law 1

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law 1
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2012-02-21 00:01:26
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law 1
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  1. Sources of law:
    Constitutions, statues & ordinances (laws), Case law, administrative agency reg, common law
  2. Constitutions
    • Federal vs. Stateo
    • Always the last word
  3. Statues & Ordinances (laws):
  4. Statutes = state and federal
    • levels (codes)
    • Ordinances = county/city
    • ordinances
  5. Case Law (court decisions):
    • “stare decisis” = follow prior
    • decisions
  6. Administrative Agency Reg:
    • Created by legislature (no
    • discrimination, disability act)
  7. Common Law:
    Uniform Law of England
  8. Commerical Law
    • 1 Contracts/buying and selling goods
    • 2 National Conference and
    • Commissions
    • 3 Uniform Commercial Code
  9. National Conference and Commissions
    • -States regulate contracts within
    • the same state)
    • -Created UCC
  10. Uniform Commercial Code
    • 1 Privately drafted (not federal law)
    • 2 Adopted by every state at least in part
    • 3 Contract for buying/selling personal property
  11. Classifications of Law
    • Substantive Law vs. Procedural Law
    • Public vs. Private
    • Civil vs. Criminal
    • Remedies ($) in Law and Equity
  12. Substantive Law vs. Procedural Law
    • 1 Substantive: law of basic principles of
    • contact/rules to follow (ex: tort)

    • 2 Procedural: how a law will be
    • applied/operated
    • Ex: Evidence
    • Due Process = process of law
  13. Public vs. Private
    • Public: Government involvement (criminal prosecution, admin reg)
    • Private: Everything else
  14. Civil vs. Criminal
    • Civil: Person vs. Person
    • Criminal: Person vs. State
  15. Remedies ($) in Law and Equity
    • Remedies: what the person wants (usually money)
    • Law: money (damages)
    • Equity: the right thing to do/an order for someone to do something (mandatory) - man damus, injunction, repleven (someone took my property i want it back), specific performance, recision
    • Equity courts: Divorce and probate courts (moral concept, from law of england)
  16. Jurisdiction =
    the authority of a court to hear a case
  17. Subject Matter (small claims,divorce, bankruptcy, ect.)
    what is Due Process:
    • Personal service (notice of a lawsuit)
    • Long – Arm Statute: business can be sued by
    • consumer (jurisdiction over business doing business in a state even if their home office is not in that particular state)
  18. Original/Appeals
    • Appeals = Reviews
    • Original = Starts the lawsuit
  19. Personal Property is: “In Rem”, Real Property,Personal Property
    • “In Rem” = getting jurisdiction over a property
    • Real Property = land and everything attached
    • Personal Property = everything else (furniture, t.v.,
  20. Venue
    • -Has nothing to do with jurisdiction
    • -Where lawsuit is heard
    • -Geographic location of trial
    • -Pretrial publicity (in regards to jury) – would bring
    • in jury from another county but within the same state
  21. Supreme Courts
    • Oldest court
    • Constitution court
    • Wisconsin= 7 justices
    • U.S. = 9 justices
    • Limited original jurisdictions – usually appeals
  22. State Court System
    General Trial Courts
    • -Where a lawsuit is started
    • -Circuit courts
  23. State Court System
    Appellate Courts
    • -Review only, no witnesses
    • -Error of law in trial?
    • -Cannot file lawsuit
  24. Federal Court System
    -Jurisdiction
    -Federal Question
    -Diverse Citizenship
    (is a federal question) ???
