The legal system in the United States is comprised of - ANSWER 1) both state and federal constitutions
2) statutes and agency regulations
3) judicial
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Local and state laws may not conflict with - ANSWER federal laws
Primary sources of law - ANSWER constitutional law, statutory law, common law, and administrative law
the law serves to - ANSWER 1) keep the peace
2) maintain the status quo
3) preserve individual rights
4) protect minorities against majorities
5) promote social justice
6) provide for orderly social change
The U.S. Constitution is foundational. - ANSWER State laws can not conflict with fed. laws
U.S. statutory and common law cannot be - ANSWER inconsistent with its provisions.
Congress creates statutory law (with the signature of the president) - ANSWER Introduced as a bill, sent to a committee, pass through house of origination, goes to other (house of rep or senate), if passes goes To joint committee then back to congress for full congressional vote, if passes goes to president (approve or Vito)
courts will interpret constitutional law and statutory law - ANSWER Can create a president, but that is not mean it will be upheld in different jurisdiction
Where there is neither constitutional law nor statutory law, - ANSWER the courts function in the realm of common law
50 states, each of which also has a constitution, or foundational law - ANSWER Can not conflict with federal law/constitution
Both the federal government and the states have created administrative agencies and an agency only has _______ - ANSWER the power that the legislature gives it.
Examples of administrative agencies - ANSWER Ex. OSHA, EPA, FTC, FCC
They use administrative law
an agency will often create regulations, which have the same force and effect as ______. - ANSWER statutes
FCC regulates how cigarettes are advertised on tv is an example of: - ANSWER ADMINISTRATIVE LAW
Congress creates administrative agencies through enabling acts - ANSWER Act includes deligating authority and giving the agency authority as to what it will accomplish
agencies are usually given broad powers to investigate, set standards (promulgating regulations), and - ANSWER enforce those standards
Most agencies are ___________, but some are independent. - ANSWER executive branch agencies
Administrative agencies are given unusual powers (3) - ANSWER legislate (make rules)
investigate
adjudicate (enforce)
Agency powers are limited by - ANSWER executive and legislative controls and by judicial review
Common law - ANSWER Judge made law - A system of law based on precedent and customs
law is made when an appellate (appeals) court endorses a rule to be used in deciding court case
Having agencies with rule-making power is a practical necessity - ANSWER 1) Congress does not have the expertise or continuity to develop specialized knowledge in various areas (e.g., communications, the environment, aviation)
2) it makes sense for Congress to set forth broad statutory guidance to an agency and delegate authority to the agency to propose rules that further the statutory purposes
3) As long as Congress makes this delegating guidance sufficiently clear, it is not delegating improperly - NOT GIVING AWAY CONSTITUTIONAL POWER
antitrust law - ANSWER law intended to promote free competition in the market place by outlawing monopolies
Negative externalities - ANSWER a cost that is suffered by a third party as a result of an economic transaction.
Examples of leveling economic playing field to provide information to consumers: - ANSWER Consumer protection laws (consumers)
Securities laws (investors)
The toxics release inventory laws in environmental law (citizens)
Statutory law is to legislative bodies as common law is to: - ANSWER courts
statutory laws - ANSWER laws passed by a state or the federal legislature. Criminalize actions with set penalties.
Congress - ANSWER Senate (100) + House (435) = Congress; the legislative branch; makes the laws
House of Representatives # of members - ANSWER 435 Members, based on population of the state, changes 10 yrs @census, sometimes states are represented disproportionately (Ak and Delaware only have one rep)
Senate term length - ANSWER 6 years, no max # of terms term limit
Changing a law - ANSWER 2/3 congress vote to create and amendment
House of Representatives term length - ANSWER 2 years, no max term # of terms limit
President is formed by: - ANSWER Stare decisis (let the decision stand)
legal reasoning steps - ANSWER 1.) identify the legal question: issue in dispute
2.)identify the rule of law that applies (may be drawn from president)
3.)analyze facts, reach suitable conclusion
Administrative law - ANSWER the body of law that regulates the operation and procedures of government agencies.
administrative agencies - ANSWER governmental units, either state or federal, that have specialized expertise and authority over some area of the economy
rules or regulations - ANSWER created by administrative agencies and have the force of law
State law claims are generally heard in state courts, while federal question cases are generally heard in ____. - ANSWER federal court.
