Unit 1 of C713
Stare decisis
"Let the decision stand," that is, the ruling from a previous case must be followed.
6 sources of contemporary law
1. United States Constitution and state constitutions; 2. Statutes, which are drafted by legislatures; 3. Common law, which is the body of cases decided by judges, as they follow earlier cases, known as precedent; 4. Court orders, which place obligations on specific people or companies; 5. Administrative law, the rules and decisions made by federal and state administrative agencies; and 6. Treaties, agreements between the United States and foreign nations.
The Branches of Government consists of how many Articles?
3
When a defendant stands accused of a crime, he will look to the 1. 2. 3. to protect his rights.
5th, 4th, 6th
In 1835, French aristocrat Alexis de Tocqueville observed that in the United States most political questions become lawsuits. a. True b. False
A
The system of government used by the Iroquois Native Americans and the League of the Iroquois was the inspiration for our government by providing an example of a(n): a. a two-level government, each with its own specified powers. b. three-branch government, with checks and balances. c. Electoral College system to elect government officials. d. a written Constitution.
A
federal question
A case in which the claim is based on the United States Constitution, a federal statute, or a federal treaty
challenges for cause
A claim that a juror has demonstrated probable bias.
personal jurisdiction
A court's authority to bind the defendant to its decisions
Subject matter jurisdiction
A court's authority to hear a particular type of case
Jurisdiction
A court's power to hear a case
default judgment
A decision that the plaintiff wins without trial because the defendant failed to answer in time
motion
A formal request to the court that it take some step or issue some order.
judgment non obstante veredicto
A judgment notwithstanding the jury's verdict
statutes
A law created by a legislature
harmless error
A mistake by the trial judge that was too minor to affect the outcome.
writ of certiorari
A petition asking the Supreme Court to hear a case
bill
A proposed statute, submitted to Congress or a state legislature.
motion to dismiss
A request that the court terminate a case without permitting it to go further.
Summary judgment
A ruling by the court that no trial is necessary because there are no essential facts in dispute
directed verdict
A ruling that the plaintiff has entirely failed to prove some aspect of her case
counterclaim
A second lawsuit by the defendant against the plaintiff
complaint
A short, plain statement of the facts alleged and the legal claims made
long-arm statute
A statute that gives a court jurisdiction over someone who commits a tort, signs a contract, or conducts "regular business activities" in the state
Which of the following are the two most significant achievements of The Constitution? a. Guaranteeing basic liberties to all citizens b. Creating a limited government of three branches c. Creating statutes d. Establishing the president as the head of the Executive Branch e. Creating the common law
A, B.
Another worker may complain about being required to work long hours. Example of what type of law?
Administrative law
Determine how agencies use rulemaking to create regulations.
Agencies may promulgate legislative rules, which generally have the effect of statutes, or interpretive rules, which merely interpret existing statutes.
________________________ is any formal or informal process to settle disputes without a trial. Mediation, arbitration, and other forms of ADR have grown in popularity.
Alternative dispute resolution
administrative law judge (ALJ)
An agency employee who acts as an impartial decision maker
reply
An answer to a counterclaim
subpoena
An order to appear at a particular place and time. A subpoena duces tecum requires a person to produce certain documents or things.
Natural Law
An unjust law is no law at all.
Alternative dispute resolution
Any other formal or informal process used to settle disputes without resorting to a trial
diversity jurisdiction
Applies when (1) the plaintiff and defendant are citizens of different states and (2) the amount in dispute exceeds $75,000
Congress interprets the law. a. True b. False
B
The American colonists were content to adopt many English laws, including religious restrictions. a. True b. False
B
The primary origin of the American legal system is: a. Spanish law. b. English law. c. French law. d. German law.
B
House of representatives consists of what committees?
Banking, Finance, and urban affairs. education and Labor. Armed services. agriculture. Ways and means judiciary committee
error of law
Because of this, the appeals court may require a new trial.
____________ regulates the rights and duties between parties.
Civil law
Legislature Power is controlled by the
Congress
Congress is made up of the __________ and _______________.
