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169 Cards in this Set
- Front
- Back
Law
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Important function of _____________ is to provide stability, predictability, and continuity so that people can be sure of how to act/function in society.
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Law
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A ________ consists of enforceable rules governing relationships among individuals and between individuals and their society. They establish rights, duties, and privileges that are consistent with the values and beliefs of their society
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Jurisprudence
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_________ involves learning about different schools of ____________ thought and discovering how the approaches to law characteristic of each school can affect judicial decision making.
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Judge
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A ____________'s function is to interpret and apply laws.
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Legislative
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The ___________ branch makes laws.
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Breaching
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When one breaks, or fails to perform a contract.
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Ethics
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The study of what constitutes right or wrong behavior.
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Ethical
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Business decision makers must determine whether or not a decision is legal, but also if it is ___________.
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Primary Sources of Law
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Sources that establish the law such as US Constitution and other constitutions of various states, statutory law, state legislatures or local government, regulations created by administrative agencies (ex. Food and Drug Administration), and case law and common law doctrines.
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Secondary Sources of Law
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Books and articles that summarize and clarify the primary sources.
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Constitutional Law
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The law that is based on the U.S. Constitution and the constitutions of the various states.
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The U.S. Constitution
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The supreme law of all the land.
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Statutory Law
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Laws enacted by legislative bodies at any level of government such as the statues passed by Congress or by state legislatures. It also includes local ordinances or statutes passed by municipal or county governing units to govern matters not covered by state or federal law.
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Federal Statue
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A law that applies to all states.
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State Statue
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A law that applies to the state it was made official in.
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National Conference of Commissioners on Uniform State Laws (NCCUSL)
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In 1892 a group of legal scholars formed the ___________________ to draft uniform laws.
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Uniform Laws (Model Laws)
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_______________ are for the states to consider adopting. Each state can chose to adopt or reject the law, only if a state legislature adopts a _____________ does that law become part of the statutory law of that state.
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Uniform Commercial Code (UCC)
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The __________________ was first issued in 1952 and provides a uniform, yet flexible, set of rules governing commercial transactions. It was the most ambitious uniform act of all.
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Administrative Law
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_____________ consists of the rules, orders, and decisions of administrative agencies.
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Case Law
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The doctrines and principles announced in cases and governs all areas not covered by statutory law or administrative law and is part of our common law tradition.
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Common Law
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A body of general rules that applied throughout the entire English realm.
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Courts of Law
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The courts that awarded land, items of value or money became known as _______________.
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Equity
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A branch of law founded on what might be described as notions of justice and fair dealing that seeks to supply a remedy when no adequate remedy at law is available.
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Courts of Equity
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A court that decides controversies and administers justice according to the rules, principles, and precedents of equity.
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Defendant
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The party being sued.
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Plaintiff
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The suing party.
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Statues of Limitations
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Fixed time periods for different types of cases.
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Legal Precedent
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A decision that furnished an example of authority for deciding subsequent cases involving similar legal principles or facts.
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Reporters
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Cases are published, or “reported” in volumes called __________.
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Stare Decisis
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A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
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Jurisdiction
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An area in which a court or courts have the power to apply the law.
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Stare Decisis
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Decisions made by a higher court are binding on lower courts and a court should not overturn its own precedents unless there is a compelling reason to do so.
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Binding Authority
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A case precedent, statue or other source of law that a court must follow when deciding a case.
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Legal Reasoning
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The reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to the specific facts or circumstances of that case.
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Cases on Point
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Previously decided cases that are as similar as possible to the one under consideration.
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Substantive Law
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Consists of all laws that define describe, regulate, and create legal rights and obligations.
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Procedural Law
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Consist of all laws that delineate the methods of enforcing the rights established by substantive law.
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Civil Law
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Spells out the rights and duties that exist between persons and between persons and their governments, as well as the relief available when a person’s rights are violated.
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Criminal Law
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Concerned with wrongs committed against the public as a whole.
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Citation
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A reference to a publication in which a legal authority, such as a statue or a court decision or other source, can be found.
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United States Code (USC)
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The _________________ arranges all existing federal laws by broad subject.
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State Codes
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_____________ follow the USC pattern of arranging law by subject and may be called codes, revisions, compilations, consolidations, general statues or statues, depending on the preference of the state.
