FINA 2244 Test #1

Civil Law

(1) Laws written or unwritten that specify the duties that exist between and among people, as opposed to criminal matters; or (2) codified or statutory law used in many Western European countries and Japan as distinguished from the common or judge-made law used in the United Kingdom and the United States.

Jury

A body of people selected to hear the evidence in a case presented in court and who are given the power to apply the law to the facts established at trial in determining which party prevails in the matter in dispute whether criminal or civil.

Counterclaim

A claim that a defendant asserts against the plaintiff.

Public Law

A classification of law, generally denoting laws that affects relationships between people and their government.

Private Law

A classification of law, generally denting laws that affect relationships between people.

Choice-of-law

A common provision in a contract that specified what law must be used to resolve a dispute that arises between the parties to a contract.

Precedent

A decision in a case that is used to guide decisions in later cases with similar fact situations.

Protective Order

A decree by a court to protect a person or a legal entity against harassment by another person or to protect certain documents, such as trade secrets, against discovery in the litigation process.

Case

A dispute between two or more parties that is resolved through the legal process.

Summary Judgement

A judgement entered by a trial court as a matter of law, when no genuine issue of law is found to exist.

Trial

A judicial examination of a dispute between two or more parties under the appropriate laws by court or other appropriate tribunal that has jurisdiction.

Hung Jury

A jury so divided in opinion that it cannot agree on a verdict.

Adversary System of Justice

A legal system in which the parties to a dispute present their own arguments and are responsible for asserting their legal rights.

Misdemeanor

A lesser crime that is neither a felony or treason, punishable by a fine and/or imprisonment in other than state or federal penitentiaries.

Standing (CHART)

A party seeking judicial review must demonstrate that is incurred in injury recognized by law as a result of the agency's action.

Forum

A public place where a trial or judicial proceeding is held.

Federal Question

A question in a case in which one of the parties, usually the plaintiff, is asserting a right based on federal law.

Motion to Dismiss

A request that a complaint be dismissed because it does not state a claim for which the law provides a remedy or is in some other way legally deficient.

Forum non conveniens

A rule that allows a court in equity, to decline jurisdiction over a case when it believes that the matter would be better resolves in another forum. Usually this is invoked when most of the parties and witnesses to a case are in another location, making it more convenient for the trial to be held there, rather than where the case was filed.

Felony

A serious class of crime--such as rape, murder, or robbery--that may be punishable by imprisonment in excess of one year or death.

Long-arm statue

A state statute permitting courts to obtain personal jurisdiction over nonresidents as long as the requirements of the statue are met.

Mistrial

A trial that cannot stand in law because the court lacks jurisdiction, because of juror misconduct or because of disregard for some other procedural requirement.

Diversity-of-citizenship

An action in which the plaintiff and the defendant are citizens in different states.

in rem jurisdiction

An action taken by a court against the properly of the defendant.

Reviewability (CHART)

An appellate court has the ability to reconsider an agency decision to determine whether correction or modification is needed.

Excessive Fines

An excessive penalty that is held to violate the Eighth Amendment, This occurs when a fine or penalty, such as a prison term, is too large relative to the legal violation that occurred.

Doctrine of Judicial Immunity

An official or a judge perform regulatory duties is absolutely immune from suit for damages for judicial acts.

Demurrer

An older term for a motion to dismiss a claim for failure to state a cause of action.

Contempt of Court

Any act that obstructs a court in the administration of justice or that is calculated to lessen the court's authority.

Supremacy Clause

Article IV, paragraph 2 of the US Constitution which states that the Constitution and federal laws are supreme over the laws of all states.

Conflict-of-law

Body of law establishing the circumstances in which a state or federal court shall apply the laws of another state, rather than the laws of the state in which it is sitting to decide a case before it.

Case Reporters

Books containing the decisions issued by federal and state courts in which judges provide the legal reasoning for decisions issued.

Morality

Concerns conformity to rules of correct conduct within the context of a society, religion, or other institution.

Due Process Clause

Constitutional limitation requiring that a person not be deprives of life, liberty, or property without a fair and just hearing.