    • -Citizens of two separate states
    • -Need to guarantee the out of state citizen a fair trial
    • -Moved to federal court if damages exceed $75,000 AND
    • the individual requests the case to be moved
  25. Concurrent?
    • -At the same time
    • -One act violates two jurisdictions – Federal and State
  26. U.S. Supreme Court?
    • -9 justices appointed for life
    • -President appoints
    • -Limited U.S. jurisdiction (appeals)
  27. District Courts
    • Trial Courts
    • Federal lawsuit starts here (most)
  28. Judicial Procedure (Civil Lawsuits)
    Summons and Complaints=
    • -Don’t need an attorney, but most have one
    • -Summon = a notice that there is a lawsuit and you are required to respond within “x” amount of days
    • -Et al = “and others”
    • Complaint has to identify theparties
  29. Severe Summons and Complaints
    (Pleadings):
    • -Filed
    • -Judge randomly assigned – can
    • request one change
    • -“Personal service”
  30. Defendant’s Response (Pleadings):
    Large claims how long to resond
    20 days
  31. How long to respond to small claims
    don’t need to respond but you must show up
  32. Defendant’s Response (Pleadings)
    Responses:
    • Motion to dismiss (ex: wrong person), attacks complaint
    • Answer = admit or deny claim
    • Counterclaim = burden of proof on the defendant
    • Cross Complaint = 3rd party files a complaint, bring in 3rd party
  33. Judicial Procedure (Civil Lawsuits)
    Pretrial Hearing
    • -Occurs with judge and attorneys
    • -Try to settle (What’s going on in case)
    • -Scheduling order = Setting a
    • deadline for naming witnesses and talking to witnesses
  34. Judicial Procedure (Civil Lawsuits)
    Motions
    • -Motion to dismiss = temporarily dismisses case
    • -Summary judgment motion = both sides have reached an
    • agreement – no facts, just a matter of law
  35. Judicial Procedure (civil)
    Discovery:
    • Fact finding
    • Depositions:
    • -Sword testimonies, admissible at time of trial
    • -Watch to see if person changes story
    • -Done before trial at lawyer’s
    • office
    • -Preserve evidence, likely to settle because facts are presented
  36. Discovery
    Interrogatories:
    • -questions sent to other side, less expensive
    • -sent back and forth
  37. Discovery
    Demand to Produce Documents:
    Subpoena Duces Tecum =
    order to show up and bring “x” documents
  38. Judicial Procedure (civil lawsuit)
    Trial
    • -Judge decides unless a party requests a jury
    • -If there will be a jury, the first step is to select the jurors (eliminating people)
  39. Judicial Procedure (civil lawsuit)
    Voir Deir
    • asking questions to jury
    • start with 18 and each side gets rid of 3 each
  40. Judicial Procedure (civil lawsuit)
    Trial
    Opening Statement:
    • -Have this if you have a jury
    • -Outlines the case
    • -Both sides give, but defendant usually waits to hear the plaintiff’s case
  41. Judicial Procedure (civil lawsuit)
    Trial
    Plaintiff’s Case: Evidence (what do they bring)
    • -Witnesses
    • Regular = 1st hand info
    • Experts = can give opinion
    • -Documents
    • Other exhibits: pictures,
    • drawings
  42. Judicial Procedure (civil lawsuit)
    Direct examination (whoever is calling) =
    no leading questions (what did you see, what did youhear, what happened then)
  43. Judicial Procedure (civil lawsuit)
    Cross examination (witnesses against you) =
    leading questions (isnt it true that, suggesting the answer) - yes,no, i dont know, i dont remember
  44. Judicial Procedure (civil lawsuit)
    Motion for a Directed Verdict:
    • -Usually done by defendant
    • -Asking judge to direct the verdict in their favor
  45. Judicial Procedure (civil lawsuit)
    Defendant’s Case:
    • -Usually when defendant gives opening statement (gives counterclaim also at this point)
    • -The rest is the same as plaintiff’s case
  46. Judicial Procedure (civil lawsuit)
    Closing Arguments:
    • -Not evidence
    • -Reviewing the trial – witnesses
    • -Plaintiff, defendant, plaintiff
  47. Judicial Procedure (civil lawsuit)
    Decision:
    • -Verdict done by jury (if jury)
    • -Judge gives instructions to jurors
    • -Judge can throw out jury verdict and request a new jury
    • -Judge can enter a judgment against jury verdict
    • -Judge can raise or lower money amount
  48. Judicial Procedure (civil lawsuit)
    Appeal:
    Judge cannot prohibit an appeal
  49. TORTS:
    • Act or omission that causes injury to
    • another.
