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Definition
| Legal capacity to require another person to reform or refrain from performing an act |
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| An obligation of law imposed on a person to perform or refrain from performing a certain act |
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| Right of privacy, protects against unreasonable searches |
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| Rules that parties agree to within contracts |
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| Stands as the law for future cases. Mention Stare Decisis |
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| The time-honored rules of community |
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| Creates, defines, and regulates rights and liberties |
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| Specifies steps that must be followed in enforcing rights and liabilities |
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| Subject matter jurisdiction |
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| Covers the types of proceedings that the court holds |
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| Trial court that hears the first proceedings of a case |
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| Limited/Special jurisdiction |
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Definition
| The authority to hear only special kinds of cases |
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| Possibilities of an appeal |
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Definition
| Affirmed, reversed, or remanded for another trial |
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| General trial courts of the federal system that hear both criminal and civil cases |
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| Made by the circuits full panel |
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| Has appellate jurisdiction over cases that are appealed from federal courts of appeals |
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| Preliminary review of cases appealed to decide whether a case will be heard |
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| Handle smaller civil cases up to $25,000 in Boston |
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| Intermediate level appeals courts that handle appeals of the lower courts |
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| Process to start a lawsuit |
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Definition
| Complaint(list of facts), Serve defendent, response and pleadings (D could make a motion to dismiss) |
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Definition
| A request that states that even if the complaint is true, there is still no right to recovery |
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| Consists of a deposition, requests for production of documents, designating experty witnesses, and motion for summary judgement |
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Definition
| Testimony of a witness out of court but under oath. Used to preserve testimony of the witness |
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| Motion for summary judgment |
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Definition
| Claim that there are no factual issues and that the case can be decided by a judge |
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| Judges interpret law, juries interpret facts |
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| Frames the case for the jury, explains what they are about to hear |
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Definition
Direct asks witness to elaborate (Then what happened)
Cross intends to impeach credibility of the witness (Could you really see the defendent?) |
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Definition
| Asks the court to direct a verdict stating that even if all the evidence is true there is no basis for recovery |
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| Judgement NOV (notwithstanding the verdict) |
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Definition
| The court can set aside a verdict if the evidence is so clearly one way, so the jury can't be stupid and ruin a case |
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| When a middle man steps in and solves the problem |
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| Official that examines complaints |
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| The social and economic questions that arise through business interactions |
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Definition
| Conduct that compromises loyalty. Ex. Hiring a relative to your company |
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Term
| Blanchard and Peale 3 Part Ethical Test |
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Definition
Ask these 3 Questions
1) Is it legal
2) Is it balanced
3) How does it make me feel? |
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| Front Page of the Newspaper Test |
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Definition
| Ask yourself how you would feel if you action were on the front page of a newspaper |
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Definition
| Examines problem from all perspectives, defining the problem and how it arose |
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| Requires measurement of the impact of a decision on various groups and that public disclosure would be defensible |
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Definition
Asks 3 C questions
1) Is conduct in compliance with law?
2) What contribution does this make to shareholders, community, employees?
3) What are the consequences of the decision? |
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Term
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Definition
Legislative (Congress) makes laws
Executive (President) enforces them
Judicial (courts) interpret them |
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| The power to adopt laws to protect the general welfare, health, safety, and morals of the people |
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Definition
Make an act criminal when it was done before made illegal.
