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Midterm 1
Midterm lecture notes
98
Management
Undergraduate 2
10/26/2011

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Term
Amendment 4
Definition
The right of people to be secure in their persons, houses, papers and effects against unreasonable search and seizures, shall not be violated and no warrants issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized
Term
Exceptions to Amendment 4
Definition
Consensual searches
Stop and frisk searches (supported by probable cause)
Border Searches
Hot pursuit
Airport and courthouses searches
Term
Case in controversy
Definition
you cant ask a judge about legality unless you are fighting it
Term
Three part test to determine legality of a search
Definition
Public necessity
efficacy of search (ease)
Intrusion (level of intrusion to person)
Term
natural law
Definition
a higher and eternal law (life liberty and property rights)
Term
Positive Law
Definition
those laws necessary to regulate an ordered society (road laws)
Term
House of Representatives (legislative branch)
Definition
2 year terms
Make laws
declare war
establish courts
over-ride veto
impeachment
Term
Senate (legislative branch)
Definition
6 year term 2 senators per state
Confirm supreme court justices
confirm cabinet
over-ride veto
impeachment trials
Term
President (Executive branch)
Definition
Electoral college
veto
appoint federal judges
executive orders
commander in chief of military
appoints cabinet
Presidential pardons
Term
Common law
Definition
Judge made law - the ruling from a case from the court of appeals and creates a precedent
Term
Trial court
Definition
decide facts and then apply law
must be case in controversy
Term
appellate courts
Definition
decide if the trial courts applied correct law.
interpret the law
Term
Precedent
Definition
the decisions of an appellate court is binding upon lower courts
Term
Stare decisis
Definition
the idea that once a major decision is made, it should not be re-examined unless extraordinary circumstances exist
Term
Judicial review
Definition
the power of the supreme court and the inferior courts to declare and act of congress, state or local government unconstitutional and thus void, if it violates the constitution
Term
Judicial Branch
Definition
9 judges
life time term
appointed by president
Term
Administrative agencies
Definition
agencies that take the WILL of Congress and carries those wishes out through executive type administration
--Created by Congress who passes enabling legislation and then is signed by the president
**Part of executive branch
Term
Operation of Administrative agencies
Definition
Investigate
Enforce
rulemaking and regulations
adjudication (settlement other than litigation)
Term
Federalism
Definition
the political arrangement in which two or more levels of government provide a variety of services to a given number of citizens in a specified area, and how the power to enforce governmental decisions is shared among these governing agencies
Term
Commerce Clause
Definition
Article 1 section 8 Federa government power to "Regulate commerce... among the several states."
Supreme court has the power to regulate any activity that affects interstate commerce
Term
Police Power
Definition
10th amendment reserves the right to the state the police power, the power to enact laws for the prevention of crime and promote safety and health of people
Term
Supremacy Clause
Definition
When federal and state laws overlap a specific subject matter, Federal law trumps state and local law
Term
Appellate courts - civil suit
Definition
people asking for money
Burden of proof - preponderance of the evidence
Term
Appellate courts - criminal
Definition
Prosecuting somebody for a crime - may only be initiated by some level of government
burden of proof - beyond a reasonable doubt
Term
Actions in equity
Definition
asking the court of a civil case to order the defendant to do something
Term
Jurisdiction
Definition
Case must be filed in appropriate jurisdiction
-political
- subject matter
- person or property
Term
Statute of limitations
Definition
must file case in appropriate court in limited time or automatic loss
Term
in personam jurisdiction
Definition
court must have jurisdiction over person (must be served with a summons and complaint)
Term
In rem jurisdiction
Definition
a court always has jurisdiction over property within its geographic boundaries
Term
Process server
Definition
someone that provides services (serves the summons and complaint)
Term
Long arm statute
Definition
allows you to be sued by someone of another state if your conduct injured another person
Term
Diversity Jurisdiction
Definition
Plaintiff and defendants living in different states may move a lawsuit begun in state court to federal court if the amount in controversy exceeds $75,000
Term
Substantive law
Definition
the elements of the lawsuit
Term
procedural law
Definition
the rules of how the game of lawsuits are played
Term
Venue
Definition
location of trial once there is jurisdiction established
Term
Forum non conveniens
Definition
the proper court is inconvenient for the litigation and the case should be held elsewhere
Term
fiduciary relationship
Definition
Licensing of lawyers because they hold money for clients
Also to keep fees lower
Term
Pro Se
Definition
