CP Exam - General Law Section

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128 terms · Definitions for General Law; NALA Review; CP, CLA, paralegal, legal assistant, exam, review

Court of Chancery

King's Court of Equity

Philosophies of American Law

School of thought concerning the purpose of law and how it should operate

Natural Law

Philosophy which emphasizes the individual's right to make personal choices as long as they do not interfer with another's right to make personal choices

Legal Positivism

Emphasizes the institutional rule of law and which distinguishes law from morality

Sociological Jurisprudence

Promotes society's values as a measuring stick for right and wrong; evaluates legal rule by looking at its social effect.

Legal Realism

Determines what reasonable person would do in a given situation and then sanctions that conduct.

Substantive Law

Legal rule which creates or defines rights and duties.

Procedural Law

Sometimes called Adjective Law, complements substantive law by providing the mechanism to enforce substantive rights and duties.

Public Law

Consists of rules which involve the relationship of government to society as a whole.

Private Law

Consists of rules which involve the relationship of private individuals to each other.

Criminal Law

Rules designed to protect society by providing minimum standards of conduct which must be observed by each of its members.

Treason

An attempt to overthrow the government (U.S. Const. Art. 3)

Felony

Crime for which the maximum possible punishment is either death or imprisonment for one year or more.

Misdemeanor

A crime for which the maximum possible punishment is a fine or imprisonment for less than one year.

Civil Law

Those legal rules which focus on the rights and duties of individuals in relation to each other.

Civil Law Remedies

Are remedial, grant a remedy to enforce a right.

Tort

The wrongful act (or breach) for which the law provides a remedy (typically in the form of monetary damages).

Intentional Tort

Example: Assault, battery, conversion, false improsonment, negligence, trespass

Unintentional Tort

Example: Negligence; or based upon strict liability

Strict Liability

Example: defective product sold to the public.

Contract

Enforceable agreement between two or more parties (requires offer, acceptance, consideration)

Express Contract

Written contract specifically stating the terms of the agreement

Remedy at Law

Typically seeks monetary damages.

Remedy in Equity

Typically requests a specific act.

United States Constitution

Written agreement which unites the states as one cohesive nation and is the supreme law of the land.

Separation of Power

Divides governmental power between three branches (executive, legislative and judicial)

Statute

Written law enacted either by Congress or a state legislature which must comply with the Federal Constitution.

Erie Doctrine

Announced that there is no federal common law.

Stare decisis

Process used by judges to analyze past cases to determine if there are any similar facts and issues present.

Precedent

When stare decises reveals that one or more cases are found, the present case must be decided in the same way.

Federalism

When a state law directly conflicts with a federal law on the same subject, federal law controls.

Police Power

Each state is allowed to regulate itself in any area affecting the general health, safety and welfare of its citizens.

Article I of the Constitution

Establishes Congress as the legislative branch of Federal Government and lists the powers of Congress.

Writ of Habeas Corpus

Article I of the Constitution forbids Congress from suspending the writ of habeas corpur except during rebellion or invasion.

Bill of Atttainder

Article I forbids law directed against a specific person or group specifically prohibited by Article I of the constitution

Ex Post Facto Law

Article I forbids a law which defines conduct as a crime, after the fact.

Article II of the Constitution

Vests executive power in the President.

Article II of the Constitution

Grants judicial review to the United States Supreme Court (and such other inferior federal courts as Congress may establish).

Bill of Rights

First 10 amendments to the Constitution

1st Amendment

Freedom of religion, speech and press; right to assemble and right to petition the government.

2nd Amendment

Right to bear arms.

3rd Amendment

No soldiers quartered in private homes in time of peace.

4th Amendment

No unreasonable search and seizure.

5th Amendment

No double jeopardy or self-incrimination in criminal cases; guarantees due process of law and just compensation when private property is taken.

6th Amendment

Right of accused to speedy trial and to assistance of counsel.