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Code of Federal Regulations (CFR)
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Rules and regulations adopted by federal administrative agencies are initially published in the __________________.
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Trial Courts
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___________ are on the bottom tier and decisions from a trial court can be appealed to a higher court. Decisions from state ____________ are typically filled in the office of the clerk of the court.
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Appellant
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When a case is appealed from the original court or jurisdiction to another court or jurisdiction, the party appealing the case is called the ______________.
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Appellee
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The party again whom the appeal is taken.
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Briefing
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Summarizing the case.
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Laws
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______ help provide predictability and stability.
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Torts
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Negligence, slander, employee accidents, etc.
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Federal Statute
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A __________ statute applies to all states.
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State Statute
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A __________ statute applies only within the states boarders.
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State
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The uniform commercial code is a ____ law.
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Statute of limitations
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You have a certain amount of time to file your claim.
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On point case
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A case where law and legal issues are dead on and would follow precedent.
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Cases of first impression
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There have never been cases like this before, what is decided here is usually precedent.
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Precedent
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_____ is generally binding on judges.
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Because they are independent court systems.
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Why aren't federal courts superior to state courts?
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Judicial Review
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The judiciary can decide, among other things, whether the laws or actions of the other two branches are constitution. This is known as ______.
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Marbury v. Mason
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The power of judicial review was decided because of ________.
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Jurisdiction
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Before any court can hear a case, it must have ________ over the person.
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Personal jurisdiction
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Jurisdiction over any person or business that resides in a certain geographical area.
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In rem jurisdiction
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Jurisdiction over property.
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Long arm statute
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A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state.
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Minimum contacts
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The long arm statute is plausible, only if it is demonstrated that the defendant had sufficient _____.
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Subject matter jurisdiction
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Refers to the limitations on the types of cases a court can hear.
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Probate courts
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State courts that handle only matters relating to the transfer of a person's assets and obligations after that person's death.
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Courts of original jurisdiction
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Courts in which lawsuits begin, trials take place, and evidence is presented.
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Diversity of citizenship jurisdiction
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Has two requirements 1) the plaintiff and defendant must be residents of different states, and 2) the dollar amount in the controversy must exceed $75,000.
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Sliding-scale standard
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Determining when the exercise of personal jurisdiction over an out-of-state Internet based defendant is proper.
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Venue
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Concerned with the most appropriate location for the trial.
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Standing to sue
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A sufficient "stake" in a matter to justify seeking relief through the court system.
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Trial courts
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Courts in which trials are held and testimony is taken.
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Question of fact
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Deals with what really happened in regard to the dispute being tried.
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Question of law
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Concerns the application or interpretation of the law.
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Question of fact
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Juries decide __________.
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Question of Law
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Judges decide __________.
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Appellate court
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The _____________ court decides questions of law.
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U.S. circuit courts of appeals
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The decisions of _________ are binding on all courts within the ______ court's jurisdiction and are final in most cases.
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Writ of certiorari
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An order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.
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Denial
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_______ means that the lower court's decisions remains the law in that jurisdiction.
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Litigation
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The process of resolving a dispute through the court system.
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Negotiation
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A process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them.
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Mediation
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A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution.
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Arbitration
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An arbitrator (a neutral third party or a panel of experts) hears a dispute and imposes a resolution on the parties.
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Legally binding
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Usually in arbitration, they agree that the third party's decision will be ____________ ______________, but they don't always have to decide this.
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Federal Arbitration Act (FAA)
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Enforces arbitration clauses in contracts involving maritime activity and interstate commerce.
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Early Neutral Case Evaluation
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The parties select a neutral third party (generally an expert in the subject matter of the dispute) to evaluate their respective positions.
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Mini-trip
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Each party's attorney briefly argues the party's case before the other and a panel of representatives from each side who have the authority to settle the dispute.
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Summary Jury Trials
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The parties present their arguments and evidence and the jury renders a verdict.
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American Arbitration Association (AAA)
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Handles more than 200,000 claims each year about ADR services.
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Online Dispute Resolution
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The settlement of disputes in online forums.
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Forum-Selection or Choice-of-Law
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These clauses designate the jurisdiction where any dispute arising under the contract will be litigated and the nation's law that will be applied.
