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54 Cards in this Set
- Front
- Back
Rule of law |
Creates predictability, social stability, and foundation. Protects property rights, applies to everyone. |
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2 elements of the Rule of Law |
Apply to the private marketplace and apply to the lawmakers and the rest of society |
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Substantive and Procedure Law |
Substantive law defines the rights a person is entitled to and the duties a person is obligated to perform. Procedural law established the mechanisms to enforce the rights and duties established. The what and the how. |
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Civil Law |
The individual can take action, common law which is based upon case law (rulings on the bench) |
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Criminal Law |
The government can take action, statutory or written law |
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Public Law |
Concerns the government in its capacity of representing society, most often criminal law, which is designed to punish |
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Private Law |
Involves rules and principles that involve persons as private individuals, most often civil law, which is designed to order payment as remediation |
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Due Process amendments |
5th - federal, 14th state. You cannot deprive a person of life, liberty, or property without due process of law. Must exist in civil and criminal. Guarantees equal protection under the law. |
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4th Amendment |
Unreasonable search and seizure, warrantless arrests, must have probable cause |
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Jurisdiction |
Criminal you arrest to obtain jurisdiction, civil can be harder to determine. |
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ADR |
Alternative Dispute Resolution |
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6th Amendment |
Right to a speedy trial, right to counsel |
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Negotiation |
Direct between parties |
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Mediation |
3rd party brought in to facilitate if negotiation doesn't work |
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Arbitration |
3rd party like mediation except has the authority to make a binding decision, cannot appeal unless on the basis that the arbitrator has exceeded their power |
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Private Trial |
Go before a retired judge with authority to hear cases under state law, can be appealed in the judicial system |
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Deposition |
In person, under oath, to preserve testimony, can cause impeachment when credibility is questioned due to changing stories |
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Interrogatory |
In writing testimony under oath, can eliminate travel cost if the person is not local |
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Inchohate Crimes |
Attempt (try to commit the crime, even if youfailed), Conspiracy (making a plan to commit a crime), Solicitation (addinganother person to the crime for help) |
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Agencies |
Have to have a mission and be funded thru congress. To challenge - have to go thru internal appeals before federal court, but can only appeal on exceeding their scope or violation of due process. |
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Exclusionary Principle |
Primary criminal and property defense tool, very important to protect your property rights, both personal and real. |
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Property Right |
Legal right to exclude or keep people from interfering with what you own, including yourself. |
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Civil Burden of Proof |
Preponderance of evidence, a majority ofreasonable people agree |
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Criminal Burden of Proof |
Beyond a reasonable doubt, actions of theperpetrator cannot be explained or excused by any other legal defense, noobjective person could come to another conclusion |
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Erie Doctrine |
There is no federal common law. Erie doctrinestates that the federal court will uphold the state common law of the statewhere the incident has occurred.
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Philosophy of Stare Decisis |
It has been decided – means we will leave italone, a precedent was set and everything in the future should be decided thesame way. If there is no applicablecommon law for a set of circumstances, stare decisis does not apply.
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Corporate liability for the actions of theiremployees, agents and officers
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A corporation may beheld liable of a criminal act in violation of the Sherman Act (preventsextortion) by the employee in the scope of their employment (within their jobdescription) since the employer and the employee can both benefit from thecrime.
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Mens Rea |
State of mind (measured subjectively (actualthoughts and acts) or objectively (what an independent reasonable person woulddo)
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Actus Reus |
The act or omission. Most crimes require both this and mens rea, except for strict liability. |
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Objective |
Civil- reasonable person would think, not whatthe actual person was thinking, negligence/carelessly/or with reason to know |
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Subjective |
Criminal, literally describes the state of mindthat existed while the crime was committed, intention/knowledge/recklessness |
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Tort |
A civil wrong or injury outside of contract law forwhich a court will provide remedies in the form of compensatory damages and foreseeableconsequences. |
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Proof of Tort Damages |
Duty was owed to the defendant by the plaintiff, there was a breach of duty, the breach was the proximate cause of damages, there was actual damages |
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Intentional Tort |
The feasor acts deliberately, leads to punitive damages (big $) |
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Negligence |
The feasor acts negligently |
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Strict Liability |
The feasor is liable without fault. Liability without defense for particularlydangerous activities. The act itself issufficient, assessing the state of mind is not required. Examples – mislabeled products or trafficviolations |
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Compensatory damanges |
Compensatory damages are designed to compensatethe plaintiff for financial losses incurred as a result of the defendant’stortious actions, such as medical bills or loss of income. |
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Punitive Damages |
Designed to punish the defendant for their intentional act. |
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Multiple Tort Defendants |
Acting in concert – defendantscannot sue each other Actingindependently – can sue other - Plaintiff can sue either or both defendants. |
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Intentional Torts |
Assault – the threatof action Battery– physical damage Falseimprisonment Intentionalinfliction of emotional distress – hard to prove |
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Defamation |
Have to show defamatory statement was made to 3rdparty. Libel is the publication of defamatory material (newspaper, magazines).Slander is defamatory via spoken word. Famous people/political figures cannot recover damages unless they canprove the comments were made with actual malice. |
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Public Nuisance |
Greater geography, excessive noise, pollutingthe air, enforced by the government and has criminal remedies |
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Private Nuisance |
Likely your neighbor, burning, dangerousanimals, intent established by creating or maintaining a condition withknowledge that an interference will occur |
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Negligence |
When a person does something that a reasonable(objective) person would not do, or does not do something that a reasonableperson would do. To recover fornegligence, the plaintiff must show the defendant owed the plaintiff a legalduty to not be negligent, the defendant breached that duty, the negligencecaused the injury, and that the plaintiff suffered actual loss or injury. |
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Sine Qua Non |
But for this... it would not have happened |
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Substantial Factor |
If multiple actors are involved in causing aninjury, all are liable even if the individual actions would not have caused theinjury. |
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Foreseeability of harm |
Determines whether a defendant should be liable for all consequences of the negligent action. This is the primary test to determine if an intervening cause breaks the chain of causation. |
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Contributory negligence |
Only in 5 states, if you contributed in any way to your injury, you cannot recover damages |
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Assumption of Risk |
If you know the dangers, you assume the risk |
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Comparative Fault |
Can reduce the reward by the % the plaintiff contributed to the accident, up to 51-49 |
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Premises Liability - Surrounding land and building owners |
Trespasser – no duty, licensee – reasonable carein conducting property owner’s activities, Invitee – reasonable care to protectthe invitee and give warning of known dangerous conditions. |
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Equal Protection - Strict Scrutiny |
Used on any law that attempts to classify based on race or ancestry. |
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Equal Protection - Intermediate Scrutiny |
Used on any law that uses gender or other affect that is important but not a fundamental right. |
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Equal Protection - Rational Basis |
Addresses the question of whether or not the law is rationally related to a legitimate government interest. |