7th Amendment

Right to a jury trial in civil cases over $20

8th Amendment

No excess bail or fines; no cruel or unusual punishment

9th Amendment

Constitutional powers do not diminish rights retained by the people.

10th Amendment

States retain powers not delegated under the Constitution and not prohibited by it to the States.

Amendment 14 to the Constitution

Prohibits States from making or enforcing any laws which diminish the privileges and immunities of any citizen; requires due process of law and equal protection under the law.

Equal Protection Clause

14th Amendment to the Constitution

Substantive Due Process

Requires fundamental fairness in the content of the statute or rule.

Overbreath

The content of a statute is fundamentally unfair when it is overly broad.

Jurisdiction

The power or authority of a court to hear a specific case.

Subject Matter Jurisdiction

Relates to the type of case which a court is authorized to hear (can never be waived by court or parties)

Limited Jurisdiction

A court cannot hear every type of case presented to it - only the types of cases which are listed in its creating constitution or statutory provision.

General Jurisdiction

Means a court can hear any type of case presented to it unless exclusive jurisdiction has been granted to some other court for a particular type of case.

Original Jurisdiction

Means the trial court for those types of cases specified in its creating constitutional provision or statute.

Appellate Jurisdiction

Means that the court is authorized to review decisions of an inferior court.

Exclusive Jurisdiction

Means that no other court has the power of hear this type of case.

Concurrent Jurisdiction

Means that more than one court is authorized to hear a specific type of case.

Personal Jurisdiction

Refers to the Court's power or authority over the parties to the litigation.

Long Arm Statutes

Allows a court to reach across state boundary lines to reach a defendant and to require him to defend himself in the forum state.

In Rem

In relation to the thing

In Res

The property, or thing

Quasi In Rem Jurisdiction

Arises when subject matter of the suit does not relate to property in the court's jurisdiction, but the defendant has property in the court's jurisdiction which can be used to satisfy the judgment.

Venue

Refers to the place of trial, or more specifically, the location within a particular judisdiction where trial should take place (usually in the place where the claim arose, where the defendant resides or where the defendant either has a place of business or an agent.

United States Supreme Court

Court of last resort in the American legal sytem; has nine justices appointed for life.

U.S. Supreme Court Exclusive Jurisdiction

Over actions involving two or more states.

U.S. Supreme Court Concurrent Jurisdiction

Over actions involving ambassadors, public ministers, etc.; disputes between U.S. and a state; and action by a state against citizens of another state or against aliens.

U.S. Supreme Court Jurisdiction

Appellate jurisdiction of all U.S Court of Appeals and each state's highest appellate court

Court of Appeals for the Federal Circuit

Exclusive appellate jurisdiction over all cases involving copyright, patent, trademark and plant variety protection as well as U.S. Claims Court, U.S. Court of International Trade and U.S. Court of Veterans Appeals

U.S. District Court

The trial court for the federal court system

Court of Appeal Jurisdiction

Final decisions of the U.S. District Court except those involving cases within the exclusive appellate jurisdiction of the Court of Appeals for the Federal Circuit

U.S. District Court Jurisdiction

Original jurisdiction over cases involving federal question and diversity of citizenship cases

Federal Question Case

An action arising under the Constitution, laws or treaties of the U.S.

Diversity of Citizenship

Civil action between the citizens of different states where the matter in controversy exceeds $50,000

U.S. District Court Concurrent Jurisdiction

Suits against the U.S. or its officers (concurrent with U.S. Claims Court up to $10,000)

U.S. District Court Exclusive Jurisdiction

Any action for admiralty, maritime, price cases or suits brought by the U.S., its agencies or officers; bankruptcy; copyright, patent, trademark and plant variety; improper collection of Internal Revenue and customs duties; civil rights; affecting ambassadors, public ministers and consuls

U.S. Court of International Trade

Hears disputes between citizens and the government based upon import and export matters.

