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Law 322 1
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143
Law
Undergraduate 3
09/10/2010

Additional Law Flashcards

 


 

Cards

Term

 

 

Two things state and federal courts have

Definition

lower courts

 

appellate courts

Term

 

 

lower courts

Definition

"courts of original jurisdiction"

 

-where disputes are initially brought and tried

-generally known as TRIAL COURTS

-look at issues of fact

Term

 

 

appellate courts

Definition

courts of appellate jurisdiction

 

-where lower court decisions are reviewed

-look at issues of law

Term

 

 

3 federal courts

Definition

federal district court

 

US court of appeals

 

specialized federal courts

Term

 

 

federal district court

Definition

-courts of original jurisdiction

-use juries or judge as "trier of fact"

-trial courts deal in issues of fact

Term

 

 

US court of appeals

Definition

12 courts

-rule: there is the RIGHT to appeal to this court

-3 judge panels deal in issues of law

Term

 

 

specialized federal courts

Definition

-limited jurisdiction

-i.e.- court of appeals for federal circuit-- takes appeals from:

-us district court in patent, trademark, and copyright cases

-us claims court

-us court of int'l trade; admin. rules of us patent & trademark offices

Term

 

 

US supreme court

Definition

-highest in the country

-appellate review court

-9 justices hear cases

-term begins: 1st monday in October

-review cases from: us district courts, us court of appeals, highest courts of states

-review is through writ of certiorari

Term

 

 

writ of certiorari

Definition

an order by an appellate court used when the court has discretion whether to hear an appeal from a lower court

 

writ accepted: higher court can hear it

 

writ denied: judgment of lower court is enforced

Term

 

 

jurisprudence

Definition
the science or philosophy of law
Term

 

 

jurisdiction

Definition

right of a court to hear & decide the case

 

many courts may have jurisdiction over a case

 

need jurisdiction over SUBJECT MATTER or PERSONS OR PROPERTY

 

if jurisdiction is LACKING, judgment is NULL AND VOID

Term

 

 

subject matter jurisdiction

Definition

a particular court resolves a particular subject matter

 

if no particular subject matter, case first goes to general trial court

 

GENERAL RIGHT TO APPEAL TO AT LEAST ONE HIGHER COURT

Term

 

 

courts of original jurisdiction

Definition
where case is first brought
Term

 

 

courts of appellate jurisdiction

Definition
where lower court decisions are reviewed
Term

 

 

probate court sees

Definition
wills and trusts
Term

 

 

domestic court sees

Definition
divorces, child custody
Term

 

 

municipal court sees

Definition
municipal matters
Term

 

 

small claims court sees

Definition
limited claims of usually $5000 or less, sometimes up to $7500 will be heard
Term

 

 

subject matter jurisdiction federal courts

Definition

jurisdiction is derived from the US constitution

 

fed courts may hear cases involving federal questions

Term

 

 

2 types of cases federal courts hear

Definition

-cases in which the US is a party

-cases involving citizens of different states

(diversity of citizenship jurisdiction)

 

amount in controversy >= $75000

 

no $$ amount for cases involving federal law

Term

 

 

in personam jurisdiction

Definition

(personal jurisdiction)

-over the person

-out of state defendants

Term

 

 

personal jurisdiction over the person through:

Definition

-summons through service of process or substituted service

-residency

-doing business in the state

-submission to the jurisdiction

 

Term

 

 

jurisdiction over out-of-state business defendants

Definition

long arm statutes:

-aimed at non-resident businesses

-protects states' citizens from business defendants who do business in the state then leave the state

Term

 

 

cyberlaw (long arm of the internet)

Definition

-Amazon is subject jurisdiction to all states b/c does business there

-engaged in business there

-"only informational" contact has no jurisdiction

-**one small purchase isn't active business if buyer initiates

Term

 

 

plantiff

Definition
the party who claims to have suffered an injury that the law can remedy
Term

 

 

defendant

Definition
the party who allegedly injured the plaintiff
Term

 

 

jurisdiction

Definition

the power to speak of the law

 

a court's jurisdiction defines the limits within which it may declare, administer, or apply the law

Term

 

 

plaintiff must select court that has both:

Definition

subject matter jurisdiction

 

personal jurisdiction over the person of the defendant or the property of the defendant

Term

 

 

personal service

Definition
personal service of the complaint is accomplished by physically delivering it to the defendant
Term

 

