties
-Alleges facts and laws violated
-Prayer for relief
Court issues summons
-Directs defendant to appear and answer |
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Term
Answer
(Pretrial Litigation Process) |
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Definition
Defendant must file an answer to the summons
-Admit or deny allegations
-State affirmative defenses
*If all allegations admitted, judgment is entered against def
*If no answer filed, default judgment entered |
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Term
Cross-Complaint and Reply
(Pretrial Litigation Process) |
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Definition
Defendant may sue plaintiff for damages
Original plaintiff must file a reply and serve on defendant |
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Term
Intervention and Consolidation
(Pretrial Litigation Process) |
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Definition
1 Other parties with an interest in the lawsuit become parties to the lawsuit
Ex: bank with security interest in property that is subject of lawsuit
2 Several plaintiffs filing lawsuits based on the same situation will consolidate cases if no undue prejudice is imminent |
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Term
E-Filing
(Pretrial Litigation Process) |
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Definition
| Virtual courthouse allows e-filing of documents |
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Term
|
Definition
Establishes the period during which plaintiff must bring a lawsuit against a defendant
2 years for torts |
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Term
Discovery
(Pretrial Litigation Process) |
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Definition
| Both parties discover facts of the case from the other party and witnesses prior to trial |
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Term
Purposes of Discovery
(Pretrial Litigation Process) |
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Definition
-Prevent surprise
-Allows both parties to prepare
-Preserves evidence
-Saves court time
-Promotes settlement of case |
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Term
Forms of Discovery
(Pretrial Litigation Process) |
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Definition
Depositions: oral testimony
Interrogatories
Production of documents
Physical and mental examination |
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Term
Depositions
(Pretrial Litigation Process) |
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Definition
By parties or witnesses
Under oath
Parties must give depositions
Witnesses may be subpoenaed
Evidence may be preserved by court reporter or video tape
May be used to impeach testimony at trial |
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Term
|
Definition
Written questions submitted by one party to the other
Must be answered within a set time period
Answers affirmed under oath |
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Term
|
Definition
Documents that parties request the other side to produce / make available for review
EG company records, correspondence, memoranda
discoverable if may lead to admissable evidence |
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Term
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Definition
| If the physical or mental condition of a party is in question, an examination by an expert may be required |
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Term
Dismissals and Pretrial Judgments
(Pretrial Litigation Process) |
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Definition
Pretrial Motions
Motion for Judgment on the Pleadings
Motion for Summary Judgment |
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Term
Motion for Summary Judgment
(Dismissals and Pretrial Judgments) |
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Definition
Asserts there are no factual disputes to be decided by the jury
judge can apply the proper law to these facts and decide the case w/o a jury
Motion is supported by affidavits, documents, and deposition |
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Term
Motion for Judgment on the Pleadings*
(Dismissals and Pretrial Judgments) |
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Definition
| Even if all facts presented in pleadings are true, the party making the motion would win the lawsuit when the proper law is applied to these facts |
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Term
Pretrial Motion
(Dismissals and Pretrial Judgments) |
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Definition
Motion a party can make to try to dispose all or part of a lawsuit prior to trial
-Motion for judgment on the pleadings
-Motion for summary judgment |
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Term
|
Definition
Federal court rules and most state rules allow for this
Occurs in judge's chambers
**At least 95% of all cases are settled before trial** |
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Term
| Cost Benefit Analysis of a Lawsuit |
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Definition
Consider:
-Probability of winning or losing. Never certain.
