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128 terms

CP Exam - General Law Section

Definitions for General Law; NALA Review; CP, CLA, paralegal, legal assistant, exam, review
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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.