 

summons

Definition
process through which a court notifies and compels a defendant to a lawsuit to appear and answer a complaint
Term

 

 

service of process

Definition
the delivery of the complaint to the defendant either to her personally or, in most jurisdictions, by leaving it with a responsible person at her place of residence
Term

 

 

long-arm statute

Definition
state law that permits a state's courts to reach beyond the state's boundaries for jurisdiction over nonresident defendants
Term

 

 

Diversity of citizenship jurisdiction

Definition
requires diversity of citizenship (NC vs. SC) and have actual damages of $75,000 or more (amt only good for 2 parties from 2 states)
Term

 

 

civil law

Definition
everything is written
Term

 

 

common law

Definition
judge-made law
Term

 

 

do other countries have similar laws and procedures as us?

 

Definition
NO
Term

 

 

what sets up the court system?

Definition
US constitution
Term

 

 

order of 3 types of courts

Definition
district, court of appeals, highest courts
Term

 

 

certiorari

Definition

"review" in latin

 

denied centiorari: supreme court did not hear it; too many issues

Term

 

 

Blimka v. My Web Wholesaler, LLC

Definition

MWW did not give all pairs of jeans to Blimka in Idaho

He sued, and had personal jurisdiction because the offense was committed against him in Idaho

He was awarded attorney fees and costs on appeal

Term

 

 

two types of power over property jurisdiction

Definition

in rem jurisdiction

 

quasi in rem jurisdiction

Term

 

 

in rem jurisdiction

Definition

-jurisdiction is where property is located

-real estate, personal property, bank accounts, stocks

-if property is removed to another state, no in rem jurisdiction

Term

 

 

quasi in rem jurisdiction

Definition

-defendant's property is attached to pay for unrelated matter

-ownership of property within the state is basis for jurisdiction

-estate or personal, tangible or intangible

-CAN ONLY GET AMT UP TO VALUE OF PROPERTY

Term

 

 

matters where federal courts have exclusive jurisdiction

Definition
federal crimes, bankruptcy, patents, copyrights, federal questions
Term

 

 

matters where state courts have exclusive jurisdiction

Definition
divorce, adoption, matters controlled by state governments
Term

 

 

supremacy of federal law

Definition
state jurisdiction cannot infringe on federal jurisdiction
Term

 

 

concurrent jurisdiction

Definition

sometimes both state and federal courts have concurrent jurisdiction, meaning the plaintiff can bring suit in either court system

 

if plaintiff files in defendant's home state, defendant cannot move it up to federal

Term

 

 

applying appropriate law in federal court

Definition

-where actual act takes place

-because of Erie RR v. Tompkins, concept of federal common law in diversity of citizenship cases is ended

-PA law applies; Tompkins trespassed, Erie not liable

Term

 

 

applying appropriate law in state court

Definition

-state with most significant interest in the case would be the state whose law would be applied

-states look at interests of parties, gov't, policies

Term

 

 

state laws for contract cases

Definition
laws of state in which contract was made will be applied
Term

 

 

state laws for tort cases

Definition
laws of state where tort takes place
Term

 

 

venue

Definition

appropriate GEOGRAPHICAL location of the court that has jurisdiction

-in controversial or well-publicized cases, defendants will ask for change of venue

Term

 

 

doctrine of forum non conveniens

Definition

-special venue doctrine

-either party may request a change of venue to a court more convenient that could hear the case

-go to where actions of case took place, where witnesses are located, unfair burdens to parties

Term

 

 

basic trial procedures

Definition

pleading, discovery,

pretrial, trial,

appellate, enforcement

Term

 

 

pleading stage

Definition

-formal statements made

-complaint

-response to complaint (motion to dismiss [rare] by defendant); counterclaim where defendant says plaintiff did this and this; reply by plaintiff

Term

 

 

discovery stage

Definition

(legal tools to obtain evidence)

-purposes: preserve evidence, limit element of surprise, encourage settlement

-depositions, interrogatories, expert witnesses, documents, examinations

Term

 

 

deposition

Definition

what you said happened that can be used in trial; can go back to deposition during trial if person claims something else in court

-expensive

Term

 

 

interrogatories

Definition
someone just fills in a questionnaire and signs and notarizes it; much cheaper; can discredit a witness
Term

 

 

expert witness

Definition

can be pricey

doctor, real estate expert

Term

 

 

request for admissions

Definition

things you are willing to admit to real quick

 

settle facts quickly

Term

 