This is prohibited by state and federal law |
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Definition
| Often means Congress does not want to make a final decision on a matter |
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Definition
| Belief that the Constitution should stand for all time, and not adopt to the times |
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Definition
| Belief that the Constitution is a statement of goals and should grow and change over time |
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Term
| Constitutional Amendments |
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Definition
| There are 27, these are made when a situation arises that could not have been forseen when the Constitution was written |
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| Living Constitution Qualities |
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Definition
| Strong government, strong president, Eclipse of states, Administrative Agencies |
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Definition
| Protects the power to regulate commerce with other nations |
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Definition
| Guarantees a right to protection against the loss of property or rights without the chance to be heard |
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Term
| Quasi Judicial Proceedings |
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Definition
| Proceedings in which the parties need not go through complex, lengthy procedures of a trial |
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Term
| Privileges and Immunities Clause |
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Definition
| Means that a person entering another state shall be entitled to make contracts, own property, and engage in business to the same extent as citizens of that state |
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Definition
| First 10 Amendments to Constitution. Provides protection for both individuals and corporations |
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| Governments may regulate... |
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Definition
| Production, distribution, and financing. Ex. False advertising, FDA, anti-trust |
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Definition
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| Federal Trade Commission Act |
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Definition
| Made all unfair methods of competition unlawful and created FTC (Federal Trade Comission) which monitors refusals to sell, boycotts etc. |
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| Can both national and state governments regulate prices? |
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Definition
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| Any agreement to charge an agreed price or to set min or max prices. This violates the Sherman Act |
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| Prohibits price discrimination |
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| Prohibits charging different prices to different buyers when the cost is the same |
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Definition
| Charging different prices to create reduced competition or a monopoly |
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| Price discrimination can be permitted if |
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Definition
| A difference in quality can be shown, cost of transportation is different etc. |
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Definition
| Controls Antitrust behavior |
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Definition
| The ability to control prices and exclude competitors |
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Definition
| When a seller makes a buyer purchase additional products that the person does not want |
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Definition
| Necessary to submit to FTC before merging with a company |
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Definition
| Passed in 1963, but got no response from the states when federal gov asked them to develop pollution standards |
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| EPA (Environmental Protection Agency) |
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Definition
| Created to establish clean air standards and see that states implemented these standards |
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Definition
| "dirty areas" that can lose federal highway funding |
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Definition
| Determines whether a factory can be built in an area |
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Definition
| Plan to reduce greenhouse gases. The US has not adopted it as a treaty, and there is strong opposition from businesses that do not want to see it enacted |
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| How Environmental laws are enforced |
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Definition
| Can be through criminal sanctions, penalties, injuctions, and suits by private individuals |
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Term
| Council on Environmental Quality (CEQ) |
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Definition
| Established in 1966 as part of executive branch to establish national policy on environmental quality and then make suggestions to legislative branch |
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Definition
| Private affects a few people, public affects community or public at large (duh) |
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Definition
| The process by which a buyer conducts an investigation of property to determine whether any environmental or nuisance problems exist |
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Definition
| A gov. or city adopts an ordinance imposing restrictions on the use of land |
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Definition
| When the use of land is in conflict with a zoning ordinance at the time the ordinance goes into effect. It can continue, but once stopped cannot be restarted |
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Definition
| When the owner is permitted to break a zoning ordinance in a specific way |
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Term
| Definition for Rules of Law |
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Definition
| Guides to human conduct in our society established and enforced by officials acting on behalf of the entire community, and designated to achieve the best possible balancing and adjustment of the diverse interests in our society |
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| Requirements for Effective Legal System |
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Definition
| Rules must be followed voluntarily, be just and reasonable, be flexible and knowable |
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Definition
Legal contain standards and principles.
Narrow are specific |
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Term
| Can one event result in a criminal and civil suit? |
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Definition
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Term
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Definition
Municipal- misdimeanors and civil Under 25k
Superior-criminal and civil Over 25k |
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Term
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Definition
Superior court is a court of record, jury of 12
District has jury of 6 |
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Definition
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Term
| Probate Court(Family court) |
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Definition
Involves proving something.
Ex. Name change, will, divorce |
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Definition
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Term
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Definition
| Fight lack of heat/hot water |
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Definition
| Part of district court, handles less than 5000, and has no need for an attorney |
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Definition
| Highest appeals court, sets precedent for the state handling new and novel cases |
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Definition
| US district and US court of Appeals |
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Definition
Handles civil and criminal cases that involve constitution or federal quesiton of statute.