  50. TORTS:
    Kinds of Torts
    • Intentional Torts (usually crimes)
    • Intentional torts against property
    • Business Tort
    • Negligence (Carelessness)
    • Strict Liability
  51. Intentional Torts (usually crimes)
    Intentional torts against a person:
    • Battery
    • Assault
    • Fraud
    • Defamation of Character
    • Slander
    • Libel
    • Common defense
  52. Battery
    unwanted touching
  53. Assault
    subjective/hard to have assault without battery
  54. Fraud
    • = intentional misrepresentation of face
    • reasonably relied upon by another person (commonly on contracts)
  55. Defamation of Character =
    • Slander = Oral/Public
    • Libel = Written
    • Common defense = “Truth”
  56. Disparagement =
    • making an untrue statement about a product
    • (false advertisement)
  57. Intentional torts against property? Which are?
    • Trespass to land
    • Trespass to personal property
    • Conversion
    • Nuisance
  58. Trespass to land
    occurs when there is “no trespassing” sign
  59. Trespass to personal property
    not theft, but taking something of someone’s
  60. Conversion
    • -personal property
    • -In WI, landlords cannot hold
    • personal property from tenants
  61. Nuisance:
    • -Owner of real property
    • -Zoning: Can’t run a business
    • out of your house if living in residential area
    • -Attractive nuisance
    • EX: pool in backyard needs to
    • be protected with a fence
  62. Business Tort. What does it consist of?
    • -Copyright or trademark infringement
    • -“I own this”
    • -Music, poetry, stories, computers, ect.
    • -Interference with contractual relationships
  63. Interference with contractual relationships
    • -Causing someone to break acontract
    • -Max time an employor can keep you from taking customers = 2 year
    • -Ex: New employer forcing new
    • employee to use customer from old company
  64. Negligence (Carelessness)
    • -Failure to exercise reasonable care (care exercised by a reasonable person)
    • -No negligence under age 7
  65. Joint and Several Liability
    (Leases)
  66. Contributory Negligence (Affirmative) =
    • -negligence on the part of the injured person (usually the plaintiff)
    • - could also be defendant on counterclaim
  67. Comparative Negligence =
    • -Comparing responsibility
    • -Plaintiff’s award (or defendant on counterclaim) is reduced by the plaintiff’s percent of negligence
    • -To win anything, the plaintiff’s (defendant’s on counterclaim) percent must be equal to or less than the defendant’s
    • -As soon as the injured person is more responsible for his or her injkury than any other one individual (you cant recover if you are more liable for your own injuries)
  68. Strict Liability. what is that?
    • -automatic liability (control of dangerous instrumentality)
    • -contributory negligence is not possible.
    • -Negligence does not apply (need a common dangerous factor)
    • -Injured person cannot be negligent
    • -High explosives
    • -Wild animals
    • -Product liability
  69. Ethical Reasoning
    • Duty
    • Outcome
    • Corporate Social Responsibility
  70. Duty
    • Religious
    • Kantian (human nature)
    • Right/Duty
  71. Corporate Social Responsibility
    • -Shareholders = investing money with expectation of making profits
    • -Employees = medical insurance,401K
    • -Society
  72. Sarbanes-Oxley
    Reporting an employee (has to do with financial outcome of company, public view of accounting).
  73. Excessive Executive Pay
    • -Board of Directors (determine CEO’s salary)
    • -Stock options
    • -Misleading regulators (reporting issues in quarterly reporting, ect.)
  74. Employment Practices
    -Foreign Corrupt Practices Act
    (FCPA)
    • Bribes/Accounting
    • $2 million
    • $100,000/5 years in prison
  75. CONTRACTS
  76. Legally enforceable agreement
  77. Types of Contracts
    • Express vs. Implied:
    • Quasi-Contracts:
    • Bilateral vs. Unilateral:
    • Formal vs. Informal:
    • Executed vs. Executory
    • Valid, Void, Voidable, & Unenforceable
    • Standardized Contracts:
  78. Express vs. Implied:
    • Express: giving terms of agreement (can be oral or written)-price, specifications, delivery
    • Implied (in fact): agreed services to be performed, but implied a reasonable price. (
  79. Quasi-Contracts:
    • -Implied in law contract
    • -Not a real contract
    • -Equitable remedy
    • Ex: A white picket fence was installed at the wrong house. However, when the company went to remove
    • the picket fence, the house wanted to keep it. Therefore, the law requires the couple to pay a reasonable price in order to keep the fence.