-Amount of money to be won or lost
-Lawyers' fees and other costs of litigation
-Loss of time by managers and other personnel
-Effect on relationships and reputation
-Aggravation, psychological costs |
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Term
|
Definition
7th Amendment guarantees the right to a jury trial in cases in federal court
Most state constitutions contain a similar guarantee for state court actions |
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Term
|
Definition
Jury Selection
Opening Statements
Plaintiff's Case
Defendant's Case
Rebuttal and Rejoinder
Closing Arguments
Jury Instructions
Jury Deliberation
Entry of Judgment |
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Term
|
Definition
Civil: Either party can appeal, but only once a final judgment is entered
Criminal: only defendant can appeal |
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Term
|
Definition
Made to the appropriate appellate court according to timetable set by procedural rules
Appellate court will reverse lower court for errors of law. Will reverse finding of fact only if it is unsupported by any evidence.** |
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Term
| Alternative Dispute Resolution (ADR) |
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Definition
| Methods of resolving disputes other than litigation, because lawsuits can be expensive and difficult |
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Term
Arbitration
(Alternative Dispute Resolution) |
|
Definition
Common in commercial and labor disputes
Parties choose neutral third party to hear evidence and testimony and decide the case
Arbitrator makes a decision and enters an award
Can be binding or non-binding |
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Term
| Key ADR Legislation (about arbitration) |
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Definition
Uniform Arbitration Act
-Adopted by half of the states
-Promotes the arbitration of disputes at the state level
Federal Arbitration Act
-Arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts. |
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Term
|
Definition
Parties choose a neutral third party to assist them
Parties reach settlement
Mediator does not make judgment or issue award |
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Term
|
Definition
| Parties use an interested third party to act as mediator |
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Term
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Definition
| Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute |
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Term
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Definition
| Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides |
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Term
How are judges selected in federal systems?
How are judges selected in state systems? |
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Definition
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Term
|
Definition
Defendant is innocent until proven guilty
The burden of proof rests on the government
Defendant must be proven guilty beyond reasonable doubt |
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Term
| Penal Codes and Regulatory Statutes |
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Definition
Statutes: source of criminal law
Penal codes and regulatory statutes define in detail the activities that are considered crimes and the associated penalties |
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Term
|
Definition
-most crimes against people are felonies
--also certain business related crimes
-punishable by imprisonment
-mandatory sentencing for some
-may be "mala in se" = inherently evil |
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Term
|
Definition
-mala prohibita: not inherently evil, but prohibited by society
ex: crimes against property
Punishable by fines and imprisonment up to one year |
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Term
|
Definition
Everything that's not a felony or a misdemeanor
Fines or maybe few days in jail |
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Term
|
Definition
Everything that's not a felony or a misdemeanor
Fines or maybe few days in jail |
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Term
|
Definition
Requires criminal intent and action upon that intent
Actus reus: actual performance of the guilty act |
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Term
| Criminal Intent (Mens Rea) |
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Definition
Specific: purposefully, intentionally or with knowledge commits a prohibited act
General: recklessness or lesser degree of intent
Non-intent: imposes criminal liability without a finding of mens rea |
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Term
|
Definition
Arrest
Indictment or Information
Arraignment
Plea Bargaining
Criminal Trial |
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Term
|
Definition
--accused informed of all charges
--asked to enter guilty or not guilty plea
--Nolo contendere: plea which does not admit guilt but agrees to penalty and cannot be used as evidence of liability |
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Term
| Indictment or Information |
|
Definition
--serious crimes: indictment by grand jury
--lesser crimes: information by magistrate |
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Term
|
Definition
--may plead to a lesser crime
--why? saves money and time, avoids risk of trial -> very common |
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Term
|
Definition
--verdict must be unanimous
--cannot be found guilty if there is reasonable doubt
--if jurors cannot agree, this results in a hung jury and the government may retry the case |
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Term
| Corporate Criminal Liability |
|
Definition
1 Corporations may be held criminally liable for actions of their officers, employees or agents