Congress; The House of Representatives
The ______________ authorizes the president to make treaties with foreign nations. These must then be ratified by the United States Senate by a ___________ vote.
Constitution; two-thirds
Negotiate a deal with a game developer. Example of what type of law?
Contract Law
Determine the process of creating a statutory law.
Courts interpret a statute by using the plain meaning rule; then, if necessary, legislative history and intent; and finally, if necessary, public policy.
_______________ prohibits certain behavior for the benefit of society.
Criminal law
__________ law concerns behavior so threatening to society that it is outlawed altogether. _______ law deals with duties and disputes between parties, not with outlawed behavior.
Criminal; Civil
The doctrine of precedent is beneficial because it: a. ensures predictability in legislation that is passed. b. requires that legislators follow established case law. c. allows the president to deviate from established case law. d. ensures predictability in the court system
D
When Congress passes a statute, who has the power to declare the statute unconstitutional? a. The president b. Administrative agencies c. The governor of any state affected by the statute d. The Supreme Court
D
When a judge refers to the doctrine of precedent, he is referring to: a. the idea that principles and rules of law come from many different sources. b. the fact that much of our law is inherited from English law. c. the televising of court cases. d. the principle that decisions in current cases should be based on previous rulings.
D
_________________ were a nomadic tribe that had detailed written laws during the fifth and sixth centuries A.D. a. The Iroquois Native Americans b. The Oneida c. The Romans d. The Visigoths
D
Trial courts
Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions
_____________ is the critical pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case.
Discovery
precedent (state appellate courts ruling)
Earlier decisions by the state appellate courts on similar or identical issues
One of your subordinates might complain about being harassed by a coworker. Example of what type of law?
Employment law
Mediation, a form of dispute resolution, has its roots in the laws of _________ .
England. In the tenth century, England was divided into shires, and the day-to-day administrative tasks were carried out by a "shire reeve." One of the shire reeve's responsibilities was acting as a mediator between feuding families.
The Article 2 of branches of Government is known as
Executive Power
Match the power with its description: Executive power The right to interpret laws and determine their ability. Judicial power The ability to create new laws. Legislative power The authority to enforce the laws.
Executive power - The authority to enforce the laws. Judicial power - The right to interpret laws and determine their ability. Legislative power - The ability to create new laws.
Match the term with its definition. Federalism Gives the ability to create new laws. Legislative powers The principle that each of the three branches of government has power over the other two. Checks and balances A double-layered system of government, with the national government and state governments each exercise important but limited powers.
Federalism - A double-layered system of government, with the national government and state governments each exercise important but limited powers. Legislative powers - Gives the ability to create new laws. Checks and balances - The principle that each of the three branches of government has power over the other two.
Match the contemporary legal idea with its historical influence: High regard for land On the Laws and Customs of England Federalism Sachems and the League of Iroquois Precedent Feudalism Business partnerships Tithing
High regard for land - Feudalism Federalism - Sachems and the League of Iroquois Precedent - On the Laws and Customs of England Business partnerships - Tithing
Appeals courts
Higher courts that review the trial record to see if the court made errors of law
Before signing any deals, you might research whether similar games already exist, which might diminish your ability to market the proposed new game. Example of what type of law?
Intellectual property law
_________________ rules do not change the law. They are the agency's ________________ of what the law already requires.
Interpretive, interpretation
The losing party may ask the trial judge to overturn the verdict, seeking a _____ or a new trial. Judges seldom grant either.
JNOV
common law
Judge-made law
Define common law.
Judge-made law.
The Article 3 of branches of Government is known as
Judicial Power
Legal Positivism
Law is what the sovereign says.
The Article 1 of branches of Government is known as
Legislature Power
reversed (court ruling)
Nullified
class action
One plaintiff represents the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed
affirmed (court ruling)
Permitted to stand
Common law is made up of the accumulation of ___________. The court based its decision in The Oculist's Case upon the fact that _____________.
