Studied by 5 people
three branches of the US government
legislative, executive, and judicial
article 1
legislative branch
article 2
executive branch
article 3
judicial branch
what does article 1 provide
consists of the house of rep and congress, together forms the senate
house of rep. rate
1 per 35,000 residents
senate rate
2 per state
article 1 responsibility
creating laws
what does article 2 provide
enforcement of laws, led by the president
under article 2 the president can
veto laws passed by congress and issue executive orders
article 2 responsibility
negotiation and agreement of international treaties, and appointments to certain roles
what does article 3 provide
the supreme court and inferior courts
federal courts
disputes between 2 states, involving citizens of 2 states where over $75k is disputed, and violation of constitution
original jurisdiction
first hearing of case, usually review of trial court
appellate jurisdiction
review for clear error of fact of erroneous application of law
supreme court justices
Roberts, Thomas, Barrett, Jackson, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh
primary theory of judicial philosophy (strict constructionist)
when judges strictly interpret the law, clinton valley
second theory of judicial philosophy (statutory constructionist)
when judges interpret the law and apply the spirit of the law rather than the exact interpretation, soldano, flagiello, and tarasoff
plaintiff
the person who brings the civil suit into court of law, must prove they have been injured by others, only used in civil cases.
defendant
person who must defend against a civil suit, can be a person, company, institution, or government entity.
appellant
the party that is appealing the decision of the original court to another court
appellee
the party against whom the appeal is taken, defending the appeal and seeking to have the lower court’s decision upheld
common law
often referred to as judge-made law. provides uniformity across the legal system through interpretations of constitutional provisions, statues enacted by legislatures, and regulations created by administrative agencies
statutory law
passed by legislative bodies such as congress or state legislatures, cannot violate constitution, ex: speed limit
federal law
a body of law at the highest level, consisting of a constitution, enacted laws and the court decisions pertaining to them.
state law
the law of each separate state
uniform law
a model law that if adopted by the state becomes statutory, state has the option to adopt or reject all of the law or only a part of it. ex: uniform commercial code
federal court
only hears cases authorized by constitution or federal statutes. They hear cases in which the US is a party, violations of the U.S. constitution or federal laws, cases between citizen of different states.
state court
cases individual citizens are most likely to be involved in - robberies, traffic violations, broken contracts, and family disputes.
civil law
a body of rules that delineate private rights and remedies, and govern disputes between individuals/companies in such areas as contracts and property.
criminal law
involves prosecution by the government of a person for an act that has been classified as a crime/an act that has “harmed society”
substantive law
laws that address acts as a right or wrong
procedural law
comprises the set of rules that govern the proceedings of court system. Procedural law are the rules that ensure fairness in the process.
legislative law
the body of law enacted by legislative bodies
administrative law
rules and regulations passed by an administrative agency that has been established by US Congress. Ex: EPA setting 55mpg capability
federal vs state law
federal law trumps
state vs state law
whatever state the injury occurred in
stare decisis
let the prior decision stand, ex: clinton valley
standing
right for the impacted party to file a lawsuit or petition under the circumstances
summary judgement
a motion requesting the court to enter a judgment proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute. No factual dispute between parties, only dispute is how the law should be applied.
unanimous decision
all justices agree (9-0)
split decision
at least one justice voted for the other choice
dicta
comment made by a judge in a decision or ruling which is not required to reach a decision; may be cited but cannot have full force of a precedent.
holding
the legal outcome/decision of the case; binding; carried out by future judged
concurring opinion
judge writes an opinion that agrees with the majority
dissenting opinion
judge writes an opinion against what the majority of the judicial panel decided.
what court heard the Soldano case
Court of Appeals of California
legal issue in Soldano case
is there a duty to help a person in need or to take action to prevent injury to a person in need
holding of Soldano case
there is a duty to help a person in need, particularly where such help will occur to another party
rationales for Soldano decision
special relations require someone to help as a duty to someone in danger, legislative action supports other in need, and the 7 factor test that determined if someone has a duty to aid someone in need.
