Section 1
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Contemporary law sources
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Last updated
6 years ago
Date created
Mar 1, 2020
Cards (131)
Section 1
(50 cards)
Contemporary law sources
US and state constitutions statutes common law court orders administrative law treatises
legislative branch
makes laws
statute
law created by legislature
natural law
an unjust law is no law at all and need not be obeyed. laws must have a good moral basis
independent agencies
heads of agencies are selected by agency
precedent only is binding for
US and State Supreme Court
case citation
Plaintiff, defendant, reporter (Court, Year).
state constitution functions
create state executive, legislative, and judicial systems
precedent
an action or official decision that can be used as support for later actions or decisions
legislative history and intent
sometimes the court can look to the reasons behind the statutory law to determine the legislators' intent. floor debates
public law
sets the duties of government to its citizens
court orders
judge-made orders binding on individuals/corporations
statutory law
must pass by majority in both houses. If vetoed, need 2/3+ vote in both houses
public policy
the courts will use accepted social policies to interpret statutory law, such as reducing crime or providing education to interpret a law
legal realism
enforcement of the law is more important than the law itself. enforcers determine if the law is applied in a fair and consistent way
jurisprudence
the study of law
criminal law steps
dangerous behavior outlawed by society government prosecutes accused guilt is determined punishment or fine is imposed
treatises
president with foreign nations ratified by the Senate with at least 2/3 vote
Stare Decisis
"let the decision stand"
executive agencies
the president and hire/fire heads of agencies at will
IRAAC
Issue Rule Argument 1 Argument 2 Conclusion
law
body of rules of action or conduct prescribed by controlling authority, and having binding legal force
Where is precedent binding?
only in lower courts of the same system
examples of independent agencies
FTC, FC, USSEC, EPA
an agency is created when
congress passes enabling legislation, which describes a problem and defines the agency's powers. both federal and state
three branches of government
legislative executive judicial
Civil law steps
regulates rights and duties of parties victim, not government, brings suit guilt not determined compensation is ordered
interpretive rules
do no change the law; they define or apply the laws to new situations
administrative law
generally created by Congress
informal rulemaking
proposed rule must be published and public allowed to comment
common law
judge-made law; accumulation of precedent
judicial branch
interprets laws
United State Constitution functions
establishes Congress, the Presidency and Courts gives to states powers not given to Federal government guarantees basic rights to all citizens
civil law
A law that governs relationships between individuals and defines their legal rights
Supreme Law of the Land
United States Constitution
Administrative Procedure Act
regulates agencies in attempt to reduce controversy
legislative rules
require businesses and people to act a certain way; have the effect of a Congressional statute
private law
regulates duties between individuals
formal rulemaking
must hold a public hearing before establishing the rule
legal positivism
law is what the sovereign says it is. Decisions stand, regardless or morality
civil law only looks at
statute, not the precedent or common law
substantive law
defines the rights of the people
primary sources of law
constitutions, statutes, administrative regulations, case law
federal system consists of
US Supreme Court 11 Circuit court systems
examples of executive agencies
FDA, FBI, IRS, USDA
bill
proposed statute
procedural law
establishes processes for settling disputes
secondary sources of law
treatises, restatements, law review articles
plain meaning rule
courts must use the common sense definition of words in the statute
executive branch
enforces laws
Section 2
(50 cards)
peremptory
(adj.) having the nature of a command that leaves no opportunity for debate, denial, or refusal; offensively self-assured, dictatorial; determined, resolute
Alternative Dispute Resolution (ADR)
other formal or informal methods used to settle disputes without resulting to a trial/appeals
for cause
probable bias
venue
most appropriate physical location for trial
federal question
if it arises under US Constitution, federal statute, or federal treaty
negotiation
two parties work it out themselves; no one is neutral
house of representative members
based on population; max 435 total reps
diversity jurisdiction
Fed courts have this when 1)plantiff and defendant are citizens of different states AND 2)amount in dispute exceeds $75,000
long arm statute
A state statute that permits a state to exercise jurisdiction over nonresident defendants
for purposes of the motion to dismiss, court
assumes the facts in the complaint are true
litigation
process of filing claims in courts that ultimately proceed toward or to trial/appeals
voir dire
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
subpoena duces tecum
court order for a person or documents to appear in court as long as it is reasonable, not unduly burdensome, and not privileged
contingency
lawyers only get paid if you get paid; usually 35-40% of the earnings
res judicata
matter already judged; other courts respect initial court decision
exclusive federal jurisdiction subject matter
federal crimes, bankruptcy, intellectual property
burden of proof
the obligation facing a persuasive speaker to prove that a change from current policy is necessary
personal jurisdiction
power over person; resident of the state, formal steps to defend the lawsuit, summons is served on the defendant, long arm statute applies
delta symbol
defendant
before a court can hear a case, it is required that there is
jurisdiction, venue, and standing
statutory control
the enabling legislation that created the agency places controls on it through requirements and restrictions
mediation
two parties and mediator; mediator is neutral
standing
you have to be personally affected by fault in order to sue
motion for summary judgement
filed by any party before trial, affidavits and discovery considered, fact considered in the light of most favorable to the non-moving party, no genuine issues of material fact, not a test of credibility
motion to dismiss
A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed
directed verdict
A ruling made by a judge during a trial, stating that there are no facts in dispute and that the case can be decided on legal issues alone
supoena
Court order for a person or documents to appear in court
in criminal cases, venues are
where the crime happened
exclusive state jurisdiction subject matter
cases involving all matters not subject to federal jurisdiction; i.e. divorce and adoption
deposition
testimony taken before trial under oath. limited to 7 hours in one day
political control
the president has control over agencies through political pressure and through nominations of agency heads. and firing, if part of executive branch congress controls budgets of agencies congress can amend enabling legislation to place limits
subject matter jurisdiction
power over subject matter
where venues may be
area where event leading to dispute took place where the parties reside
two places in which businesses are residence
headquarters where they are incorporated
pi symbol
plaintiff
judicial review
Allows the court to determine the constitutionality of laws
Article 1 of the constitution
splits congress into two houses: house of representatives and senate
exceptions to standing
minors and mentally incompetent persons
in civil cases, venues are
where the defendant resides
Freedom of Information Act
allows any citizen to request information from an agency
interrogatories
25 written questions where attorneys help draft responses
State courts
circuit, criminal and chancery courts court of appeals and court of criminal appeals State supreme courts
reasons to grant motion to dismiss
lack of subject-matter jurisdiction lack of personal jurisdiction improper venue insufficient process insufficient service of process failure to state a claim upon which relief can be granted failure to join an indispensable party
Privacy Act
prohibits agencies from giving information about an individual to other agencies without consent. some exceptions
Senate
2 members from each state
arbitration
neutral 3rd party makes decision for two parties
Marbury v Madison
John Adam's midnight appointments = William Marbury. Madison withheld the papers. Marbury request an Act of Congress to get papers. Result: Supreme Court strikes this down claiming that this act is unconstitutional. = judicial review
Federal courts
US District Courts US Court of Appeals for 1 of 11 circuits supreme court of US
concurrent jurisdiction subject matter
most cases involving federal questions, diversity-of-citizenship cases
in rem jurisdiction
power over property; where you own property in a state with less than minimum contacts
Section 3
(31 cards)