Precedent; the plaintiff voluntarily sought medical care. Common law is made up of the accumulation of precedent, gathered in case after case. Precedent is made up of older cases, and may be binding on new cases dealing with the same issue The judge in this case held for the doctor because the plaintiff voluntarily sought medical care. The court's holding implies that in order to be liable, the doctor would have had to attack the plaintiff. Although this case may have been decided differently today, the judge's reasoning is an early example of applying precedent.
Executive Power is controlled by the
President of the United States
motion for a protective order
Request that the court limit discovery
You may consider investing your own money in your company's stock, but you may wonder whether you will get into trouble if you invest based on inside information. Example of what type of law?
Securities law
__________ makes the law predictable and this, in turn, enables businesses and private citizens to plan intelligently.
Stare decisis
________________ is a ruling by the court that no trial is necessary because there are no essential facts in dispute.
Summary judgment
Judicial Power is controlled by the
Supreme Court
summons
The court's written notice that a lawsuit has been filed against the defendant
Developed gradually over centuries, requires that judges decide current cases based on previous rulings.
The doctrine of precedent
pleadings
The documents that begin a lawsuit, consisting of the complaint, the answer, and sometimes a reply
beyond a reasonable doubt
The government's burden of proof in a criminal prosecution
In the case Kuehn v. Pub Zone, the court ruled:
The issue was whether or not Pub Zone had a duty to protect Kuehn from the Pagans. The court held that, as a group, the Pagans were known to be dangerous, so Pub Zone had a duty to protect Kuehn from harm. The court emphasized that the duty arose in large party because of the foreseeability of this particular harm. In general, a business owner is not an insurer of the visitor's safety.
A court is set to hear Miller v. Walnut, Corp., in which the plaintiff is suing because of a severe allergic reaction he suffered after eating soup from a mislabeled can. Five years earlier, the same court decided Washington v. SnackCo involving a plaintiff who had an allergic reaction to some cookies that were mislabeled in a similar way. Based on the principle of stare decisis, the Miller judge will likely...
The judge is likely to apply the same legal rules used in Washington. Stare decisis is the principle that precedent is binding on later cases, and for the most part courts adhere to previous rulings on similar issues. Courts typically apply the laws from their own state in preference to laws from other states. There is nothing in the facts to indicate that the judge has any reason to dismiss the case. The president has the power to veto a statute but a judge does not.
defendant
The party being sued
appellant
The party filing the appeal
appellee
The party opposing the appeal
plaintiff
The party who is suing
deponent
The person being questioned in a deposition
jurisprudence
The philosophy of law
preponderance of the evidence
The plaintiff's burden of proof in a civil lawsuit
veto
The power of the president to reject legislation passed by Congress
Litigation
The process of filing claims in court and ultimately going to trial.
voir dire
The process of selecting a jury
sovereign
The recognized political power, whom citizens obey.
peremptory challenges
The right to excuse a juror for virtually any reason
precedent
The tendency to decide current cases based on previous rulings.
modify
To affirm the outcome but with changes
affirm
To allow the decision to stand
cross-examine
To ask questions of an opposing witness
adjudicate is...
To hold a formal hearing about an issue and then decide it
reverse and remand
To nullify the lower decision and return the case for reconsideration or retrial
__________ courts determine facts and apply the law to the facts
Trial
To pass Congress, a bill must get a simple majority vote from both The House and Senate. True or false?
True
____________ is the process of selecting jurors in order to obtain an impartial panel.
Voir dire
direct examination
When a lawyer asks questions of her own witness
Legal Realism
Who enforces the law counts more than what is in writing.
briefs
Written arguments on the case
bystander's obligations:
You have no duty to assist someone in peril unless you created the danger.
