View
- Term
- Definition
- Both Sides
Study
- All (51)
Shortcut Show
Next
Prev
Flip
Exam 1 (CH 1-3)
constitution |
highest "supreme" power; make treaties |
statute |
law passed by states |
ordinance |
statutes passed by cities |
regulations |
created by agencies; create more specific statutes
|
private law |
dealing with contracts |
court cases |
common law with precedent |
uniform laws |
laws recommended to be followed by all states but cannot be established nationwide by congress |
"bribery law" |
tax on alcohol until all states agreed upon drinking age |
administrative law |
agency created to help with rules, orders, and decisions
perform all 3 functions of government
ex. FDA, IRS, Homeland Security
|
common law |
1. precedent-court decision used as example for future similar cases---no two cases are identical
2. goal: for law to be common in all courts
3. used where statutes do not apply or where situation is too vague |
question of law |
the law itself and what it means, how it applies
-only judges have a say on question of law
-ex. too fast for conditions---45mph in 55mph zone |
question of fact |
what happened?; discussion of facts from certain perspective
-juries decide
-judges decide if theres no jury
-ex. too fast--78mph in 65mph zone |
why might judge not follow precedent? |
1. times have changed
2. substantial difference from precedent case
3. precent was wrong
ex. Brown vs Board of Education
went against precedent bc separate but equal was unconstitutional |
common law vs civil law |
-common law: very few statutes and court cases become precedent
-civil law:statutory codes and court decisions are not precedent
|
criminal case |
always associated with government entity, been brought bc of "wrong" done to society
-based on defendant's CONDUCT
-must be proved beyond reasonable doubt!
-not quantifiable--must be more than 50%
---also known as preponderance of evidence |
civil case |
associated with people, businesses, or organizations that are not affiliated with government
-based on CONSEQUENCE to plaintiff
-must prove with preponderance of evidence
-greater than 50% |
innocent yet liable
double jeopardy can't apply to state & federal |
ex. OJ Simpson was innocent yet liable for reparations to family members of deceased
-criminal case: innocent--bc not proved beyond reasonable doubt & plead the 5th
-civil case: liable (guilty)--bc more than 50% & can't plead the 5th |
criminal & civil case |
-wait until verdict of criminal case to bring civil case
-if guilty in criminal case then automatically guilty in civil case
-when criminal case is over--lose right to plead the 5th |
federalism |
sharing of power between D.C. and the states |
enumerated powers |
lists out how powers are to be divided |
separations of power |
government made up of three branches
-checks & balances: branches can limit the powers of other branches |
how to decide if constitutional case? |
1. gov't affiliated group?
2. conduct justify the infringement? if justified then dismissed, if not then a case begins
3. how big infringement? minor-no case, major-becomes case |
commerce clause |
gov can only regulate commerce if it interferes with interstate commerce or if large enough burden/conflicts with federal laws
-ex. gibbons v ogden--if commerce is "substantially affected" then gov has right to regulate interstate commerce
|
law that can be made unconstitutional for interstate commerce: |
big burden with high risk
or
benefit is not big enough |
freedom of speech |
only certain things protected:
*political-fully protected but no absolutes
*commercial (advertising)-limited protection; regulated but not prohibited
*obscene-not protected(cursing,pornography)
*offensive-regulated but not enforced(racial slurs, political) |
due process |
right to trial
(in 20 days) |
equal protection clause |
all people of all trials shall be treated similarly
-strict: race distinctions (lots of examination)
-intermediate: age or gender
-rational basis: all other distinctions (less examination) |
law vs equity courts |
-law: very technical, limited remedies
-equity: fairness where law courts would lead to unfair result |
don't ask what type of case, but... |
-what type of charges
-who is involved
-who is hurt
-who can press charges
-what possible lawsuits can occur |
to file a suit, you need: |
1. standing
2. jurisdiction
a. personal or in rem
b. subject matter
3. venue
|
standing |
-stake you have in the matter,
-must have justifiable reason to sue,
-cannot sue for someone else,
-injury must be personalized |
jurisdiction |
WHO of the trial
-cant ask jurisdiction w/o knowing plaintiff & defendant
-who can tell you what to do
based on:
-residency
-physical presence (where incident took place)
-minimum contacts
|
in rem |
-location of property that is subject to law suit relevant
-usually involves real estate
-typically based on ownership dispute over the property
-takes place of personal jurisdiction over defendant
-location of parties not relevant |
venue |
-location or place where case will be heard
will be in city or county of the state of jurisdiction
-if witnesses, venue may change to benefit them
rules can be modified but must stay in jurisdiction
-civil-usually where defendant lives
-criminal-where crime took place |
venue exceptions |
Colorado teacher sleeps with hs senior--changes venue of small town to denver to avoid publicity
-you get in car accident in wyoming
-you can sue wyoming person in Wyoming jurisdiction
-wyoming can sue you in Colorado jurisdiction |
to file in federal court: |
-must be a violation to federal statutes, trademark/patent, or something to do with constitutional law
-plaintiff can request federal if questions federal law or with diversity of citizenship (two different states) & there is $75,000+ in dispute |
state court systems |
-supreme
-appellate
-trial |
pleadings |
complaint-filed by plaintiff
answer-by defendant
can either:
-deny or admit
-make a counterclaim
-make a 3rd party complaint |
discovery |
evidence/facts discussed before trial to avoid surprise
includes:
-deposition
-interrogatories
-medical records
-business records
-production of documents |
jury |
criminal:
12 people
must be unanimous or mistrial (never happened)
civil: one of parties must request jury or judge waives the right
6-12 people
must be majority
terms of selection: void dire (questioning by attorneys)
-for cause (provide reason to not be sworn in)
-peremptory(no reason to dismiss)
|
reasons for appeal in court: |
-procedural defect: error made by judge in trial
-impossible that verdict is correct
-cannot appeal bc of disagreement with outcome |
mediation |
voluntary process to avoid court
-mediator: neutral 3rd party who helps negotiate & form resolution
-often used if long-term relationship
-mediator makes proposal but parties not required to follow |
arbitration |
voluntary appointment or arbitrator to make binding decision
anyone can be arbitrator
-give up right to appear in court
-3rd party makes decision for the parties
-nonbinding--parties can go thru w/lawsuit if don't agree with arbitrator |
writ of certiorari |
writ from higher court asking a lower court for the record of a case
-court will not issue writ unless at least 4 of 9 justices approve |
litigation |
process of resolving a dispute through the court system |
motion to dismiss |
request to dismiss the case for stated reasons
-improper delivery of the complaint and summons
-plaintiffs failure to state a claim for which a court could grant relief |
motion for judgement on the pleadings |
pretrial motion:
-judge will grant motion only when no dispute over facts just questions of law
-may only consider evidence contained in the pleadings |
motion for summary judgement |
pretrail motion:
court may consider evidence outside the pleadings
-sworn statement by parties or witness
-sole question of law not fact |
counterclaim |
claim made by defendant in civil lawsuit against the plaintiff; in effect the defendant is suing the plaintiff |
motion for directed verdict |
judge takes decision out of juries hands and makes direct verdict based on ground that other party not produced sufficient evidence to support his or her claim |
appellate review |
court of appeals doesn't hear evidence but instead reviews record for errors of law
options:
-affirm court decision
-reverse court decision
-remand(send back for further hearings)
-affirm/reverse in part
-modify |