104 Cards in this Set
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Number of Justices on Supreme Court
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9
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Judicial Restraint
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Every decision made has to based somewhere in the US Constitution
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Every decision made has to based somewhere in the US Constitution
Judicial Activist
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When we make decisions, they don't necessarily have to be based on the constitution, it is the Supreme Courts Jon to guide society in the right direction
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How long is a justice on Supreme Court? Why that amount of time?
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They are put on for life. It is supposed to disconnect politics from the judicial system.
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How do you get on the Supreme Court?
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There has to be an open seat via resignation or death and then you have to be nominated by the President and be consented by the Senate.
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Can you label a justice liberal or conservative?
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No, it is a life long job and their opinions change while on the Supreme Court
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Who is the Supreme Court named after?
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The Chief Justice
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Name of a Judicial Activist Court
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Warren Court
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Name of a Judicial Restraint Court
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Burner Court
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Explain the Pendulum of Justice
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Decisions swing back an forth between activist and judicial decisions.
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Which type of law follows Stare Decisis?
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Private Law follows Stare Decisis. Public Law is open to change.
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Has a Supreme Court Judge ever been impeached?
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No and it has never been tried.
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What is federalism?
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Two levels of government, federal and state.
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Explain the Pyramid of Law.
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On the bottom is the Federal Constituion, next level is the State Constitution, next level is Congressional Acts, next level is State Acts, the next level is Common Law, and the top is Private Law.
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What is a case or contreversy?
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Two sides are in a dispute in a court.
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What do states use to determine their laws?
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Consitution, Legislative Acts, Court Cases, and Sister State laws.
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What is Stare Decisis?
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A process of looking back for a precedent case and deciding the same way as a case today, as long as the facts are similar.
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Original Issue Case
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Never happened before, still has to make a decision.
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Seperation of Powers
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Two brances have to typically agree to do something, the three brances all have equal power by using checks and balances.
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Explain Common Law
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Common Law is an entire system, it is considerred unwritten law- no organizaqtion in court cases and it is very difficult to find certain cases, and it is contrast to equity.
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Format of Common Law Cases
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Facts, Issue, Finding, and Reason.
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What is the best way to strengthen your case brief?
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The best way to strengthen your case brief is to find other winning cases with facts similar to yours.
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What does common law Stare Decisis give us?
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A sense of predictability, consistency, and stability
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How do you classify legal subjects?
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Private vs Public, Civil vs Criminal, Substance vs Procedure, and Law vs Equity
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Do courts follow Stare Decisis in public law?
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Courts have never felt necessary to follow Stare Decisis in cases of public law and this gives the courts flexibility.
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Do courts follow Stare Decisis in private law?
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Yes because contract law does not change because the can't afford to have flexibility.
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Pleadings
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A series of documents that framce the argument, you can only argue about what's in the pleadings
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Who files a complaint about who?
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Plaintiff, and they are complaining1 about a defendent.
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Summons
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Due process, being told what they're being sued for, this is called service of processes
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Who files an Answer?
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Filed by Defendant, if you don't answer, you lose the case
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What is it called when a defendant complains back against a plaintiff?
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Counter Claim
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When does the counter claim have to be brought up?
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It has to be brought up during that certain case or be dropped forever, taxpayers only want to pay for one case.
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What does the Complaint say?
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The complaint names the parties, states a place and time, states the facts in seperate counts and numbers them, then pleas for relief
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What is in the Answer?
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Responses to the counts in the complaints, must be answered in counts.
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How can a person respond to a count in a Complaint?
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Admit, Deny, Confess and Avoid, or Demurrer-dismiss saying you don't have sufficient knowledge.
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What is a Tort?
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Torts have to do with injury to people or damage to property
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What is a crime?
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Failing your duty to society and falling below the lowest level of acceptable behavior in society and because of this prosecution comes from the government
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What is a tort a breach to?
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A breach of duty to others, some are also crimes.
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Negligent Tort
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Gets the most litigation, when person is negligent or has negligence. Often called accidents.
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Intentional Tort
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Somebody intentionally injured someone else or intentionally damaging property, some listed as a crime.
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Strict Liability Tort
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If you commit this tort, you are strictly liable for all damages and cost
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How many Elements of Negligence are there and how many do you need to win?
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4, and you need all of them.
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What are the 4 elements of negligence and what do they mean?
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1. Duty of Due Care-you have to follow the rules2 Breach of Duty-have to determine a standard and see if there is a breach3. Proximate Cause of Damage- have to prove breach was the direct result of damage4. Provable Damage- must have provable damages
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Contributory Negligence
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The other party also contributed to the end result. If both parties weren't negiglent, the damages wouldn't have occured.
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Last Clear Chance
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If both are proven negligent, it's a tie. Unless the state uses Last Clear Chance-the party that has the last clear chance to avoid it but doesn't loses.
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What can a person injured in an intentional tort what can the bring and ask for?
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They can bring a civil case/suit and typically ask for money damages.
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Punitive Damages
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Additional money beyoned compensational damages, used to punish defendant and scare away further crimes
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Assualt
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Could be an intentional tort and crime, putting another person in apprehension or harm
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Battery
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Hitting someone intentionally, the person didn't consent-touching without consent
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Where did the US get its common law cases before had our own?