Glen lives in Illinois. He applies for a job with a Missouri company, and he is told, amazingly, that the job is open only to white applicants. He will now sue the Missouri company under the Civil Rights Act, a federal statute. Can Glen sue in federal court? a.Yes, absolutely. b.Yes, but only if he seeks damages of at least $75,000. Otherwise, he must sue in a state court. c.Yes, but only if the Missouri company agrees. Otherwise, he must sue in a state court. d.No, absolutely not. He must sue in a state court.
a
litigator
a lawyer who handles court cases
Which of the following are actions that a court has the authority to take when a defendant violates an injunction? a. Imprison the defendant b. Fine the defendant c. The court has no power to enforce an injunction d. Decide against the defendant after the trial
a, b
Which of the following are the basic liberties granted by the First Amendment? a. Free speech b. Right to a speedy trial c. Free press d. Free exercise of religion e. Right to attend school
a, c, d
Agencies ____________ cases, meaning that they hold hearings and decide issues. ____________ generally begins with a hearing before an administrative law judge and may involve an appeal to the full agency or ultimately to ___________ court.
adjudicate, Adjudication, federal
Congress creates federal _____________________________ with enabling legislation. The ____________________ Procedure Act controls how ____________ do their work.
administrative agencies, Administrative, agencies
The day-to-day work of enforcing statutes is handled by...
administrative agencies. Congress passes statutes, but does not enforce them. Instead, government agencies handle the day-to-day implementation of the statutes. These government agencies are created by Congress.
Most adjudications begin with a hearing before an ________________.
administrative law judge (ALJ)
a precedent case is ....
an earlier case that decided the issue
An _______________ court has many options. The court may affirm, upholding the lower court's decision; modify, changing the verdict but leaving the same party victorious; reverse, transforming the loser into the winner; and/or remand, sending the case back to the lower court.
appeals
____________ courts generally accept the facts found by the trial court and review the trial record for errors of law.
appeals
Once a court has decided a particular issue, it will generally _____________________________________ in the future.
apply the same rule in similar cases
The burden of proof in a civil trial is to prove a case . The burden of proof rests with the . a.beyond a reasonable doubt; plaintiff b.by a preponderance of the evidence; plaintiff c.beyond a reasonable doubt; defendant d.by a preponderance of the evidence; defendant
b
To become law, the bill must be voted on and approved by __________.
both houses
The plaintiff's ________________ in a civil lawsuit is preponderance of the evidence, meaning that its version of the facts must be at least slightly more persuasive than the defendant's. In a criminal prosecution, the government must offer _____________________________ in order to win a conviction.
burden of proof, proof beyond a reasonable doubt
Barry and Carl are next-door neighbors. Barry's dog digs under Carl's fence and does $500 worth of damage to Carl's garden. Barry refuses to pay for the damage, claiming that Carl's cats "have been digging up my yard for years." The two argue repeatedly, and the relationship turns frosty. Of the following choices, which has no outside decision maker and is most likely to allow the neighbors to peacefully coexist after working out the dispute? a.Trial b.Arbitration c.Mediation
c.
The Founding Fathers gave each of the three branches of government power over the other two branches, a concept called ........
checks and balances. Each of the three branches has power over the other two, a system of checks and balances. The Founding Fathers wanted to be sure that each branch could limit the other so that no one branch would be supreme. Federalism is the double-layered system of government in which the federal government and the state government each exercise important but limited power.
The ___________________ evolves in awkward fits and starts because courts attempt to achieve two contradictory purposes: predictability and flexibility.
common law
Accumulation of precedent, based on case after case, makes up....
common law is made
When the house of rep and senate meet together it is called a ___________________.
conference committee
Most government agencies are created by...
congress Congress passes statutes, but does not enforce them. Instead, government agencies handle the day-to-day implementation of the statutes. These government agencies are created by Congress.
Most government agencies are created by __________. Agencies have the power to create laws called ___________.
congress; regulations
Congress passes a bill, but the president vetoes it. Can the bill still become a statute? a. No. A bill cannot become a statute without the president's signature. b. Yes. The Senate can override the veto if 2/3 of its members vote in favor. The bill will then become a statute. c. Yes. The House of Representatives can override the veto if 2/3 of its members vote in favor. The bill will become a statute. d. Yes. Congress can override the veto if 2/3 of its members vote in favor. The bill will then become a statute.
d
law of evidence
determines what questions a lawyer may ask and how the questions are to be phrased, what answers a witness may give, and what documents may be introduced.
