Term
| Legislative v. Executive v. Judicial Branches of government in terms of law |
|
Definition
Legislative: Make Laws/Amend Old Laws
Executive: agency regulations, enforce existing laws
Judicial: interpret constitution other existing laws |
|
|
Term
Functions of the US Court System (3 areas)
AIR |
|
Definition
Administer state and national laws
Interpret intent of law when deciding a case
Resolve disputes among parties |
|
|
Term
|
Definition
| Appeal to lower courts for information regarding a case after a supreme court decision; the last attempt at appeal for a case |
|
|
Term
|
Definition
Means: "Let the decision stand"
In common law, abide by decided cases; can't change cases that have already been through the process, so we base new cases on old cases |
|
|
Term
|
Definition
| a rule established in an earlier case that is to be followed by a court of the same or lower rank in a subsequent case presenting the same legal problem |
|
|
Term
| injunction-specific performance |
|
Definition
| a court order for a person to do or refrain from doing certain acts |
|
|
Term
|
Definition
| a decision by a court without a full trial based on previous cases; can lead to settlements |
|
|
Term
| Types of Monetary Judgments (4) CCAP |
|
Definition
Compensatory: to replace losses: wages, etc.
Consequential: damages from pain/suffering
Punitive: punishment for willful behavior
Attorney Fees: rarely granted ex in civil rights cases |
|
|
Term
|
Definition
| a third party decision of a case where sides are presented and both sides agree that the decision of the third party is binding (form of ADR) |
|
|
Term
|
Definition
| civil or wrongful act, whether intentional or accidental from which injury occurs to another |
|
|
Term
|
Definition
| Duty of Care, Act to breach the duty, Proximate Cause, Damage or harm done |
|
|
Term
|
Definition
| Inherent relationship, voluntary assumption of duty, duty mandated by statute |
|
|
Term
| Causation (element of negligence) |
|
Definition
| Must be reasonably close connection between conduct and the resulting injury: use "but for" test |
|
|
Term
|
Definition
| Economic Loss, Physical Pain and Suffering, Emotional Distress, Physical Impairment (permanent damage) |
|
|
Term
| Respondant Superior/Vicarious Liability |
|
Definition
| Employers held liable for employees, except for ultra vires act, where an employee acted out of the scope of their employment |
|
|
Term
|
Definition
| If you contributed to your negligence you cannot have a claim of negligence against the defendant |
|
|
Term
| primary v. secondary assumption of risk |
|
Definition
Primary: the plaintiff has either expressly or impliedly relieved the defendant of the duty to mitigate or relieve the risk causing the injury from which the cause of action arises.
Secondary: the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty—the doctrine is merged into the comparative fault |
|
|
Term
| 3 ways to prove breach of duty |
|
Definition
1. Direct evidence of negligence
2. Violation of a statute
3. Res ipsa loquitur-the thing speaks for itself ex. elevator malfunction |
|
|
Term
|
Definition
Special relationship in situation (player to coach)
Voluntary Assumption of Duty (pull over to help injured)
Duty mandated by law (mother and child) |
|
|
Term
| patent v. latent defects in a premises |
|
Definition
| patent is obvious latent is hidden |
|
|
Term
|
Definition
Assault: The threat of force (non-contact)
Battery: The use of force (contact) or an offensive act |
|
|
Term
|
Definition
| Between negligence and intentional tort: intentionally performed act but didn't mean to cause harm; should have known inherently that actions would cause harm |
|
|
Term
| 2 essential elements of a crime |
|
Definition
actus reus: "guilty act": voluntary, concious
mens rea: "guilty mind": knowingly recklessly negligent |
|
|
Term
|
Definition
| Examines extent of government's involvement in a situation or organization. Entanglement, and therefore state action jurisdiction exists if government is substantially involved with an orgnaization |
|
|
Term
| Public Function Theory (Determines State Action) |
|
Definition
| Examines the type of conduct in which an organization participated; if conduct is normally reserved for the govt. the govt. more likely to have a say in the outcome of a situation in court EX. American Telephone Company |
|
|
Term
|
Definition
courts will not intervene in the internal affairs of private, voluntary organizations which govern professional and amateur sport UNLESS:
1. Individual's constitutional rights are violated
2. The organization violates a law
3. Rules are applied in an arbitrary or capricious manner |
|
|
Term
|
Definition
