Term
| 2 Major Approaches to teaching and study of Law |
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Definition
1: Rule-Oriented Approach- consisting of the rules that are in effect within a state or nation at a given time
Process-oriented Approach- the process by which the rules and principles are formulated
*Law is both, the only difference is in the emphasis |
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Term
| Requisites of a Legal System (Characteristics that a legal system must possess) |
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Definition
| 1. Relatively Certain 2. Relatively Flexible 3. Known or Knowable 4. Apparantly Reasonable 5. Have Sanctions |
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Term
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Definition
| Of England: The law is created or refined by judges based on previous cases; when no previous case exists, the common law judge is free to make law by creating precedent; these precedents are then used in future decisions; Used in countries descendant from England |
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Term
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| the state and federal statues in effect at a given time; rules that have been formally adopted by legislative bodies rather than by the courts (same as written law) |
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| the laws that spell out the rights and duties existing among individuals, business firms and sometimes even government agencies; usually seeking damages; must be proved by "a preponderance of the evidence" |
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| a court degree ordering the defendant to do or not to do some particular thing |
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| Those statues by which a state or federal government prohibits specified kinds of conduct and which additionally provide for the imposition of fines or imprisonment on persons convicted of violating them; must be proved "beyond a reasonable doubt" |
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| a crime for which the legislature has provided a maximum penalty of either imprisonment for more than a year or death/crimes carrying lesser penalties |
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Term
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Definition
| 1. Myth of one right answer- The law is not an exact science 2. Myth of Judicial Eccentricity- rules aren't so esoteric and arbitrary that the results are not in keeping with reality or with what a reasonable person would expect |
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Definition
| The law seeks to give justice to the most areas possible in each case, even though it is impossible to make everyone happy |
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Term
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Definition
when a judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved. Three types of disputes are resolved through adjudication:
1. Disputes between private parties, such as individuals or corporations.
2Disputes between private parties and public officials.
3. Disputes between public officials or public bodies. |
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Definition
| 1. Courts of Limited Jurisdiction 2. General Trial Courts. 3. Appellate Courts |
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Term
| Courts of Limited Jurisdiction (State) |
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Definition
| courts that are limited by the types of cases they can hear; Ex: Traffic Courts |
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Term
| General Trial Courts (State) |
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Definition
| COurts of "general jurisdiction"- empowered to hear all cases except those expressly assigned by statue to the courts of limited jurisdiction |
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Term
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Definition
| hear appeals from judgments entered by the courts below; do not hear testimony of witnesses or otherwise entertain new evidence |
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Term
| 3 Types of Federal Courts |
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Definition
| 1. specialized trial courts 2.. US district courts 3 Appellate courts |
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Term
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Definition
| the legal power of a governmental body or official to take some sort of action |
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Term
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Definition
| Occurs when: the plaintiff and defendant are citizens of different states; one party is a citizen of a state and one is a citizen of another nation; only if there is no common state citizenship on opposite sides of the case |
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Term
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Definition
| If the plaintiff chooses state court, the defendant may have this right; has it in any federal question case |
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Term
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Definition
| the court's jurisdiction over the parties to the case |
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Term
| Procedural Due process (4 steps) |
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Definition
1. Adequate Notice
2. A meaningful opportunity to be heard
3. An Impartial Decision Maker
4. substantial contact between the defendant and the state in which the lawsuit has been filed |
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Term
| Appearance vs. Special Appearance |
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Definition
| First is the taking of any formal steps to defend a case Second is a motion or other formal action taken by the defendant solely for the purpose of challenging the court's personal jurisdiction |
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Term
| General Personal Jurisdiction |
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Definition
| when the nonresident has "substantial continuing contacts" with the forum state |
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Term
| Specific Personal Jurisdiction |
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Definition
| If the nonresident defendant has intentionally engaged in a specific act in the forum state or targeted at the forum state and if the dispute arises out of that specific contact, there is a basis for this |
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Term
| Doctorine of Forum Non Conveniens |
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Definition
| the court may choose to transfer the suit or even dismiss it, forcing the plaintiff to file in the more convenient court; can also be applied internationally |
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Term
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Definition
| an order addressed to the defendant requiring that person either to pay money or to do a particular act |
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Term
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Definition
| Criminal and Civil proceedings based on this system; it refers to the amount of control that the parties and their attorneys have over the procedure- ie, the parties themselves research the law and develop the facts: the trial judge doesn't make these decisions; contrasted with inquisitorial system, used in most European nations |
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Term
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| If questioning indicates that a particular person probably would not be capable of making an impartial decision in trial, the judge will excuse this person by giving them this |
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Definition
| permit the attorney to have a prospective juror removed without giving any reason to do so |
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Term
| Preponderance of the evidence |
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Definition
| The plaintiff has to convince the fact-finder that it is more likely than not that each of its allegations is true |
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Term
| Rules of Evidence-Types of evidence not allowed in a court |
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Definition
Irrelevant Evidence-evidence that has no bearing on any of the disputed facts
Hearsay- second-hand info that a. consists of a statement made by someone not present and b. the evidence is offered in court for the purpose of proving the that statement Opinion- information believed to be true but not based on the witness' personal knowledge |
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Term
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Definition
| Similar to summary judgment- asserts that the plaintiff's evidence is either nonexistent or so weak that there is no genuine issue of disputed fact |
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| Empowers a law enforcement official to seize defendant's nonexempt property and sell it at auction until enough money is raised to satisfy the judgement |
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Term
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Definition
| orders a third party holding property belonging to the defendant to deliver the property to the custody of the court |
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Term
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| Most common type of property protected by exemption laws in terms of property that cannot be seized by the courts |
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Term
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Definition
| specifies that a plaintiff cannot start over by filing another claim against the defendant based on the same general facts |
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Term