When the president and Congress both agree to bind the US to a treaty it means that the treaty: A. Applies only to federal law, not state law B. Affects dealings with foreign nations only. C. Becomes part of the constitution. D. Becomes part of the law of the nation.

D

Affirmative Defense

Defendant's response to plaintiffs claim that attacks the plaintiffs legal right to being the action rather than attacking the truth of the claim. An example of affirmative defense is the running of the statute of limitations.

Cross-examination

Examination by the attorney representing the adverse party after the other party has examined her witness.

Commercial Speech

Expressions made by businesses about commercial matters or about political matters; the First Amendment protects most truthful speech in this category.

The United States Constitution did not state that there must be a supreme court?

False

Murder or homicide is a ___ offense.

Felony/ criminal

Criminal Law

Governs or defines legal wrongs, or crimes, committed against society. Wrongdoers are punished for violating the rules of society. A person found guilty of a criminal offense is usually fined or imprisoned.

Preponderance of the Evidence

In civil trials, the burden of persuasion to win a verdict requires that the plaintiff processes its claim by having the majority or bulk of the evidence on its side.

Preponderance of Evidence

In civil trials, the burden of persuasion to win a verdict requires that the plaintiff prove its claim by having the majority or bulk of the evidence on its side.

Political Speech

In constitutional law, speech that concerns political, as opposed to commercial matters; given a high level of protection by the First Amendment.

Interrogatories

In the discovery process, a set of written questions for a witness or a party for which written answers are prepared with assistance of counsel and signed under oath.

Personal Service

In the pleadings stage, personal service of the compliant is accomplished by physically delivering it to the defendant.

Service of Process

In the pleadings stage, the delivery of the complaint to the defendant either to her personally or, in most jurisdictions, by leaving it with a responsible person at her place of residence.

Default Judgement

Judgement entered against a party who failed to appear in court to defend against a claim brought by another party.

Magistrate

Judicial officers appointed by the judges of federal district courts pursuant to the Inited States Magistrates Act.

Trial de novo

Latin for "a new" trial, or retrial at an appellate court in which the entire case is examined as through no trial had occurred.

Actus Rea

Latin for "guilty act"; the wrongful deed that constitutes the physical component of a crime; usually must be joined with mens rea to establish criminal liability.

Mens Rea

Latin for "the state of mind" of the actor. The motive.

Common Law

Law Developed by American and English courts by decisions in cases. Unlike statutes, it is not passed by a legislative body and is not a specific set of rules, rather, it must be interpreted from the many decisions that have been written over time.

Substantive Law

Law that defines the rights and duties of persons to each other, as opposed to procedural law, which is law that defines the manner in which rights and duties may be enforced.

En banc proceeding

Legal proceedings before or by the court as a whole rather than before or by a single judge or a panel of judges.

Integrity

Living according to a moral code and standards of ethics.

Reasonable Doubt

No possible doubt.

Closing Arguement

Oral presentation to the jury by the attorneys after the plaintiff and defendant have stated their cases and before the judge charges the jury.

Opening Statement

Oral presentations made to the jury by the attorneys before the parties present their cases.

Subject-Matter Jurisdiction

Power of a court to lawfully affect the thing or issue a dispute.

Personal Jurisdiction

Power of a court to lawfully bind a party involved in a dispute before it.

When a court decides a common law case, it usually relies on _____ from earlier decisions under the doctrine of ____.

Precedent, and stare decisis

Summons

Process in which a court notifies and compels a defendant to a lawsuit to appear and answer a compliant.

Ethics

Rules or standards governing the conduct of members of a profession and how such standard are put into action within the organization.

Equal Protection Clause

Section 1 of the Fourteenth Amendment to the Constitution providing that states treat all persons subject to state laws in a similar manner. "No state shall....deny to any person within its jurisdiction..."

Pleading

Statement of the plaintiff and the defendant that details their facts, allegations, and defenses, which create the issues of the lawsuit.

Deposition

Sworn testimony, written or oral, of a person taken outside of the court.

Voir Dire

The "speak the truth". In the trial stage, preliminary examination of a juror in which the attorneys and the court attempt to determine bias, incompetence, and interest.