1. Action in question caused an injury
2. The interest to be protected is a constitutional right of which the court can present a solution
3. The plaintiff must have an interest in the outcome |
|
|
Term
|
Definition
| issued to those that monetary compensation would bring no right to the situation. 4 types: Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, Specific Performance |
|
|
Term
| Preliminary Injunction (4 requirements) |
|
Definition
1. there is a substantial likelihood of success on the merits of the case
2. they face a substantial threat of irreparable damage or injury if the injunction is not granted
3. the balance of harms weighs in favor of the party seeking the preliminary injunction
4. the grant of an injunction would serve the public interest |
|
|
Term
|
Definition
| Requires same 4 elements of a preliminary injunction, but results in a permanent decision |
|
|
Term
|
Definition
| requires one of the parties of a contract to perform certain actions. EXCEPTIONS: cannot refute previously agreed upon terms in a contract; does not apply to servitude |
|
|
Term
| Due Process: definition and violation |
|
Definition
An expected course of legal proceedings that are owed to a person according to the law. In order to be violated:
1. Have to have State Action in the case
2. Rights have to have been deprived
3. Due process right must have been violated by substansive (was it a fair rule) content or procedural (was the rule applied fairly) content |
|
|
Term
| Substansive Due Process: 2 requirements for a rule |
|
Definition
1. Does it have a proper purpose?
2. Does it clearly relate to the accomplishment of that purpose? |
|
|
Term
| Procedural Due Process (2 main requirements) |
|
Definition
| 1. Right to a hearing 2. Notice of the hearing's time, date, and content |
|
|
Term
|
Definition
| Strict Scrutiny, Intermediate Scrutiny, Rational Basis Review |
|
|
Term
|
Definition
| challenged rule must be necessary and compelling to the state interest. Strict Scrutiny groups include race, national origin and allegiance; Only way law will be upheld is if it is necessary to achieve an objective, and it MUST be done |
|
|
Term
|
Definition
| law must be substantially related to achieve an important governmental interest; quasi-suspect class at risk including gender |
|
|
Term
|
Definition
| Applied to all groups that aren't suspects or quasi-suspect; test whether law is reasonably related to a legitimate government interest |
|
|
Term
|
Definition
| controlling the financial and personal injury losses from sudden unforseen, unusual accidents and intentional torts |
|
|
Term
| Goals of Risk Management (4) |
|
Definition
1. Minimize risk of injury to patrons
2. Reduce litigation potential
3. Minimize financial loss
4. Provide a defense in case of litigation |
|
|
Term
| Lemon Test (establishment clause v. freedom of speech test) |
|
Definition
govt practice is unconstitutional if it
1.lacks a secular practice
2. either advances or inhibits religion
3 excessively entangles govt. with religion |
|
|
Term
| Coercion Test: (establishment clause v. freedom of speech test) |
|
Definition
| A practice is unconstitutional when govt. directs a formal religious exercise in such a way as to oblige the participation of individuals (Ex. Santa Fe ISD v. Doe where students wanted prayer on loudspeaker prior to game, but everyone would have had to hear it) |
|
|
Term
|
Definition
| when government conveys that religion is favored preferred or promoted over other beliefs (ex. Williams v. Eaton where players wanted to wear armbands to show support against muslims. Not allowed) |
|
|
Term
| Balancing Test in drug tests and searches |
|
Definition
1. Is there a legitimate privacy expectation?
2. Character of the intrusion-how were the samples tested and who will see the results?
3. Nature and immediacy of concern- is state's interest in conducting the test important enough to invade on sense of privacy? |
|
|
Term
|
Definition
| civil violation that causes damage to reputation; diminishes esteem goodwill confidence that the plaintiff previously held |
|
|
Term
| Elements of a Defamation Claim (4 elements) |
|
Definition
1. A false and defamatory statement (if the statement is true, no defamation)
2. Information must be published to a 3rd party
3. Fault or negligence of publisher
4. Actual damages |
|
|
Term
|
Definition
| Includes (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct. Plaintiff need only prove that someone had published the statements to any third party. No proof of special damages is required. |
|
|
Term
|
Definition
| Both the plaintiff and the defendant are negligent, divides the responsibility between the two negligent parties |
|
|