Also, if over 75,000 and diversity of citizenship |
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Term
| Does court of appeals have a jury or witnesses? |
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Definition
| No, the case has already been heard, so there is just the appeals judges |
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Term
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Definition
9 Judges, cases come as appeals from USDC to USCA to Supreme Court. Uses a Ripe-ness test to hear the most current, pressing issues
Also will hear cases with conflict withing the circuits |
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Definition
Subject matter- Jouvenile, probate, municipal court
Territorial- Courts cover county, state etc
Personal and Property- Has defendent been served? |
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Definition
| WHERE YOU FIND THE DEFENDENT |
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Term
| __% of cases are solved with pre-trial procedures |
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Definition
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Term
| Where do you bring the lawsuit? |
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Definition
| Where you find the defendant |
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Term
| Where do you bring the lawsuit? |
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Definition
| Where you find the defendant |
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Term
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Definition
| When states have different rules of law, state will apply its law but look to the conflicts of law |
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Term
| What is name of superior court in Boston? |
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Definition
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Term
| Conflict Law for contracts in Mass and Maine |
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Definition
Mass- Apply law from where contract is made
Maine- Use law of where contract was to be performed |
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Term
| Eerie RR v Tompkins (1938) |
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Definition
Man hit by train door while walking along beaten path. Was appealed to USDC because over 10,000 dollars (limit in 1930s) and diversity of citizenship bc RR was chartered in NY
Awarded 30k |
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| Point of Erie v Thompkins |
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Definition
| Federal courts will apply the law of the state where the court is located |
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Definition
| Disagreement over contract. Held is USDC in Mass. Since contract was made in Boston, no conflict law is needed |
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Term
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Definition
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Term
| Motion to Dismiss (Demurrer) |
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Definition
Ask for a case to be thrown out for reasons including:
Failure to state a claim upon which relief can be granted
Failure to state a cause of action |
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Definition
| Judge, lawyers and parties discuss a possible settlement |
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Term
| Does a defendant need to give all of their witnesses? |
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Definition
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Term
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Definition
| Written questions between the parties |
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Term
| Can you send interrogatories to witnesses? |
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Definition
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Term
| Can a lawyer bribe a witness to testify, offering hotel, payment etc. |
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Definition
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Term
| Rules for leading questions in a deposition |
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Definition
| They can be used if the deposition is just for discovery, but if the deposition is to be used in court then court procedure must be followed |
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Term
| Motion to Dismiss=Demurrer=Motion to strike |
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Definition
| All mean "even if this is true, there is no case" |
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Term
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Definition
| Means do not unsettle that which has been resolved. Means that the precedent law will be used in cases |
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| Legal process considering stare decisis |
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Definition
1) find a case with essentially similar facts
2) extract the rule
3) Apply the rule to your case |
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Definition
| Doctor is busy and doesn't help dying man. Courts claim there is no legal obligation. Served as example of stare decisis for future similar cases |
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Definition
| Take away jurors, both defense and prosecutors can do this |
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Definition
| Must be relevant and be presented through a witness |
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Term
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Definition
| An out of court statement by a person who is not now a witness testifying which is being offered for the truth of the content of the statement |
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Term
| Hearsay example not allowed in court |
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Definition
| Jane states that Chris said "I saw Ryan kill Prof. Twomey" because Chris is not there in the court room to accuse Ryan and be subject to cross exam |
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Term
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Definition
| Chris says "I heard Ryan say he killed Prof. Twomey" It is the party defendant exception |
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Term
| Party defendant exception |
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Definition
| When the one doing the damages is in the court room and subject to cross examination |
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Term
| Dying Defendant Declaration |
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Definition
| Typically allowed in court because this person has no reason to lie |
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Term
| Business Records Exception |
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Definition
| The one keeping the records would have to testify |
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Term
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Definition
| Take the law of where the event takes place. Prevents forum shopping |
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Term
| Will the court accept "my client hasn't paid me" as an excuse to delay trial? |
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Definition
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Term
| Attorney Client Privilege |
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Definition
Attorney cannot testify against his client unless he becomes involved in hiding the crime.