 

pretrial stage

Definition

involves summary judgment that either party can request or

pretrial conference that either party can request

Term

 

 

summary judgment

Definition
party asks the judge to apply the law to the facts and resolve the dispute
Term

 

 

pretrial conference

Definition

usually attorneys and judges attend

-simplify issues

-plan course of trial

-judges get parties to drop certain parts of case

-helps focus on key issues

-out of court settlement encouraged

Term

 

 

jury selection

Definition

6th and 7th amendments give right to jury in certain cases

-if no jury, judge is trier of fact

-12 jurors

Term

 

 

pre-emptory challenges

Definition
something on your juror card that they don't want in the jury
Term

 

 

voir dire

Definition

-used for jury selection

-excuse for personal reasons, don't stack jury, take out people that have been affected by the type of trial

Term

 

 

trial stage

Definition

-opening statements by attorneys

-presentation of direct testimony

-closing arguments

-charges to jury

-verdict by jury

-motions for a verdict

Term

 

 

motions for a verdict

Definition

-cases have been presented, but before going to jury, either party requests entering judgment in its favor

 

Term

 

 

2 overall types of remedies in civil litigations

Definition

monetary damages

 

equitable remedies

Term

 

 

monetary damages

Definition

compensation

punitive or exemplary (in addition to compensation for a malicious act)

nominal (to make up for legal wrong, not loss of money or pain)

Term

 

 

equitable remedies

Definition

specific performance (do as asked, used for property or antiques)

 

injunction (temporary to make right, permanent to stop doing action; used for copyrights)

Term

 

 

appellate stage

(appeal based on error of law)

Definition

-arguments before the court

-decisions by the court

-outcomes of decisions

 

Term

 

 

appellate stage decisions by the court

Definition

-majority opinion: written by one of the justices

-concurring: written statement agreeing that plaintiff should've won and why; along the lines of majority but has different reasoning

-dissenting: unbelievable, violates rights; disagrees with decision of the majority

Term

 

 

enforcement stage

Definition

-if no more appeals, judgment is final

-res judicata

-enforcement is through writ of execution

-court orders an official to satisfy judgment through an act

-complexity that causes parties to look for alt. dispute resolutions

Term

 

 

res judicata

Definition
a thing decided by judgment
Term

 

 

writ of execution

Definition
court order to an official, such as sheriff, to seize property 
Term

 

 

garnishment

Definition
paying part of your wages as damage control as part of your enforced punishment
Term

 

 

arbitration

Definition

-most widely recognized form of alt. dispute resolution

-3rd party (neutral) is arbitrator

-arbitrators decision is final

-RULE: no right to go to trial

Term

 

 

arbitration process

Definition

-party files a submission

-parties agree on arbitrator

-hearing procedure

-the award (decision)

-appealing the award (but generally final)

Term

 

 

voluntary and compulsory arbitration

Definition

-required dispute resolution for some

COMPULSORY: LABOR & PUBLIC SECTOR

-labor contracts (unions, insurance, stockbrokers, sports)

-public sector employment (police, firefighters, public school teachers)

Term

 

 

negotiation

Definition

-least formal form of ADR

-parties settle between themselves

-settlement is usually a contract, which is enforceable

Term

 

 

mediation

Definition

-3rd party

-mediator makes suggestions

-suggestions NOT BINDING on the parties

-may go to trial after this ADR

-helps maintain relationship between the parties

Term

 

 

do arbitrators and mediators have to be licensed in most states? 

Definition
YES
Term

 

 

summary jury trial

Definition

-jury equivalent of minitrial

-advisory jurors used; witnesses rarely used

-judgment not binding

-judge meets with parties to discuss

-nothing learned here can be used in later full court proceedings

Term

 

 

most important article of constitution

Definition

declaring the constitution to be the supreme law of the land

 

constitution and supreme court decide law

Term

 

 

commerce clause

Definition

congress has power: "regulate commerce with foreign nations and among the several states 

-deals with INTERSTATE COMMERCE

Term

 

 

necessary and proper clause

Definition

-constitution enumerates list of congressional powers AND

-power "to make all Laws which should be necessary and proper for carrying into Execution the forgoing Powers"

-can create anything that is NECESSARY and PROPER to fulfill interstate commerce

Term

 

 

federal supremacy

(the supremacy clause)

Definition

constitution, and laws of US shall be supreme law of the land; and judges in every state shall be bound thereby

 

Term

 

 

McCulloch v. Maryland

Definition

can congress est. national bank?