Corporate Social Responsibility

The belief that businesses have a duty to society that goes beyond obeying the law and maximizing profits.

Interstate Commerce

The carrying on of commercial activity that affects business in more than one state.

Jurisdiction (CHART)

The complaining party may seek judicial review only in courts that have power to hear the case. Most statutes specify which courts have jurisdiction to hear appeals of agency actions.

Amount of Controversy

The damages claimed on the relief demanded by the injury party in a dispute.

Instructions (charges)

The direction or guideline that a judge gives a jury concerning the law of the case being deliberated.

onstitution

The fundamental law of nation; a written document establishing the powers of the government and its basic structure; the controlling authority over all of the law.

Venue

The geographic area in which an action is tried and from which the jury is selected.

Direct Explanation

The initial examination of a witness by the party on whose behalf the witness has been called.

Compliant

The initial pleading by the plaintiff in a civil action that informs the defendant of the material facts on which the plaintiff bases the lawsuit.

Commerce Clause

The part of the US Constitution that gives Congress the power to regulate interstate commerce; the basis of much federal regulation.

Necessary and Proper Clause

The part of the US Constitution that gives Congress the power to use various powers to execute its functions under the Constitution.

Defendant

The party against whom an action or lawsuit is brought.

Plaintiff

The party who initiates the lawsuit.

Just Compensation (takings Clause)

The portion of the Fifth Amendment meant that states "nor shall private properly be taken for public use without just compensation". The requirement that when the government uses its power to force a private party to give up a properly interest, fair market value should be paid.

Exclusive Jurisdiction

The power of a court over a particular subject matter as provided by statute to the exclusion of other courts.

Appellate Jurisdiction

The power of a court to revise or correct the proceedings in a case already acted upon by a lower court or administrative agency.

Eminent Domain

The power of the government to take private property for public use for fair compensation.

In personam jurisdiction

The power the court has over the person(s) involved in the action.

Discovery

The process in which the parties to a lawsuit gather information from each other to reduce the scope of what will be presented in court; process is determined by rules of procedure and may be limited by the court hearing the case.

Answer

The response of a defendant to the plaintiff's complaint, denying in part or in whole the charges made by the plaintiff.

Jurisdiction

The right of a court or other body to hear a case and render a judgement.

Self- Incrimination

The rule that a witness is not bound to give testimony that would incriminate him with respect to a criminal act.

Procedural Law

The rules of the court system that deal with the manner in which lawsuits are initiated and go forward. Court systems generally have rules regarding pleadings, process, evidence, and practice.

Stare Decisis

The use of precedent by courts; the sed of prior decisions to guide decision making in cases before the courts.

Ripeness (CHART)

There can be no judicial review until the agency's decision is final so the court has the final issues in the case before it and not hypothetical questions of unresolved disputes.

Law

There is no true universally accepted definition. However the book decides to credit the definition: Enforceable rules of conduct set forth by a government to be followed by the citizens of the society.

Exhaustion (CHART)

This is a "gatekeeping" device, requiring that a party seeking judicial review must have sought relief through all possible agency appeal processes before seeking review by the courts.

In the case Davis v. Baugh Industrial Contractors Inc., the Washington state high court held that it would change the common law and abandon an old rule concerning employer liability for worksite injury. T or F?

True

Executive Orders

Under powers granted by the Constitution, or by Congress in legislation, an order by the president to establish or enforce a legal requirement.

Compliance Program

Under the Federal Sentencing guidelines a company, that maintains a compliance program with regulations that apply to the company will be subject to less punishment in case of violations of the law than if there is no good-faith effort to have internal procedures to help ensure that the law is followed within the organization.

Exclusionary Rule

Under the Fourth Amendment, as interpreted by the courts, evidence that has been gathered in violation of the search-and-seizure rules can not be used against a defendant in trial.

Diversity Jurisdiction

When parties to a suit are from different jurisdictions (states or nations), it can create a basis for having a case heard in federal court.

Concurrent Jurisdiction

When two different courts are each empowered to deal with the subject matter at issues in a dispute.

Regulatory Takings

Which a government action results in a reduction in the value of private property; such instances are usually not subject to compensation under the Constitution, unless most of the value of property is destroyed.