Ex. Operator hears the attorney tell the defendant to hide the gun, so the evidence was allowed |
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Term
Husband/wife privilege
Priest/Pertinent privilege
Doctor/Patient privilege |
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Definition
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Term
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Definition
| The proof needed to make someone guilty |
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Term
| Burden of proof for Criminal v Civil |
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Definition
Criminal- must be proven beyond a reasonable doubt
Civil- lesser burden, by a preponderance of the evidence |
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Term
| Burden of proof with Antitrust |
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Definition
| Because there are treble damages more BoP is needed |
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Term
| What does the attorney hope to do with cross examination |
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Definition
| Tries to show bias, show they said something different prior,or defects in testimonial faculties (couldn't see or hear something) |
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Term
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Definition
| When Plaintiff wins, gives this to sheriff to try and collect. So it begins with sheriff serving, ends with sheriff collecting |
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Term
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Definition
| Means a case has already been decided |
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Term
| Procedural and Substantive Fairness |
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Definition
Procedural- Courts run the same way
Substantive- the rules themselves must be fair |
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Term
| Is drug testing a search? |
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Definition
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Definition
| Gives an officer suspicion and makes the search ok |
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Term
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Definition
Deals with Freedom of the Press
Basic guidelines for sex in movies are whether
1)the average person applying community standards would find that the work as a whole appeals to the prurient interests (interest of commercial sex)
2) whether the work depicts in an offensive way, sexual conduct specifically defined by applicable state law
3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value
Shows that states need a specific law on matters |
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Term
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Definition
Prior to questioning, person must be read his rights, and anything said can be used in court, and that he has a right to an attorney.
Defendant can waive these rights provided it is made volunarily |
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Term
| Elements of Valid search warrant |
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Definition
The officer must appear personally before a court and submit an afedavet which sets for facts, info and circumstances amounting to probable cause
The grounds must relate the property that has been involved in a crime or unlawfully possessed or concealed for an unlawful purpose
The application must state the goods being searched for |
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Term
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Definition
Train conductors have less privacy because they are responsible for people
Teachers being demanded a blood test was deemed unreasonable |
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Term
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Definition
Search found weapon without warrant
Supreme court stated "fruits of an illegal search may never be used as evidence" |
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Term
| Can police officers search someone they are arresting? |
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Definition
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Term
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Definition
| Aka "Stop and Frisk" when a crime hasn't been committed in your presence but you fit description, you can be stopped |
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Term
| Privilege against self incrimination |
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Definition
| Testimonial in nature. Does not stop being fingerprinted, blood tested, or being in a lineup |
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Term
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Definition
| Secret Jury of peers to protect public figures of being overly accused just to create publicity |
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Term
| If judge states a witness can be treated as hostile... |
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Definition
| Leading questions can be asked |
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Term
| If the state grants you immunity.. |
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Definition
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Term
| Most Protected Types of Speech |
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Definition
| Political, social, and religious claims |
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Term
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Definition
| Speech plus action. State can become involved in the type, time, and actions |
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Term
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Definition
Commerical.
Obscenity is not protected at all |
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Term
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Definition
| Not allowed, a film/exhibit must be allowed to be shown before stopped |
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Term
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Definition
| You can't forbid an entire film, can only omit certain parts that break the law |
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Term
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Definition
| Police cannot intervene in a picketing exercise unless there is clear and present danger |
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Term
| Is freedom of speech protected if the speech is false? |
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Definition
| No, you can be sued for defamation |
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Term
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Definition
| Verbal lie. To be charged needs a defamatory remark, publication, and show plaintiff lost $$ |
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Term
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Definition
| Printed lie. Only publication is needed. The burden moves to the defendent to prove they didn't lie |
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Term
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Definition
| Can be spoken or physical form. Example is Pastor V Wasterson |
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Term
| Defamation of Public Figures Requires |
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Definition
| Libel, publication, and malice (disregard for the truth) |
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Term
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Definition
| prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances |
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Term
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Definition
guards against unreasonable searches and seizures. The amendment specifically also requires search and arrest warrants be judicially sanctioned and supported by probable cause
Caused by Mapp V Ohio |
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Term
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Definition
protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law
Due process |
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Term
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Definition
| In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence |
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Term
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Definition
Its Citizenship Clause provides a broad definition of citizenship that overruled the decision in Dred Scott v. Sandford (1857), which held that blacks could not be citizens of the United States.
Its Due Process Clause prohibits state and local governments from depriving persons (individual and corporate) of life, liberty, or property without certain steps being taken. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive rights and procedural rights.
Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause later became the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in the United States. |
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