____________________ is permissible only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it.
directed verdict
Congress creates a federal agency by passing ________________________________
enabling legislation
Some federal agencies are part of the _____________ branch while others are _______________ agencies.
executive, independent
Almost all statutes are created by administrative agencies. true of false
false
Precedent set in South Carolina courts is binding on all courts in the U.S. true or false?
false
Senate consists of what committees?
foreign relations appropriation aeronautical and space sciences. armed services judiciary committee
Courts decide _____________ cases; they do not regulate ___________.
individual, industries
Important forms of discovery include...........
interrogatories, depositions, production of documents and objects, physical and mental examinations, and requests for admission.
Agencies have broad ______________ powers and may use ___________ and, in some cases, _________________ searches to obtain information.
investigatory, subpoenas, warrantless
Generally, both plaintiff and defendant may demand a _____ in any lawsuit for money damages.
jury
breakdown the different sources of law statues created by ___________ basic liberties created by ___________ ____________ written by judges. regulations created by ____________. Common Law created by ___________.
legislature constitutional amendments court orders Administrative agencies precedent
It is important to note that precedent is binding only on _______ courts.
lower; For example, if the Supreme Court decided a case in one way in 1965, it is under no obligation to follow precedent if the same issue arises in 2015.
A benefit of stare decisis is its ability to...
make the law predictable. Stare decisis is the principle that precedent is binding on later cases. This principle makes the law predictable, which, in turn, enables businesses and private citizens to plan intelligently.
Stare decisis ruling
means "let the decision stand," indicating once a court has decided a particular issue, it will generally apply the same rule in future cases.
a neutral person, called a _____________, attempts to guide the two disputing parties toward a voluntary settlement.
mediator
A __________ is a formal request to the court.
motion
When the president vetoes a bill, Congress has one last chance to make it law: also known as an _____________.
override
A complaint and an answer are the two most important __________; that is, documents that start a lawsuit.
pleadings
Treaties with foreign nations are as made by the __________ , and ratified by the _________. They are as binding upon all __________ as any ________ statute.
president, Senate, citizens, federal
To create a new rule is to ______________ it. Agencies ________________ two types of rules: ______________ and ______________.
promulgate, promulgate, legislative, interpretive
The _______________ determine what questions may be asked during trial, what testimony may be given, and what documents may be introduced.
rules of evidence
This philosophy can be simply stated: Law is what the ____________ says it is.
sovereign
The principle that precedent is binding on later cases is called _______________.
stare decisis, which means "let the decision stand."
The four most important limitations on the power of federal agencies are __________ control in the enabling legislation and the APA; ____________ control by Congress and the president; __________ review; and the ______________ control created by the FOIA and the Privacy Act.
statutory, political, judicial, informational
At times an agency will want to conduct a __________ search of an enterprise and ________ any evidence of wrongdoing.
surprise, seize
There are many _________ of courts, one __________ and one in each state. A ____________ court will hear a case only if it involves a federal question or diversity jurisdiction.
systems, federal, federal
Legislative power
the power which gives the ability to create new laws.
Judicial Power
the power which gives the right to interpret laws and determine their validity.
Executive power
the power which is the authority to enforce laws
The Founding Fathers divided governmental power into three branches because......
they did not want power to be centralized. The Founding Fathers divided legal authority into three branches (Legislative/Executive/Judicial) because they did not want power to be centralized. Although the structure of many U.S. laws is based on English law, the Founding Fathers did not want power centralized in a monarch, as it was in England. Federalism also deals with a division of authority, but refers specifically to the double-layered system of government in which the federal government and the state government each exercise important but limited power.
Statutes can cover any topic as long as...
they do not violate the constitution. Article 1 gives Congress the ability to create new laws. They have broad scope on what topics the laws can cover, but the statutes cannot violate the Constitution.
Administrative agencies use three kinds of power
they make rules, they investigate, and they adjudicate
If the president refuses to approve, or vetoes a bill, it does not become a statute unless Congress overrides the veto. To do that, both the House and the Senate must approve the bill by a __________ majority.
two-thirds
The __________ is the jury's decision in a case.
verdict