the ability to represent yourself
Term
the adversary system
Definition
Each side tries to win, each side brings forward the points that support his view and undermine the points made by the opposing party. Each side is responsible for bringing forward information that helps it, but also must inform court of contrary legal authorities
Term
Lawyer Ethics
Definition
licenses may be revoked for violation of rules or professional misconduct
(disembarment, suspension of practice, probation or censure)
Term
The attorney client privilege
Definition
all communications made to an attorney must remain confidential, unless intent to commit future crime
Privelages do not apply to the threat of future harm
Survives the death of clients
does not exist if others are present
If client admits guilt the attorney cannot then put the client on the witness stand to lie
Term
Work product doctrine
Definition
attorney client privilege extends to all works created as part of a case
Term
Summons
Definition
the invitation to the lawsuit
Term
Complaint
Definition
a brief declarative statement of the allegations and request for relief
Term
Answer
Definition
the defendant must respond to the summons and complaint by filing an answer, which is point by point. Admitted or denied.
Term
Counterclaim
Definition
included in answer in which the defendant asserts his/her own claim for relief
Term
default judgement
Definition
Motion to dismiss. If you don't file your answer within the appropriate time you will automatically lose by default
Term
Pleadings
Definition
all documents that are filed with the court are referred to as pleadings
Term
Motion to dismiss for failure to state a claim
Definition
a defendant may after being sued and answering request that the court throw out the case because the plaintiffs allegations, even if true would not entitle him to win under the law
Term
Pretrial discovery - Subpoena
Definition
a demand to see, or have produced documents, objects reports medical charts etc
Term
Pretrial discovery - interrogatory
Definition
a set of written questions, prepared by the opposing side which must be answered under oath and in writing
Term
Pretrial discovery - Deposition
Definition
opposing attorney asks you under oath face to face with a court reporter
Not allowed of defendant in criminal case
Everything said can be produced at trial
Term
Summary Judgement Motion
Definition
after discovery process is complete there may be no disputes concerning what the facts are. If this sis the case there is no need (in a civil case) for a jury and the judge can apply the law.
Available to both sides in civil case only defendant in criminal case
Term
Jury
Definition
whether a case gets a jury is determined by federal and state laws. Civil cases for money damages gets a jury if the total is significant enough
Right to jury in criminal cases
Term
Voire dire
Definition
the process of selecting a jury
Term
Challenged for cause
Definition
an attorney can excuse a juror if they have bias or cannot otherwise be fair and impartial
Term
Peremtory Challenge
Definition
Attorneys may excuse 6 jurors for any reason
Term
Opening statements
Definition
summary of what the evidence is
Term
Direct examination
Definition
Elicit direct testimony from witnesses
Ask non leading questions
Term
Relevant evidence
Definition
judge determines admissibility of evidence
Term
Objection
Definition
a dispute concerning the presentation of evidence
Sustained - agrees
Objection - overruled
Term
Cross examination
Definition
the opposing party can question the witness
Leading questions
Term
Motion to dismiss for failure to make a prima facie case
Definition
plaintiff failed to prove a fact, or the facts proven were not enough to suffice the burden of proof
Term
Closing arguments
Definition
lawyers have the opportunity to argue their cases before the jury
Term
Collections
Definition
Garnishments - taking money from paycheck
Order of examination - deposing the defendant where his assets are
Bankruptcy
Term
Appellate procedures
Definition
Affirm
Reverse
Modify
Leave some things intact while reversing others
Term
Mediation
Definition
a neutral third party assists the litigants in reaching a resolution, Frequently required in contracts
Term
Arbitration
Definition
Binding or voluntary. a mini-trial to a neutral judge whose decision is binding. Decision is more a compromise
Arbitrators are usually lawyers
Term
Neutral case evaluation
Definition
A knowledgeable third party assesses the case for the parties and offers an opinion
Term
Mini trials
Definition
non binding trial before a neutral party which issues an advisory decision which the parties use to resolve their problem
Term
Private trials
Definition
similar to arbitration the referees report goes to the court and then they can decided if they want a full trial or not
Term
Summary jury trials
Definition
short trials, purely advisory verdict that is not binding
Term
Due process
Definition
fundamental fairness
Term
The incorporation doctrine
Definition
The Bill of Rights binds both the federal and state governments since Liberty and Due process are so expansive
Term
2 part test of expressive Communication (1st amendment)
Definition
1. intent to communicate a particular message and whether the messsage was likely to be understood by those who view it.