 

-yes, it's constitutional under the Necessary and Proper clause, which expands, not restricts, congress's powers

-MD wanted to regulate nat'l bank, but couldn't under Supremacy law

Term

 

 

Wickard v. Filburn

Definition

**almost all commerce is defined as interstate

-fed. controls on wheat

-appears intrastate, STILL all small farmers together would impact "interstate" commerce and "mkt conditions"

-congress may regulate production

Term

 

 

Katzenbach v. McClung

Definition

Title II prohibits racial segregation in public accommodations if serving interstate travelers or if food moved in interstate commerce

-activity may "exert a substantial economic effect on interstate commerce", so can't have only white seats

Term

 

 

when state law impedes interstate commerce:

Definition

interstate commerce takes primary authority over state laws

 

used to make interstate commerce most important

 

PUBLIC HEALTH, ENVIRONMENT, AND SCHOOL LEFT UP TO STATES

Term

 

 

Hughes v. Oklahoma

Definition

-Hughes bought minnow and took it to TX which goes against OK minnow protection

-US supreme court overturned OK supr. ct.

-alright to protect wildlife, but could be done in less discriminatory way by the state

Term

 

 

imitation not allowed (interstate commerce)

Definition

-states may not copy federal regulations if imitations inhibits interstate commerce

 

Term

 

 

crime

Definition

-positive or negative action that violates a penal law

**not civil law**

-act against the government

-seen more and more in businesses

-computers and technology have created new versions of old criminal laws

Term

 

 

felonies

Definition

serious class of crime

rape, murder, robbery

may be punishable by imprisonment in excess of one year or death

Term

 

 

misdemeanor

Definition
a lesser crime that is neither a felony nor treason, punishable by a fine and/or imprisonment in other than state or federal penitentiaries 
Term

 

 

violent crimes

Definition

murder

manslaughter

Term

 

 

victim crimes

Definition

vehicle theft

burglaries

Term

 

 

victimless crimes

Definition
possession of illegal drugs
Term

 

 

white collar crime examples

Definition
embezzlement, bribery, fraud
Term

 

 

punishment depends on ...

Definition
the category under which a person is CONVICTED
Term

 

 

2 requirements for prosecution

Definition

actus reus- the guilty act

 

mens rea- criminal intent

Term

 

 

people v. Salas

Definition

-depending on the crime, either guilty knowledge or criminal negligence may create criminal conduct

-FINAL DECISION: this knowledge or lack of knowledge is "peculiarly" within the defendant's personal knowledge

Term

 

 

statute of limitations

Definition
statute setting maximum time periods from the occurrence of an event, during which certain actions can be brought or rights enforced; if action is not filed before the expiration of that time period, the statute bars the use of the courts for recovery
Term

 

 

entrapment

Definition
law enforcement sets a trap to lure someone into a crime they had no intention of committing-- can be very tricky
Term

 

 

miranda rights

Definition
right to remain silent, right to have an attorney present during questioning, right to have an attorney appointed if he cannot afford one
Term

 

 

exclusionary rule

Definition
used for evidence that is gathered improperly so that it will not be used in trial
Term

 

 

warrants

Definition

-issued by judge or magistrate

-"hot pursuit" exception

-law enforcement must show probable cause to a judge to obtain a warrant

Term

 

 

United States v. Young, airway bill

Definition
rules already put in place by FedEx saying not to ship certain things; "sign" by going into business with them
Term

 

 

prosecution

Definition

occurs when prosecuting attorney has enough evidence to make criminal charges

 

-either be misdemeanor or felony

 

-grand jury sometimes used; if determine probable cause, will usually issues indictment against accused

Term

 

 

indictment

Definition
formal written charge issued by grand jury asserting that the named person has committed a crime
Term

 

 

arraignment

Definition

accused is placed under arrest based on a warrant, then are arraigned (court appearance of accused)

-may plead guilty, no contest, or innocent

 

-may wait until later

Term

 

 

nolo contendere

Definition
no contest 
Term

 

 

double jeopardy

Definition
prevents defendant from being tried a second time for the same crime
Term

 

 

if jury can't agree on verdict...