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Definition
| parties select an arbitrator, submit very brief pleadings and present evidence and argements to the arbitrator. He makes a decision which is legally enforceable like a court judgement |
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Term
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Definition
| involves the resolving of disputes within the labor-management context usually when the particular group of employees is represented by a union |
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Term
| court-annexed arbitration |
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Definition
| these programs generally apply to case involving money damage claims below certain amounts which range; the trial judge refers to the case to arbitration |
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Term
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Definition
| when the fact pattern of a particular controversy is established, the attorneys for both paties search for earlier cases involving similar fact patterns in an effort to determine whether applicable principles of law have been established |
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Term
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Definition
| The judge of one court must follow the rulings of another court of a higher supremacy |
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Term
| provisions of statutory law |
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Definition
| 1. Adopting measures having to do with the structure and day-to-day operation of the government of which it is a part 2. Necessary for things that cannot be regulated by common law 3. necessary to change expressly common law rules white it believes such modifications are necessary and to remedy new problems to which common-law rules don't apply |
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Term
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Definition
| a court determines the precise legal meaning of a statue as it applies to a particular controversy |
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Term
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Definition
| the hundred of bards and commissions existing at all levels of government: also "make law" by their continual promulgation of rules and regulations |
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Term
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Definition
| the hundreds of boards and commissions existing at all levels of government-"Make law: by their continual promulgation of rules and regulations |
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Term
| 2 factors responsible for growth of the administrative agency in recent years |
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Definition
| 1.Change in attitude toward government regulation of business 2. More complex problmes sprang up that did not easily lend themselves to traditional types of regulation as the country grew and became more industrialized |
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Term
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Definition
| the functions and powers of some agencies that are onl concerned with routinely carrying out duties imposed by law |
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Term
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Definition
| powers that require the exercise of judgment and discretion in carrying out their duties |
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Term
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Definition
| ALlows warrantless searches of areas that are so open to plain view that no reasonable expectation of privacy can exist |
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Term
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Definition
| Open space in the immediate vicinity of a dwelling, such as a yard by a house. |
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Term
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Definition
| 1. The agency usually publishes a notice of the probposed rule in the federal register 2. Comment period where any citizen or company may comment on the rule 3. Agency Digests and reads comments 4. Rule is modeslty altered and published in final form |
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Term
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Definition
| Same as informal, except it also involves "notice and comment" with formal hearings where witnesses testify and are cross-examined by interested parties. |
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Term
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Definition
| resembles formal except there is no right to cross-examine agency's expert witnesses and a different standard of review is usedif the rule-making procedure is challenged |
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Term
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Definition
| Investigative, Rule Making, Adjudication |
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Term
| Abitrary and Capricious test |
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Definition
| Assures the correctness of an agency's decision, placing the burden on any challenger to prove that the decision was not simply erroneous but so far off the mark as to be _________and _________. Used to judge any policy decision by an agency |
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Term
| Substantial Evidence Test |
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Definition
| requires that an agency's decision be based not just on a scintilla of evidence but on such relevant evidence as a reasonable mind might accept as adequate to support a conclusion |
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Term
| Freedom of Information Act |
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Definition
| Any person may reasonably describe what information is sought and the burden of proof for withholding information is on the agency |
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Term
| Federal Privacy Act of 1974 |
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Definition
| Seeks to protect individuals from unnecessary disclosures of facts about them from files held by federal agencies |
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Term
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Definition
| every portion of every meeting of an agency shall be open to public observation |
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Term
| Regulatory Flexibility Act |
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Definition
| requires most federal agencies to transmit to the Small Business Administration on a semiannual basis |
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Term
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Definition
| laws passed in "non-certainty" countries and thrown in the "drawer"; meaning, you don't know about the law until it is broken |
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Term
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Definition
| defines rights and duties between individuals |
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Term
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Definition
| the defendant has breached the public peace |
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Term
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Definition
| Act must be a tort, such as negligence or assault and battery, for which the deceased could have filed suit if only injury and not death had occured. |
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Term
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Definition
| an employer is responsible for the negligent acts of its employees |
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Term
| Requirements for a case to be heard in a federal court |
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Definition
| Must have 1. Diversity of citizenship AND $75,000 at stake -OR- 2. Be a Federal Question |
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Term
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Definition
| If you want to sue someone in a place other than their home state you must have a privilege under this act. The privilege must mean either that: a) A person carries on a systematic relationship with another place or b) if the defendant caused a tort in that place |
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Term
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Definition
| people looking for information in personal places; allowed in courts as evidence |
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Term
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Definition
| entity may or may not have immunity, meaning that there is a statutory limit on how much a prosecution can collect |
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Term
| Tests necessary to change law |
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Definition
| 1. The necessity to change the law must be necessary, compelling and overwhelming 2. Whatever change takes place should be incremental |
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Term
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Definition
| The deranged 4th branch of government |
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Term
| Reasons for Agencies Existence |
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Definition
1. Ministerial Powers
2. Discretionary Powers |
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Term
| Subpoena Requirements (4) |
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Definition
| 1. the investigation will be conducted for a legitimate purpose 2. the inquiry is relevant to the purpose 3. the information sought is not already possessed by the agency and 4. the administrative steps required by law have been followed |
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