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Adversarial System of Justice
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Parties can either represent themselves or hire attorneys to represent them. Each lawyer acts as his or her client's advocate, presenting the client's version of the facts in such a way as to convince the judge that this version is correct.
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Procedural Rules
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Provide a framework for every dispute and specify what must be done at each stage of the litigation process.
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Federal Rules of Civil Procedure (FRCP)
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All civil trials held in federal district courts are governed by these rules.
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Pretrial, trial, posttrial
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The litigation process has three phases: ______, ________, and _______.
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Fixed Fees
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Charged for the performance of such services as drafting a simple will.
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Hourly fees
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Computed for matters that will involve an indeterminate period of time.
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Contingency Fees
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Fixed as a percentages of a client's recovery in certain types of lawsuits. If the lawsuit is unsuccessful, the attorney receives no fee, but the client will have to reimburse the attorney for any out-of-pocket costs incurred.
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Complaint
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This document states the following: 1) The facts showing that the court has jurisdiction, 2) the facts showing that the court has jurisdiction, 3) the remedy the plaintiff is seeking.
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Copy of a complaint and a summons
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Two things the plaintiff must deliver to a defendant.
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Summons
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A notice requiring the defendant to appear in court and answer the complaint.
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Answer
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The defendant's response to the complaint. The defendant either admits/denied the allegations in the plaintiff's complaint and may also set forth defenses to those allegations.
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Counterclaim
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When the defendant denies the allegations and sets forth his/her own claims.
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Motion
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A procedural request submitted to the court by an attorney on behalf of her or his client.
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Motion to Dismiss
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Requesting the court to dismiss the case for the reasons stated in the motion.
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Motion for Summary Judgement
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The court to grant a judgement in that party's favor without a trial.
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Affidavits
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Sworn statements by parties or witnesses, or documents such as a contract.
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Discovery
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The process of obtaining information from the opposing party or from witnesses prior to trial
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Deposition
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A sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official.
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Interrogatories
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Written questions for which written answers are prepared and then signed under oath.
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Request for Admissions
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One party can serve the other party with a written request for an admission of the truth of matters relating to the trial.
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Items either party can request for
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Documents, objects, medical examinations, etc.
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E-evidence (Electronic evidence)
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Consists of all computer-generated or electronically recorded info, such as e-mails, documents, etc.
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Right to a Jury Trial
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The seventh amendement states
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Voir Dire (jury selection)
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Before a trial commences, a panel of jurors must be selected this process is called ______.
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Verdict
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A decision that expresses the jury's factual findings in the favor of one party.
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Motion for a New Trial
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This motion will only be granted if the judge is convinced, after looking at all the evidence, that they jury was in error, but does not feel it is appropriate to grant judgement for the other side.
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Appellate Review
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Has these four options after reviewing a case, it can affirm, reverse, remand, make a decision in part, or modify a decision.
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Writ of Execution
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An order directing the sheriff to seize and sell the defendants nonexempt assets, or property.
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Federal form of government
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The national government and the states share sovereign power
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Enumerated Powers
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The national government has the implied power to undertake actions necessary to carry out its expressly designated powers, also known as ______.
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Police Powers
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State regulatory powers. The term related to the broad right of state governments to regulate private activities.
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Privileges and Immunities Clause
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When a citizen of one state engages in basic and essential activities in another state, the foreign state must have a substantial reason for treating the nonresident differently from its own residents.
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Full Faith and Credit Clause
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It ensures that rights established under deeds, wills, contracts, and similar instruments in one state will be honored by other states.
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Check and Balances
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This system allows each branch to limit the actions of the other two branches of government.
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Commerce Clause
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To prevent states from establishing laws and regulations that would interfere with trade and commerce among the states, the Constitution expressly delegated to the national government the power to regulate interstate commerce.
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Substantially affect interstate commerce
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The Supreme Court expanded the commerce clause to cover activities that ___________________________________.
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Commerce Clause
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The Supreme Court Upheld the federal government's authority to prohibit racial discrimination nationwide in public facilities, including local motels, based on its powers under the _________________.
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Exclusive Authority
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The U.S. Supreme Court has interpreted the commerce clause to mean that the national government has the _____________________ to regulate commerce that substantially affects trade and commerce among the states.