what court heard the Edwards case
Michigan Court of Appeals
legal issue in Edwards case
does governmental immunity for state health facilities exempt Clinton Valley Center from any and all liability
holding for Edwards case
yes, stare decisis
rationales for Edwards case
stare decisis
what court heard the Flagiello case
Supreme Court of Pennsylvania
legal issue in Flagiello case
does the charitable immunity doctrine exempt the state charitable organization from liability
holding of Flagiello case
the court held the law to be outdated and abolished it for the State of Pennsylvania
what court heard Tarasoff case
California Supreme Court
legal issue in Tarasoff case
does a therapist have a duty to exercise reasonable care in determining whether to warm a third party of potential harm
holding of Tarasoff case
yes
rationales for Tarasoff case
special relationships, therapist did not act reasonable, interdependent society, better to break therapist/patient confidentiality to save a life
why is the understanding and use of ADR important for business managers
less expensive that litigation, more efficient than litigation, more flexible, more private, more likely to preserve the business relationship between parties.
positional negotiation
when settling a dispute negotiating to be adversarial, seeking the max benefit, and with no compromises.
principled negotiation
when settling a dispute negotiating is through communication, keeping relationships intact, options, creativity, and alternatives.
positional vs principled negotation
extreme and results in clear winner vs compromise
what are the five dispute resolution options
litigation, arbitration, mediation, negotiation, and med-arb.
process of litigation
file a complaint, file an answer, file a motion for Summary Judgment, discovery, trial, judge issues their decision, losing party may appeal case, enforcement of judge’s decision
three stages of litigation/trial
complaint, service of process, and answer
discovery
gaining access to witnesses, documents, records, other evidence
pretrial conference
informal discussion between judge and attorneys to explore possible settlement
7th amendment right
right to jury trial
jury selection
each party may challenge a certain number of prospective jurors without reason
opening statements
setting forth facts to prove
hearsay
testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement
motion for a new trial
verdict is obviously the result of a misunderstanding of the evidence by the jury, newly discovered evidence, misconduct by juror.
appeal
filing an appellate brief
writ of execution
order directing the sheriff to seize and sell defendant’s assets/property to pay money owed
benefits of litigation
can outspend the opposing party, accessing the judicial system with its developed rules, rights and processes, decisions are binding and enforcement is guaranteed, no compromises, sense of justice, judged by peers, makes public statement or new law.
arbitration
three party process, two disputing parties and one decision maker, decision is binding and called an award, arbitrator is either agreed upon by both parties or court appointed, typically ex-judges or attorneys with legal expertise
mediation
three party process, two disputing parties and one neutral third party acting as a mediator, works with both sides in the dispute to facilitate a resolution
independent mediator
no relationship with the parties
social network mediator
from the community
authoritative mediator
mutually respected and/or with power over each of the parties
commerce clause
congress shall have the power to regulate commerce with foreign nations, and among the several states, and with Indian tribes. Allows congress the authority to regulate interstate commerce which causes state lines.
commerce clause taxing authority
congress shall have the power to lay out and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the US so long as the proposed tax has a reasonable basis.
article 4
generally proves a national framework for citizenship/commerce
article 4 section 1
all courts and states must acknowledge the debts, contracts, and all judicial decisions of other states
article 4 section 2
prevents a state from imposing unreasonable burdens on a citizen of another state
article 5
amendment must be proposed by federal congress and requires 2/3 of house and senate vote, then must be ratified by 3/4 of all states
article 6
federal law is supreme over state or local laws/ordinances and contracts, international treaties take precedence over state laws and contract provision
1st amendment
freedom of press, speech, and religion
2nd amendment
the right to bear arms, was originally to help people organize local militias to repel invasion
4th amendment
protects the right of people to be secure in their persons, houses, papers, and effects, requires law enforcement to obtain a search warrant from a judge
14th Amendment (Equal Protection)
law must be rationally connected to a permissible or legitimate \n government objective
Quasi-strict scrutiny test
law must be substantially related to an important government interest
Strict Scrutiny test
The law must be necessary to advance a compelling state interest, applied to laws addressing a suspect class or a fundamental right
Suspect class
\n class that has disabilities, has been subjected to a history of \n purposeful unequal treatment, OR has been placed in a \n position of political powerlessness
Purpose of Enabling Act
An “Act” or law/statute that is passed by Congress & which includes an enabling mandate that empowers the applicable agency to act within a certain scope of power or purpose
Executive Agencies
Assist the president to carry out executive tasks with the expertise of the agencies, with a single director/chairman who is appointed by the President who can also be removed by President at any time and for any reason \n
Independent Agencies
Agency created by congress via ‘an enabling statute’ which provides a mandate and scope of authority (example = creation of Environmental Protection Agency by congress “to promote the protection and sustainability of the environment”)
Note 
Flashcard (80)