Federal courts sometimes hear state law claims under ____ - ANSWER diversity jurisdiction
The U.S. Supreme Court is the highest court in the country, and all other courts must ___ - ANSWER follow the precedent in Supreme Court opinions.
A common method of dispute resolution that avoids many of the challenges associated with litigation is _____. - ANSWER alternative dispute resolution
Common (3) methods of dispute resolution are _______. (Remember acronym: No More Attorneys) - ANSWER negotiation, mediation, and arbitration.
law and government are ____. - ANSWER interdependent
Today, much of the law comes from ______. - ANSWER Congress and the state legislatures
define: litigation - ANSWER the process of bringing in a court to settle a dispute, criminal or civil
define: litigants - ANSWER a person involved in a lawsuit
Who carries the burden of proof in a court case? - ANSWER prosecution (criminal trial)
plaintiff (civil trial)
Every person in the United States who wishes to take a case to court is entitled to ______. - ANSWER hire a lawyer
does a lawyer work for client or court? - ANSWER client
Civil and ______ cases can be solved through litigation. - ANSWER criminal
A common method of dispute resolution that avoids many of the challenges associated with litigation is _______. - ANSWER alternative dispute resolution (ADR)
Under both federal and state law, arbitration is favored or disfavored? - ANSWER favored
A decision rendered by an arbitrator is ________ and may be enforced by the courts - ANSWER binding by law
2 advantages of arbitration over litigation - ANSWER 1.) QUICKER - because the arbitrator does not have a backlog of cases and because the procedures are simpler
2.) HIGHER QUALITY DECISION - because the parties can select an arbitrator with specialized knowledge
method of alternative dispute resolution (ADR) that retains power to resolve the dispute to the parties involved. both parties agree to identify the conflict(s) and agree to an outcome to resolve those conflicts - ANSWER Negotiation
Benefits to negotiation (3) - ANSWER 1.) speedy resolution
2.) inexpensive
3.) voluntarily participation
Drawbacks to negotiation (2) - ANSWER 1.) no set rules
2.) either party can bargain unethically
Is there a neutral party or attorneys typically involved in NEGOTIATION? - ANSWER NO.
bargaining power - ANSWER power of a party to create agendas, influence outcomes, and negotiate terms
When the negotiation occurs as a result of a dispute, but not a legal dispute per se, then the party with the weakest _______________ may be in a very vulnerable spot - ANSWER bargaining position
method of alternative dispute resolution (ADR) in which parties work to form a mutually acceptable agreement with a neutral party involved. - ANSWER Mediation (definition)
the method of ADR used in disputes between employers and employees about topics such as workplace conditions, wrongful discharge, or advancement grievances - ANSWER mediation (workplace example)
arbitration (definition) - ANSWER type of adjudication where two parties will try to settle a dispute with a third party, known as the arbitrator
What do arbitrators do? - ANSWER Arbitrators preside over arbitration proceedings and are neutral decision-makers who are often experts in the law and subject matter at issue in the dispute
Arbitrators may be members of the judiciary, but in arbitrations they are not ______ - ANSWER judges
Federal Arbitration Act (FAA) - ANSWER This act requires parties to engage in arbitration when those parties have entered into legally binding contracts with a mandatory arbitration clause.