2. court will then consider whether the government regulation or law was in any way related to the suppression of free speech
Term
real property
Definition
land and everything permanently attached to it
Term
Fee simple
Definition
I own my house
Term
Conditional estate
Definition
rent or lease
Term
Life estate
Definition
occupancy until death and then passed on
Term
Easement
Definition
permanent or for a set duration of time the ability to use land
Term
eminent domain
Definition
the right for the government to take your property for fair compensation
Term
Prescriptive easement
Definition
if somebody were to use your land for a long time and you didn't complain about it they would eventually get a legal permanent right to continue doing this
Term
Restrictive Covenants
Definition
Restricting certain people from living places
*cant be based on race
saying residents must be 55 is okay
Term
Intellectual property
Definition
any property that results from intellectual, creative process
Term
trademarks
Definition
distinctive marks, words, designs, pictures or arrangements used by the producer of a product to allow consumers to identify and link the product with the producer
protected under Common law
must be registered with US patent office, must be distinctive
Can be registered if currently in use or intends to be used in next 6 months
Term
Federal trademark dilution act 1995
Definition
1. created a federal cause of action for violation of the statute
2. regardless of whether the products competed with each other
3. eliminated the requirement that 'confusion' be demonstrated
4. must be some evidence that the infringing mark lessons the value of the famous mark
*injunctive relief = demand to stop
Term
trade dress
Definition
a distinctive nonfunctional feature, which distinguishes a merchant's or manufacturer's goods or services from those of another
Two basic requirements the must be met for trade dress protection:
1. must be capable of functioning as a source indicator
2. must also be nonfunctional
Term
trade secrets
Definition
a process, product or method of operation or compilation of information used in business that is not commonly known to the public and may provide a competitive advantage
To sue over trade secrets must prove
1. a trade secret actually exists
2. the defendant acquired it though unlawful means
3. the defendant used it without the plaintiffs permission
Term
Patents
Definition
protect products, processes, inventions, machines or asexaully reproducing plants
MUST be: novel, useful and non obvious
Cannot be patented: laws of nature, natural phenomenon, and abstract ideas
14 yeas for designs 20 years for inventions
Term
O'Connor
Definition
Anti-terrorism
"A State of war is not a blank check for the president when it comes to the rights of the nations citizens"
Alliance with Breyer
Ultimate pragmatist, practical
Key in Planned Parenthood
Term
Scalia
Definition
Originalist - does not believe in living Constitution
Extreme Conservative
2008- majority opinion on gun ruling (overturned DC gun law)
Term
Breyer
Definition
Idea of workable constitution
Democrat
Alliance with O'Connor
Term
Souter
Definition
Judges are products of their upbringings...The hard questions are those that pit one part of the Constitution against other parts
Believes that law existed to preserve the stability of society and that adherence to precedent best guaranteed a limited and predictable role for the judiciary.
Rule of stare decisis/Common Law
Harvard Commencement Speech
Term
Stevens
Definition
Liberal
Term
Kennedy
Definition
Must rule on law and not let bias stand in the way
Term
To condemned as obscene
Definition
1. Average Person
2. Contemporary community standards
3. work taken as a whole applies to the purient interest
4. work is offensive sexual conduct proscribed by state law
5. taken as a whole, is lacking artistic/political/scientific value
Term
Roberts
Definition
Judges are like umpires. Don't make the rules but apply them
Term
copyrights
Definition
the exclusive legal right to reproduce, publish and sell the fixed form of expression or an original creative idea
To obtain a copy right
1. idea must be fixed
2. creative
3. original
4. must carry appropriate notice
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