U.S. Claims Court

Hears claims of citizens against the government based upon federal law or contract

U.S. Tax Court

Hears taxpayer challenges to tax deficiency determinations issued by the IRS

U.S. Court of Military Appeals

Hears appeals from the Courts of Military Review

U.S. Court of Veterans Appeals

Reviews decisions of the Board of Veterans Appeals

Federal Magistrate Court

Assists the U.S. District Court in areas such as minor cases if the parties consent; conducting preliminary hearings in criminal cases and conducting pretrial conferences in federal civil case.

Bankruptcy Court

Original jurisdiction in all bankruptcy matters and in some civil or criminal matters relating to debtors.

Primary Law

Carries the greatest weight in the decision-making process and includes constitution, statutes, administrative rules and regulations and case law of the state.

Mandatory Law

Primary law to the extent that it relates to the facts and issues of the pending case; it must be followed in the pending case.

Secondary Law

Also called persuasive law.

Persuasive Law

May assist a court in reaching a decision in a pending case, but it need not be followed if the court does not wish to.

Case of First Impression

A case where there are no applicable statutes and no precedents in the case law of the jurisdiction.

Conflics of Law

Where the facts of a case occur in a state other than the forum state or when the facts of a case occur in more than one state.

Choice of Law

Conflicts of law questions

Lex loci delicti commissi

State where the wrong was committed

Significant Relationship Rule

The court applies the substantive law of the place having the most significant contacts with the occurrence or event.

Lex Fori

The law of the State where suit is filed

Lex Loci Solutionis

Law of the State where the contract was to have been performed

Lex Loci Contractus

The law of the State where the last act occured which was required to create a binding contract.

Article IV

Request that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of each other State.

Comity

Relates to the recognition of the public acts of one nation by another nation.

Standing

Parties to suit must be personally and immediately affected by the issues of the suit.

Ripe

There must be an actual, full-blown dispute.

Moot

An issue has become irrelevant or academic at any stage of the proceeding, including appeal.

Res Judicata

Final judgment has been rendered in a case; prohibits litigation based on the same facts between the same parties be filed again.

Statute of Limitations

Time limit fixed by the legislature within which a civil action in a certain type of case must be filed.

Tolled

Statute of limitations are put on hold.

Sovereign immunity

Insulates a government from tort liability.

Parental Immunity

Insulates a parent from suit by unemancipated children in the area of child rearing and discipline.

Charitable immunity

Insulates a charitable organization from tort actions.

Contractual immunity

Insulates parties by allowing enforcement of an exculpatory clause on a case-by-case basis.

Judgment

Final order in a law action

Decree

Final order in an equity action

Replevin

Requires return of specific personal property in the defendant's possession

Ejectment

Requires return of specific real property in the defendant's possession

Mitigate

Party must take reasonable steps to minimize his losses.

Compensatory Damage

Focus on the Plaintiff's loss; may consisit of general, special or consequential damages

Punitive Damages

Monetary award to injured party as punishment.

Nominal Damages

A minimum award to vindicate a right which has been violated but no monetary loss occurred

Liquidated Damages

Arises in contact cases only and are agreed upon at the time the contract is made; reasonable estimate of losses in the event of breach.

Equitable Remedies

Fashioned by courts to achieve fairness when legal remedies are inadequate.

Restitution

Focuses on the defendant's gains rather than the plaintiff's losses; prevents a defendant from profiting by their wrongful conduct

Injunction

A personal order to a respondent to do or not do a specific act.

Declaratory Judgment

Is a suit which asks the court to declare the rights of parties in an impending dispute.

Rescission

Equitable remedy available only in contract cases in that it voids the underlying contract.

Reformation

is sought to correct errors in a document evidencing a contract or in a deed of conveyance.

Specific Performance

An equitable remedy available only in contract cases; available when the subject matter of the contract is unique and the only way to make the disappointed buyer whole is to award her the benefit of the contract.

Arbitration

Third party dispute resolution without litigation where the decision of the arbitrator is binding on the parties.

Mediation

Third party dispute resolution where the decision is non-binding on the parties.

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