Arbitration is more or less formal than negotiation and mediation? - ANSWER More
3 Levels of Federal Judicial System - ANSWER 1.) federal district courts
2.) court of appeals (appellate)
3.) supreme court
Which court has original jurisdiction over disputes between states? - ANSWER US Supreme Court
The vast majority of civil lawsuits in the United States are filed in ___________. - ANSWER state courts
Two aspects of civil lawsuits are common to all state courts: - ANSWER trials and appeals
A hair stylist and client disagree over whether the stylist properly styled the client's hair. A third party, who is neutral in the debate, works with both of them in an attempt to resolve their dispute.
Which function does the third party serve in this situation? - ANSWER Mediator (scenario)
Company A and Company B agree to the use of an independent third party to resolve a contract dispute. The third party decides in favor of Company B.
Which type of alternative dispute resolution is this an example of? - ANSWER Arbitrator
What is a primary advantage of alternative dispute resolution (ADR)? - ANSWER Save time and money
Who is the ultimate authority in interpreting the Constitution as it applies to both federal and state law? - ANSWER US Supreme Court
Which court's main function is to be the final arbiter of all federal laws created by Congress? - ANSWER supreme courts
The Constitution gives voice to the idea that people have basic rights and that a civilian president is also the _____. - ANSWER commander in chief of the armed forces.
The Constitution gives instructions as to how the various branches of government must share power and also tries to balance power between the _______ . - ANSWER states and the federal government
The Constitution does not expressly allow for judicial review, but the Supreme Court's ability to _____ constitutional has given the judicial branch a kind of power not seen in other industrialized democracies. - ANSWER declare what laws are (or are not)
To avoid the rise of a tyrannical government, the Constitution carefully grants certain powers to Congress, reserving all other powers to the _______. - ANSWER states
Commerce Clause of the Constitution - ANSWER gave Congress the authority to regulate commerce with foreign nations and among the several states.
dormant commerce clause - ANSWER restriction on states' authority to pass laws that substantially affect interstate commerce
preemption doctrine - ANSWER a doctrine that provides that federal law takes precedence over state or local law
due process clause - ANSWER 14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law
The guarantees of the Bill of Rights apply only to state and federal government action. They do not limit what a company or person in the private sector may do. For example: - ANSWER states may not impose censorship on the media or limit free speech in a way that offends the First Amendment, but your boss (in the private sector) may order you not to talk to the media.
First Amendment - ANSWER 5 freedoms: speech, press, religion, assembly, petition
defamation action brought by a public figure or public official must prove that the defendant not only has his facts wrong, but also lies to the public in a malicious way with __________. - ANSWER reckless disregard of the truth
American Civil Liberties Union (ACLU) - ANSWER national organization that works in courts, legislatures, and communities to defend the individual rights and liberties by the Constitution and laws of the United States
Fourth Amendment - ANSWER Protects against unreasonable search and seizure
Fifth Amendment - ANSWER A constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment without due process of law.
procedural due process - ANSWER procedural laws that protect the rights of individuals who must deal with the legal system
Takings Clause (Eminent Domain) - ANSWER Government may take private property for public use if it provides just compensation
substantive due process - ANSWER the government must create fair policies and laws
Fourteenth Amendment - ANSWER requires that states treat citizens of other states with due process
Equal Protection Clause - ANSWER Constitutional guarantee that everyone be treated equally-14th amendment
preponderance of the evidence - ANSWER The standard of proof in a civil case in which a judge or jury must believe the plaintiff's story and evidence is stronger than the defendant's version.
In a criminal case, the prosecution must prove all elements beyond a reasonable doubt to convict the defendant. (T or F) - ANSWER True
For many years, the United States engaged in discussions with friendly nations as to the reciprocal use of ports and harbors. These discussions led to various multilateral agreements between the nations as to the configuration of oceangoing vessels and how they would be piloted. At the same time, concern over oil spills in Puget Sound led the state of Washington to impose fairly strict standards on oil tankers and requirements for the training of oil tanker pilots. In addition, Washington's state law imposed many other requirements that went above and beyond agreed-upon requirements in the international agreements negotiated by the federal government.