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Supremacy Clause
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When there is a direct conflict between a federal law and a state law, the state law is rendered invalid.
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Preemption
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Occurs when Congress chooses to act exclusively in an area in which the federal government and the states have concurrent powers.
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Bill of Rights
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The first ten amendments.
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Absolute
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The rights secured by the Bill of Rights are not ______.
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Expression
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Oral, written, or symbolized by conduct- is subject to reasonable restrictions.
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Content Neutral
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The restriction must be aimed at combating some societal problem, such as crime, and not be aimed at suppressing the expressive conduct or its message.
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Criteria of restrictions on commercial speech
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1) It must seek to implement a substantial government interest 2) It must directly advance that interest 3) it must go no further than necessary to accomplish its objective
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Establishment Clause
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Prohibits the government from establishing a state-sponsored religion, as well as from passing laws that promote religion or that show a preference for one religion over another.
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Free Exercise Clause
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Guarantees that no person can be compelled to do something that is contrary to his or her religious beliefs.
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The Fourth Amendment
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Protects the right to be secure in their persons, houses, papers, and effects.
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Search Warrant
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What one must obtain to search or seize private property.
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Probable Cause
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The officers must have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is more likely justifiable than not.
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Fifth Amendment
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Guarantees that no person shall be compelled in any criminal case to be a witness against himself.
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Due Process Clause
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The provisions of the Fifth and Fourteenth Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without _______________________.
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Procedural Due Process
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Requires that any government decision to take life, liberty, or property must be made equitably, that is, the gov must give a person proper notice and an opportunity to be heard.
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Substantive Due Process
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Protects an individuals's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them.
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Fundamental Rights
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Interstate travel, privacy, voting, marriage and families , and all First Amendment rights.
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Fundamental Rights
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If a law or other governmental action limits a _____________ ______________ the state must have a legitimate and compelling interest to justify its action.
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Equal Protection Clause
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The government cannot enact laws that treat similarly situated individuals differently.
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Substantive Due Process
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When a law or action limits the liberty of all persons to do something, it may violate ____________.
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Equal Protection Clause
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When a law or action limits the liberty of some persons but not others it may violate _____________.
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Enabling Legislation
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Specifies the name, purposes, functions, and powers of the agency being created.
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Legal authority
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An agency's enabling statue defines its ________________. An agency cannot regulate beyond the powers granted by the statute.
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Enabling statute
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When regulated groups oppose a rule adopted by an agency, they often bring a lawsuit arguing that the rule was not authorized by the __________ __________ and is therefor void.
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Federal executive agencies
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The type of administrative agency that includes the cabinet departments of the executive branch, which were formed to assist the president in carrying out executive functions.
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Independent regulatory agency
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An administrative agency that is outside the major executive departments.
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Administrative Agencies
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The APA was created to provide more judicial control over ________________ ______________, which had assumed greater powers during the expansion of government.
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Arbitrary and capricious
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The APA provides that courts should "hold unlawful and set aside" agency actions found to be "___________, _________, and abuse of discretion, or otherwise not in accordance with the law."
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Rulemaking
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The formulation of new regulations
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Notice-and-comment rulemaking
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Involves three basic steps: notice of the proposed rulemaking, a comment period, and the final rule.
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Federal Register
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The proposed rulemaking proceedings are posted in the _________ __________.
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Code of Federal Regulations (CFR)
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The final rule made during a notice-and-comment period is eventually posted in the _____________________.
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Subpoena
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A writ, or order, compelling a witness to appear at an agency hearing.
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Subpoena duces tecum
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Compels an individual or organization to hand over books, papers, records, or documents to the agency when they are requested to appear at an agency hearing.
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Administrative Law Judge (ALJ)
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Agency adjudication may involve a trial-like arbitration procedure before an ______________________.
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Exhaustion Doctrine
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Requires that a regulated party use all of its potential administrative remedies before going to court.
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Freedom of Information Act
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Requires the federal government to disclose certain records to any person or entity on written request.
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Government in the Sunshine Act
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Requires that every portion of every meeting of an agency be open to public observation.
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Regulatory Flexibility Act
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Whenever a new regulation will have a significant impact upon a substantial number of small entities (small business), the agency must conduct a regulatory flexibility analysis.
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