  80. Bilateral vs. Unilateral:
    • Bilateral: 2 promises (promise for promise)
    • Unilateral: promise in exchange for action
  81. Formal vs. Informal:
    • Formal: simple, promising note (seal, SS under signature)
    • Informal: everything else
  82. Executed vs. Executory
    • Executed: full performance by both parties
    • Executory: one or both need to perform an action
  83. Valid, Void, Voidable, & Unenforceable
    • Valid: If a contract consists of all components (Agreement, consideration, competent parties, and legality)
    • Void: One of the elements is missing therefore not a valid contract
    • Unenforceable: Void contract because missing
    • the element of legality
  84. Standardized Contracts:
    • Ex: Car contract
    • Contract for real estate
  85. Elements – Offer:
    • Intention (objective theory):what most people would have thought based on comments and statements EX; what happens if you look for used car and you go on ebay and you see a intersting car. Are you going to pay the price? No because advertisements are invitations to negotiate (intent to make an offer)-most important
    • Definiteness: subject matter, parties (enough terms to indicate an offer)
    • Communication: offers are affected when received
  86. Termination of the Offer:
    • Sale to third party does not automatically revoke offer
    • By operation of law:
    • -Lapse of time (if not stated in offer, by a reasonable time) EX automatically ends in 15 days
    • -Destruction of the subject matter
    • -Death or incompetence of either party
    • By action of the parties
    • Revocation(not a rejection but taking back,effective upon recieved):
    • -Made by person who made offer(anytime before acceptance)
    • -Option Contracts: cannot be revoked (money has been paid to keep offer open)
    • -UCC (Uniform Commercial Code): only professional
    • merchants/not applying to services or real estate
    • -Rejection
    • -Counter offer – conditions on yes, but.
  87. Firm Offers:
    • -Merchants cannot revoke a firm offer
    • -Personal property (tangible)– not real estate
    • -By a merchant
    • -Must be written and signed by
    • merchant (specific time not exceeding 90 days)
  88. Agreement: Acceptance
    General
    • Mailbox rule: offers are accepted when sent
    • Unequivocal: Yes or no? Clear language, no conditions
    • Silence as Acceptance: Silence is not acceptance unless parties have a pre-arrangement.
  89. When does an acceptance become
    effective?
    • If no special means of communication is not specified
    • Exceptions:
    • -Not used by offeree
    • -Otherwise, effective upon receipt if specified in offer
    • -Where there is a rejection followed by an acceptance
  90. Consideration
    • -Something of value
    • -SUBJECTIVE – this is what the parties decide
    • -Bargain for exchange
  91. Consideration
    Requirements?
    -Must be legally sufficient (individuals are promising/doing something that they are not legally obligated to do or refraining from something).
  92. Forbearance:
    giving up a right – common way disputes are settled
  93. Adequacy of Consideration:
    • -Quantity – how much
    • -Subjective
    • -Ex: If you name your child after me I will give you $5,000. But if you already named your child after me before I asked, I do not owe you $5,000.
    • -$1.00 – transferring of land for development
  94. When is Consideration Not Present?
  95. -Past Consideration – no bargain for exchange (you have already done it)
    • -Performing a pre-existing duty (Ex: a cop can’t collect rewards for finding a criminal)
    • -Employee states that they want more money for performing the exact same duties.
  96. Promises Enforceable Without Consideration
    Promissory Estoppel: ?
    • When a person making the promise can reasonably expect the other person to rely on it and the only way to avoid injustice is to enforce the contract.
    • -cant revoke your promise
  97. Promises Enforceable Without
    Consideration
    Quasi Contract: ?
    mplied in law
  98. Promises Enforceable Without Consideration

    Charitable Subscriptions:
    • -Promising to give a gift
    • -Not enforceable (usually no consideration)

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