Are the Washington state requirements preempted by federal law? - ANSWER No
Where does the burden of proof lie in a civil case? - ANSWER the plaintiff must produce a preponderance of evidence
Citizens who vote have control over statutory law. How? - ANSWER We elect congressional representatives.
A state has a law that requires you to wear a seat belt, or else you will be fined. Which type of law is this: administrative, constitutional, statutory, or common law - ANSWER Statutory Law
When disputing a rule or regulation within an administrative agency (like the EPA), and you have depleted all sources of appeal within the agency, what do you do next? - ANSWER Appeal to the federal court within your jurisdiction
Supremacy Clause - ANSWER Constitution is the supreme law of the land
Does the president have greater control over independent or executive agencies? - ANSWER Executive (pres. controls the executive branch)
agency rules consist of (2 rules) - ANSWER legislative and interpretive rules
There are many kinds of intentional torts. Some of them involve harm to the physical person or to his or her ______. - ANSWER property, reputation or feelings, or economic interests.
In each case of intentional tort, the plaintiff must show that the defendant intended harm, but the intent to harm does not need to be directed at a particular person and need not be malicious, as long as the resulting harm _______. - ANSWER is a direct consequence of the defendant's actions.
The law of torts developed almost entirely in the __________ courts; that is, statutes passed by legislatures were not the source of law that plaintiffs usually relied on. - ANSWER common law
Through contracts, individuals can craft their own rights and responsibilities toward each other. In the absence of contracts, tort law holds individuals legally accountable for the ________. - ANSWER consequences of their actions
A crime is an act against the people as a whole. Society punishes the murderer; it does not usually compensate the family of the victim. Tort law, on the other hand, views the death as a _______. - ANSWER private wrong for which damages are owed
In a civil case, the tort victim or his family, not the state, brings the action. The judgment against a defendant in a civil tort suit is usually expressed in ______ terms, not in terms of prison times or fines, and is the legal system's way of trying to make up for the victim's loss. - ANSWER monetary
3 types of torts (TIN man) - ANSWER 1) Torts of Strict Liability = "Unleashing a dangerous instrumentality"
2) Intentional torts = being a douche
3) Negligent torts = oops
tortfeasor - ANSWER one who commits a tort
The O.J. Simpson case was both a tort and a crime. Although a crime was committed and he was found not guilty, he was held liable for the two deaths and ordered to ______ to the families of the victims. - ANSWER pay millions in damages
Two of the most obvious intentional torts are: - ANSWER assault (making someone think you will harm them)
battery (physically harming someone)
false imprisonment - ANSWER unlawful restraint or restriction of a person's freedom of movement ||| This tort requires an actual and present confinement.
Intentional Infliction of Emotional Distress (IIED) - ANSWER Extreme and outrageous conduct (measured objectively) that intentionally or recklessly causes severe emotional distress to another.
During school lunch, Pete decided to pull another prank. As Kathy was attempting to sit down with a tray of food, Pete pulled Kathy's chair from beneath her. Kathy fell to the floor.
Which tort is most applicable under these facts? - ANSWER Battery
Defamation - ANSWER Act of harming or ruining another's reputation
slander - ANSWER spoken defamation
libel - ANSWER written defamation
T or F: A statement is not defamatory unless it is false - ANSWER True
Invasion of Privacy - ANSWER revealing personal information about an individual without his or her consent (Tort)
In order to sue for appropriation of a name or likeness, the following must apply: (3) - ANSWER You did not grant permission for the use of your identity.
T he defendant utilized some protected aspect of your identity (varies state-by-state).
The defendant used your identity for his or her immediate and direct benefit (Findlaw, 2018).
