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Test #1 9/23/2013


set of rules, created and enforced by gov


philosophy of law

Concepts of Jurisprudence

Law as Power, Legal Positivism, Legal Realism, Natural Law

Law as Power

under color of authority

Legal Positivism

Law is what the Law says, no questions

Legal Realism

who is in position to enforce the law (judges)

Natural Law

human rights regardless of what the law says

Parts of Free Market System

Law, Rule of Law, Property, Importance of Rule of Law to Business

Rule of Law

law is generally and equally applicable to to everyone, system of published laws under which gov and people are bound


legal rights as asset, exclusivity of others

Importance of Rule of Law to Business

creates predictability and certainty, provides for peaceful resolution of disputes, provides incentive to maximize asset, attempt to minimalize liability

Classifications of Law

Common and Civil, Public and Private, Civil and Criminal, Substantive

Common and Civil Law

judge made law

Public Law

constitutional, administrative, criminal

Private Law

property, contracts, torts (reasonable)


unfairly causes someone else to suffer loss or harm

Civil Law

usually between two individuals, monetary compensation

Criminal Law

violate the law and put society at risk, punishment

Burden of Proof

in civil case, it is less than that of a criminal case beyond a reasonable doubt (proponderance in civil case)

Substantive Law

law that determines rights and duties of individuals

Procedural Law

laws, mechanisms, procedures put in place to determine substantive issues

Sources of Law

Constitution, Legislation, Administrative Regulation, Judicial Decisions


Federal: grant of power
State: often limits federal gov power

Concepts of US Constitution (3)

set up 3 branches of gov, states retain all powers not given to the federal gov, basic rights guaranteed to individuals


law passed by elected officials

Administrative Regulation

created by administration agencies such as SEC, EPA in order to make rules

Judicial Decisons

judge made law or common law


standard when judge is faced with similar case and should look at standard

Stare Decisis

when looking at past decisions of precedents, should base opinion consistently with prior decisions

Legal Sanction Enforcement and Penalties

Criminal Conduct, Breach of Contract, Tortious Conduct, Violations of Statutes

Criminal Conduct


Breach of Contract

monetary damages

Compensatory Damages

put injured person where they would have been

Tortious Conduct

compensatory: make plain of whole

Violations of Statutes and Regulations

fines, damages, jail time


Judge, Justice, Magistrate
Juror, Lawyers

Organization of Court

Federal and State
Trial, Court of Appeals and Supreme Court


presides over procedures of case

Appellate Court

no witnesses, can sustain the trial courts decision, reverse or remain

Writ of Certiorari

decision by the Supreme Court to hear an appeal from a lower court


hear evidence and make factual determination

Petit Jury

6th and 7th Amendments which are trial rights, decide guilty or not guilty and liable or not liable , judge provides law, then they render a verdict

Traditional Role of Jurors

previously not allowed to take notes or ask questions, now can

Unanimous for Jurors?

federal requires unanimous, varies by state


first duty to admin or justice (ethical and correct before else)

Adversarial System

lawyer is a zealous advocate to client (if client committed murder, the lawyer has to support reasonable doubt)


lawyers get sued for mistakes

Trial Court (State)

only court that hears evidence, determines law to be applied, small claims court for minor financial issues

Appellate Court (State)

review judgment of trial court

Supreme Court (State)

have to file a Write of Certiorari, not entitled to second review, few cases are accepted

Federal Courts

jurisdiction limited by Congress, jurisdiction limited to federal question, the US as a party, controversy between states, diversity of citizenship

Appellate Court (Federal)

13 Court of Appeals, parties entitled to review, simple majority rules

US Supreme Court (Federal)

Writ of Certiorari, questions of Federal Importance, Constitutional Issues, Conflicting Decision, Decision becomes law of the land, not subject to review

Judicial Review

power of courts to review action of legislative and executive branch and declare them to be unconstitutional (created in Marbury v. Madison)

Judicial Restraint

only use judicial review in unusual cases, change comes from legislation, look at intent of founding fathers, strong belief of precedent, belief in state's rights

Judicial Activism

court corrects social wrongs, less dependent on precedent, Constitution is a living/breathing document that changes over time, less concerned about state rights (federal > state)

Majority Opinion

5 Justices carries the day

Concurring Opinion

justices agree, but for different reasons

Dissentting Opinion

justices say why they voted so

Dicta vs. Holding

not binding by lower courts, theorize
obligated to follow


person charging


person being charged


initiates lawsuit


asked to sustain lawsuit of trial court

3rd Party Defendant

defendant brings someone in (passing blame - liable to plaintiff)

Standing to Sue

personal stake in case

Subject Matter Jurisdiction

does court have authority over this type of case?

General Jurisdiction

many types of cases

Limited Jurisdiction

specific court cases

Personal Jurisdiction

jurisdiction over the parties, plaintiff submits, defendant

Minimum Contracts

would it be fair to require defendant to defend in this specific court

Long Arm Statute

serve notice to out of state defendant


need to appear in court (state)


tried whenever crime is committed


state/controversy asks for defendant to be transported back for trial


document that initiates lawsuit

Motion to Dismiss

court doesn't have jurisdiction over me


answer to complaint


response to complaint

Motion for Judgment on Pleadings

no dispute, ask court to decide after complaint and answer


no response by defendant, win by default


no surprises, both sides know case


written questions the party answers before trial


oral questions asked by lawyer to defendant; phrase questions to attack credibility at trial

Request for Production of Documents

use of documents during trial (written questions)

Physical and Mental Exams

examinations of those involved in case


very broad, often abused


request by party for court to do something, pretrial determination, numerous types

Voir Dire

jury is chosen

Peremptory Challenge

ask judge for removal, limited number

Challenge for Cause

documentation to judge that juror is biased

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