2 Corporate directors, officers, and employees are personally liable for the crimes they commit while acting on behalf of the corporation and may be criminally liable for the criminal activities of subordinates |
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Term
|
Definition
| Makes it a federal crime to participate in the affairs of an enterprise through a pattern of racketeering activity |
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Term
|
Definition
| Injured parties seek compensation for a wrong done to the party or party's property |
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Term
|
Definition
Include unauthorized touching, restraint or other contact
Violation of a person's reputation or privacy
Assault
Battery
False Imprisonment
Misappropriation of the Right to Publicity
Defamation of Character |
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Term
Assault
(intentional torts) |
|
Definition
| Threat of immediate harm or offensive contact or arousing reasonable apprehension of imminent harm |
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Term
Battery
(intentional torts) |
|
Definition
Direct unauthorized and harmful/offensive contact with another person
Can accompany assault |
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Term
| Misappropriation of the Right to Publicity |
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Definition
| Attempt by another person to appropriate a living person's name or identity for commercial purposes |
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Term
Disparagement
(intentional torts) |
|
Definition
| Untrue statments made about products or reputation of a business |
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Term
|
Definition
| A person is liable for harm that is the foreseeable consequence of his actions |
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Term
Negligence
(Unintentional torts) |
|
Definition
Omission to do something which a reasonable person would do
OR
doing something a reasonable person would not do |
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Term
Intentional Infliction of Emotional Distress
(intentional torts) |
|
Definition
| Defendant's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person |
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Term
Malicious prosecution
(intentional torts) |
|
Definition
must be: Frivolous lawsuit maliciously brought
So the defendant sues the original plaintiff to recover damages for injuries
*difficult to prove |
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Term
Elements of Negligence
(unintentional torts) |
|
Definition
The defendant owed a duty of care to the plaintiff
Defendant breached the duty of care
Plaintiff suffered injury
Defendant's negligent act caused the injury |
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Term
|
Definition
| obligation not to cause any unreasonable harm or risk of harm |
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Term
|
Definition
Failure to act as a reasonable person would act
Ex: speeding, camper throwing a lit match on ground in forest |
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Term
Injury to Plaintiff
(elements of negligence) |
|
Definition
Personal injury or damage to property
if no injury, can't recover damages, even if defendant acted recklessly |
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Term
Causation
(elements of negligence) |
|
Definition
Causation in Fact (actual cause: "but for the defedant's negligent act, injury would not have occurred")
Proximate Cause (legal cause: defendant is liable only for foreseeable consequences) |
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Term
|
Definition
| Liability of a professional who breaches his or her duty of ordinary care/reasonable professional standard |
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Term
|
Definition
Violation of a statue that proximately causes an injury
-Statute must have been enacted to prevent the type of injury suffered |
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Term
|
Definition
"The thing speaks for itself"
Defendant had exclusive control of situation that caused plaintiff's injury
Injury would not have occurred but for someone's negligence |
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Term
Superseding or Intervening Event
(defenses against negligence) |
|
Definition
An event for which the defendant is not responsible caused the injury
Ex: victim of car accident struck by lightning while waiting for ambulance |
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Term
|
Definition
Liability without fault
A participant in a covered activity will be held liable for any injuries caused by the activity regardless of if the defendant was actually negligent or not
ex: storage of explosives, keeping wild animals as pets
Why? certain activities place the public at risk even if reasonable care is taken, so strict liability allows the public to have some means of compensation if such injury occurs |
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Term
|
Definition
| Liability of manufacturers, sellers and others for the injuries caused by defective properties |
|
|
Term
Negligence
(product liability) |
|
Definition
| Negligent product design, failure to assemble properly, failure to inspect, failure to warn |
|
|
Term
Misrepresentation
(product liability) |
|
Definition
| Seller fraudulently conceals a defect or misrepresents quality |
|
|
Term
| Strict Liability in Product Liability |
|
Definition
Injured person does not have to prove that the defendant breached a duty of care
-so a company is still liable even if all possible care was exercised |
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Term
|
Definition
Punitive damages are allowed if the defendant
1 Intentionally injured the plaintiff
OR
2 Acted with reckless disregard |
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|
Term
| Comparative Negligence (pg 91) |
|
Definition
| Damages are apportioned according to fault |
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