After serving 10 years in prison, David was released on grounds of false imprisonment. David's situation represents an example of which type of tort? - ANSWER Intentional (false Imprisonment)
Trespass and Nuisance - ANSWER Trespass involves a physical invasion of land while Nuisance invades the right to use and enjoy land.
attractive nuisance - ANSWER a hazardous condition that can attract and injure children
Trespass to personal property - ANSWER Wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner's possession of personal property.
Conversion tort - ANSWER the civil equivalent to the crime of theft.
Kathy mistakenly parked her car in the driveway of her neighbor, Pete. The following morning, he found that he could not pull his car out of his garage and into the street. Pete knocked on Kathy's door for an hour, but she never answered. What tortuous activity occurred? - ANSWER Because Kathy parked in Pete's driveway, she is guilty of TRESPASS to land, which occurs when someone enters onto, above, or below the surface of land owned by someone else without the owner's permission.
The most hallowed way to turn a contract dispute into a tort lawsuit is through a charge of _____. - ANSWER fraud
fraud - ANSWER A deliberate deception intended to secure an unfair or unlawful gain (tort)
Economic torts are different from intentional torts in that they result from business transactions that cause _____ rather than physical harm - ANSWER economic losses
assumption of risk - ANSWER A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
self-defense - ANSWER use of force that appears reasonably necessary for the self-protection of an intended victim
defense of necessity - ANSWER allows a defendant, in emergency circumstances, to escape tort liability for committing an intentional tort against an innocent person. The defense of necessity is similar to self-defense or defense of others, except that it does not require the plaintiff to have been an aggressor.
2 types of necessity - ANSWER 1. Public Necessity
2. Private Necessity
compensatory damages - ANSWER money intended to restore a plaintiff to the position he was in before the injury
punitive damages - ANSWER Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
T or F: The law in most states permits recovery of punitive damages only when the defendant has deliberately committed a wrong with malicious intent or has otherwise done something outrageous - ANSWER True
Doctrine of Transferred Intent - ANSWER Party A intends to harm party B, but actually injures Party C.
Law transfers perpetrator's intent from target to actual victim.
Victim can then sue perpetrator
Single Recovery Doctrine - ANSWER plaintiff is entitled to only one recovery for a particular harm. If the jury has awarded more than one remedy, the plaintiff should elect a single remedy.
The most common tort claim is based on the ___________. - ANSWER negligence of the defendant
There are many excuses (defenses) to claims of negligence, including (2) - ANSWER assumption of risk and comparative negligence
doctrine of negligence - ANSWER if you are to blame, through your carelessness, for an injury to the person or property of another, you will be liable for the damage.
Negligence - ANSWER conduct that falls below the standards established by law for the protection of others against unreasonable risk of harm
4 elements of tort negligence - ANSWER 1.duty 2. breach 3.causation 4.damages
duty breach + causation damages = negligence
the law imposes no obligation to act in a situation to which people are ________ - ANSWER strangers
The law of negligence requires people to behave with due regard for the foreseeable consequences of our actions in order to avoid _________ - ANSWER unreasonable risks of injury
Negligence per se - ANSWER An act (or failure to act) that breaks the law
Jason and Sherry hired ABC Contractors to build their dream house. Two weeks after moving into the home, the kitchen floor gives way. Jason and Sherry fall through the floor into the basement and are injured. Jason and Sherry can sue for negligence per se. T or F - ANSWER True - These homeowners may be able to prove that the contractor was negligent per se when he failed to build the kitchen floor properly. Regulations that require the contractor to put in minimum support for the floor are designed to protect home dwellers from injury by ensuring that a floor construction does not fail.
malpractice - ANSWER professional negligence
To determine negligence, the court compares the conduct of the defendant with the conduct of _______. - ANSWER a "reasonable person"
Trespasser - ANSWER a person on another's property without consent
If a landowner knows that people habitually cut across the property as a shortcut between two public places, then such people would be _________. - ANSWER anticipated trespassers
Licensees - ANSWER Someone who is on the premises of another by permission or acquiescence of th [Show Less]