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British Common Law
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Objective Manifestation of Intent
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Everyone is presumed to know the consequences of their acts "Ignorance of the law is no excuse"
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Subjective Intent
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Asking someone if they intended to do something
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Who answers the question of objective manifestation of intent?
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Have an objective person answer the question of intent, jury bases their decision on the facts and decides if their was intent.
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Trespass
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Going on to someone elses property
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Emotional Distress
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Being scared or emotionally disturbed
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Theft
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Stealing
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False Imprisonment
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Restricting somebody else's freedom of movement even if they didn't know it.
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Corporate Torts/ Ethical Issues
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Stealing employees, taking intellectual property, trade secrets, etc
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What happens in a Strict Liability Tort?
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If anybody gets hurt or anything gets damaged, you are strictly liable, there is no concept of negligence or intent
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Strict Liability Torts occur when?
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Anytime you engage in a ultra-hazardous event
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Assumption of the Risk
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Only defense of strict liability
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Products Liability
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Suing for stretching the category of ultra hazardous
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Attractive Nuisance
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If you have a nuisance that can attract people, you pay under strict liability
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Plea Bargaining
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Pleading guilty to a lesser charge
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Discovery
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Each discovers what the other side knows
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Voir Dire
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The process of selecting the Jury, try to gget an unbiased and unprejudiced jury to either side
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How many jurers are on a civil and criminal case?
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5-7 on civil 12 on criminal case
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Lady of Justice and what is she holding?
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Symbol of judicial system, she is holding the scales of justice- weigh the evidence and compare
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Who is the burden of proof on and how much do you need in a criminal case?
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It is on the prosecution and you need nearly all of the evidence.
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How do they select a Jury?
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Random Selection, put in groups then send to court rooms, call jurers one by one and ask them questions about the case to determine if they can serve impartially.
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What is the order of a trail?
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Opening Statements, Evidence, Closing Arguments, Verdict
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What do crimes require typically?
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Intent
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What is the difference betweeen a felony and a misdemeanor?
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A felony the max punishment is death or lifelong imprisonment. A misdemeanor the max punishment is jail.
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Felony-Murder Rule
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If you commit a felony and somebody could die, you are going to be charged with murder.
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Do courts have to follow Stare Decisis in contract law?
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Yes, the need to so contracts can have power.
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What are the four elements of a contract and do you need them all?
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You need to have all 4, 1. Agreement consisting an offer and an acceptance 2. Consideration-each party has to give something new to the other side 3. Legal Capacity- must be able to enter a contract 4. Legal Purpose- has to be legal
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Unilateral vs Bilateral
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Uni-promise for an act, closer in time
Bi- A promise for a promise, used for future transactions
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Express Contractv
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Best valid contract, in the contract you have expresssed every term you needed
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Implied-In-Fact
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Contract law trys to find a way to fix contracts by looking at the other facts and imply the missing pieces
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Implied-In-Law(Quasi)
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Law forces a contract on the people
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Mutual Assent
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Both minds mutually agree to all the same terms
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Valid Acceptance
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Only Valid if agreed to all the terms
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Revoked
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As soon as an offer is revoked, taken away, it ceases
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Rejected
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Causes original offer to cease as soon as it was rejected with a counter offer
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Death of contract
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Offerer dies
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Illegality of a contract
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if illegal, it ceases
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Fraud or Misrepresentation
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Facts were misrepresented, can be unintentional
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Mutual mistake or fact/ Unilateral Mistake
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Both sides are mistaken or one side didn't know
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Duress, coercion, and undue influence
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Force to family, force to you, force by a person of trust
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Illusory promise
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Not having a contract, you have to add something new for the contract to be valid
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Bargained For
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Something has to be bargained for on either of side
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Legal Value
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Monetary, tangible, intangible things
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Incurring a Detrament
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Doing something you otherwise wouldn't have done except for the agreement, has legal value
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Peppercorn Theory
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A person can pay any amount for anything, the court doesn't weigh the amounts.
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Past Consideration is no consideration
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If you give me something you've already given to me without adding anything new and try to give it to me again, there is no consideration
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Pre-Existing Duty
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Something that you have to do or give to someone
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Minor (Infant) Contract Laws
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Designed to protect infants of being taken advantage of by adults. Any contract entered can be voided unless it is a necessity which a minor is bounded to.
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Statue of Frauds
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Must be submitted in writing. 1 Real Estate2. Guaranty Contract-one person agrees to pay if another person doesn't 3. Sale of Goods- large transactions 4. Contract over one year
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Performance and Discharge
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Both sides are expected to perform to the terms of the contract, and then they are discharged from the contract.
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Excuses
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Reasons for non-performance
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Impossibility
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Not possible to get something done, losing money is not an impossibility
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Promisee Prevents
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Contracts can cease and there is no liablilty if the promisee prevents something from happening
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Mutual recission/novasion
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Contract is not working anymore so both sides recind to original contract and use novasion to write a new contract
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Contract Breach Remedies
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1. Treat as cancelled 2. Sue for damages 3. Sue for specific performance- applied to something unique 4. Sue for injunction- stops you from doing something
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BUS 260:Exam 2