Definition
there is a mistrial and the prosecutor will decide whether to proceed again
Term

 

 

white collar crime

 

Definition
wide range of nonviolent crimes, often involving cheating or dishonesty in commercial matters
Term

 

 

antitrust

Definition

federal and state statutes to protect commerce from certain restraints of trade, such as price fixing and monopolization

-prison terms may be imposed on those involved in price fixing and certain other anti competitive practices and such terms can be as long as 10 years

Term

 

 

bankruptcy fraud

Definition
person or corporation hides or lies about assets in bankruptcy proceeding (also applies to creditors giving false information or illegal pressure to bankruptcy petitioners)
Term

 

 

bribery

Definition
offer or taking of money, goods, and services, etc. to influence OFFICIAL actions or decisions
Term

 

 

counterfeiting

Definition

copying of genuine items without authorization 

 

-money, designer clothing, other products

Term

 

 

credit card fraud

Definition
unauthorized use of a credit card
Term

 

 

computer and internet fraud

Definition

-usually 2 fraud charges

-credit card fraud

-unauthorized access to financial accounts

-unauthorized use of computers and computer files

-sabotage of computers

Term

 

 

economic espionage

Definition
theft or misappropriation of valuable business information, such as a trade secret 
Term

 

 

embezzlement

Definition
person in position of trust takes money or property for their own use
Term

 

 

environmental law violations

Definition

-federal (EPA) and state laws 

-data fraud cases

-hazardous waste dumping

-ocean dumping by cruises, oil spills

-int'l smuggling of CFCs, illegal handling of hazardous substances

Term

 

 

financial fraud

Definition

regulation of banks and financial institutions 

-firms and employees subject to criminal liability

-fraud in loans, financial documents, mortgages, etc

Term

 

 

government fraud

Definition

governs contracts with public agencies

-billing for goods not delivered

-double billing

-inferior goods

-gov't payout programs (farm subsidies, public housing, ed. programs, disaster relief)

Term

 

 

healthcare fraud

Definition
over-billing and scams by hospitals, doctors, ambulance services, labs, phars, extended care facilities
Term

 

 

insider trading

Definition
person trades a security while in possession of material, nonpublic information
Term

 

 

insurance fraud

Definition

insurance companies commit fraud, charging higher rates than allowed by state regulators

-policy holders lie about condition of property to get lower rates

-policy holders paid their claims to get more money

Term

 

 

mail fraud

Definition
sending fraudulent materials through US postal service or using the US postal service to communicate fraudulent activities
Term

 

 

money laundering

Definition

hiding the truth about the origins of money, especially illegal activities

-obligation to report income even from illegal income for tax purposes

-used for hiding drugs, etc

-now you have to write down where all money comes from

Term

 

 

Interpol

Definition

-largest int'l policy org. with 184 nations

-encourages cross-border police cooperation

-combats drug trade, prostitution, funds for terrorism, intellectual property crime, credit card fraud, viruses, child porn

Term

 

 

racketeer influenced and corrupt orgs (RICO) act

Definition

-orig. extra weapon against org. crime (Mafia)

-successful RICO claim receives triple actual damages + attorney's fees through civil claims

-now include mail and wire fraud

-now used against persons, businesses, political protest groups & terrorist orgs

Term

 

 

securities fraud

Definition

different kinds

-insider trading gets a lot of press

-market rigging

-theft from accounts of clients of securities firms

Term

 

 

tax evasion

Definition

-failure to file tax returns

-failure to report income

-overstatement of expenses

-not reporting illegal income

Term

 

 

internet crimes

Definition

-crimes involving children or child porn

-restricted access to the net by those involved in child related criminal activity already present

-courts exploring constitutionality of restricting internet use by person convicted of financial crimes

Term

 

 

telephone and telemarketing fraud

Definition

-defrauding: solicit people to buy goods, services, investments, donations to charities

-false and misleading statements, representations and promises

-similar fraud done on the internet is also subject to criminal prosecution (chat, email, message boards, websites)

Term

 

 

white collar crime in other nations

Definition

-US tougher than other places

-bad behavior at top of US chains (CEOs)

-slap on the wrist is sometimes punishment abroad

-all countries have laws against white crime

Term

 

 

wire fraud

Definition

any electronic communication involved in illegal activities 

-now basis for federal prosecution

 

-Pasquantino vs. US

Term

 

 

Pasquantino v. US

 

Definition

-american bought liquor in US and smuggled to Canada for resale

-since electronic communications were used that originated in US, 2 people sent to prison

Term

 

 

sentencing guidelines and compliance

Definition

-clear rules about sentences for criminal law violations

-use of audits

-mandates to prevent fault from happening again

-Supreme court held: guidelines are advisory, not mandatory for judges to use

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