Legal Systems and Procedures: Sources, Courts, and Dispute Resolution

What are the primary sources of law?

The U.S. Constitution, statutory law, regulations by administrative agencies, public comment, administrative case law, and common law doctrines.

What is the difference between courts of law and courts of equity?

Courts of law provide remedies limited to monetary damages, while courts of equity can provide remedies such as specific performance, injunctions, or rescission.

What is the highest burden of proof in criminal law?

Beyond a reasonable doubt.

What is the burden of proof for civil actions?

Preponderance of the evidence.

What does 'stare decisis' mean?

A legal principle that a higher court's decision can serve as binding precedent for lower courts in similar cases.

What is the purpose of discovery in legal proceedings?

To obtain information from the opposing party or witnesses prior to trial, preventing surprises and narrowing issues.

What is due process?

The legal requirement that the government must respect all legal rights owed to a person, ensuring fair procedures.

What is judicial review?

The power of the judiciary to determine whether laws or actions of the other branches are constitutional.

What is a controlling precedent?

A precedent that must be followed within a jurisdiction as binding authority.

What is the significance of the Commerce Clause?

It authorizes the national government to regulate virtually any business enterprise, including internet-based businesses.

What are the three methods of alternative dispute resolution (ADR)?

Negotiation, mediation, and arbitration.

What is negotiation in the context of dispute resolution?

A process where parties attempt to settle their dispute without going to court.

What is mediation?

A method of settling disputes with the help of a neutral third party who facilitates communication between the parties.

What is arbitration?

The settling of a dispute by submitting it to a disinterested third party who renders a decision, which may or may not be legally binding.

What is an arbitrator's award?

The decision rendered by an arbitrator, which may include monetary compensation or other remedies.

Under what circumstances can a court set aside an arbitrator's award?

If the arbitrator's conduct prejudiced a party's rights, the award violates public policy, or the arbitrator exceeded their powers.

What is the difference between substantive law and procedural law?

Substantive law deals with the main points of a legal case, while procedural law establishes the rules and methods used in the court system.

What is the role of administrative law?

To govern the activities of administrative agencies, including rulemaking, enforcement, and adjudication.

What does it mean for a regulation to have 'force and effect of law'?

It means the regulation is legally binding like a statute due to legislative delegation of rulemaking power.

What is the significance of the Fifth and Fourteenth Amendments in relation to due process?

They mandate that the government cannot deprive any person of life, liberty, or property without fair legal procedures.

What is the purpose of initial disclosures in federal courts?

To require parties to disclose relevant evidence to the opposing party before trial.

What is an injunction?

A court order that stops a party from doing something.

What does 'rescission' mean in legal terms?

The cancellation of a contract, often due to fraud or misrepresentation.

What is the lowest burden of proof in civil law?

Preponderance of the evidence.

What is the role of the judiciary in the system of checks and balances?

To interpret laws and ensure that the actions of the legislative and executive branches comply with the Constitution.

What is the definition of 'equitable relief'?

A remedy provided by courts of equity that may include specific performance or injunctions, rather than monetary damages.

What does 'clear and convincing evidence' refer to?

A standard of proof in civil cases that is higher than preponderance of the evidence but lower than beyond a reasonable doubt.

Arbitrator

Impartial third party chosen to resolve disputes outside of the court system through a process called arbitration.

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision.

Arbitration Clause

A provision in a contract that requires disputes to be resolved through arbitration rather than through litigation.

Subpoena ad testificandum

An ordinary subpoena compelling a witness to appear at an agency hearing.

Subpoena duces tecum

A subpoena that compels an individual or organization to hand over books, papers, records, or documents.

Separation of Powers

A constitutional principle that divides government responsibilities into distinct branches to prevent any one branch from exercising too much power.

Checks and Balances

A system that allows each branch of government to limit the powers of the other branches.

Voir Dire

The jury-selection process where attorneys question prospective jurors to determine bias.

Personal Jurisdiction

Court jurisdiction over the 'person' involved in a legal action.

Subject Matter Jurisdiction

The authority of a court to hear cases of a particular type or cases relating to a specific subject matter.

In Rem Jurisdiction

Court jurisdiction over a defendant's property.

Quasi in Rem Jurisdiction

Jurisdiction based on the presence of a defendant's property within the court's jurisdiction.

In Personam Jurisdiction

Court jurisdiction over the person involved in a legal action.

Federal Court Jurisdiction

Limited to specific cases authorized by the Constitution or statutes.

State Court Jurisdiction

Broad, general authority over most legal matters.

Long Arm Statute

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants.

Pre-Trial Procedures

Stages of litigation including pleadings, discovery, and pre-trial motions.

Motion to Dismiss

A request to dismiss a case for reasons such as lack of jurisdiction or failure to state a claim.

Judgment on the Pleadings

A motion asking the court to enter a judgment based on the pleadings when no facts are in dispute.

Motion for Summary Judgment

A request for the court to rule that the other party has no case because there are no facts at issue.

Directed Verdict

A motion made by a defendant at the close of the plaintiff's case to dismiss the case.

Arbitration Disadvantages

Results may be unpredictable, arbitrators do not have to follow precedent, and generally no discovery is available.

Arbitration Process

Begins with submission to an arbitrator, followed by a hearing where evidence is presented, and ends with the arbitrator rendering an award.

Diversity Jurisdiction

Federal courts may hear civil cases between citizens of different states if the amount in controversy exceeds a certain threshold.

Legitimate Purpose of Investigation

An investigation must have a legitimate purpose; agencies cannot issue subpoenas to harass businesses.

Relevance of Information

Information is relevant if it reveals that the law is being violated or assures that it is not being violated.

Specificity of Demand

A subpoena must adequately describe the material being sought.

Burden of Demand

The cost to the company of providing requested documents may become burdensome.

Motion for a Directed Verdict

Where the defendant asks for a verdict in his favor because the plaintiff has not presented sufficient evidence to support his claim.

Post Trial Motions

Once the trial is concluded, a dissatisfied party may file a motion for a new trial or ask that the judge enter a judgement notwithstanding the verdict (N.O.V.) rendered by the jury.

Intent

Scienter - intent to do the act with the reasonable likelihood of the consequences of the act.

Intentional Torts

Occur when an individual acts with intent to cause harm or commit an act, such as assault, battery, false imprisonment, or trespass.

Tortfeasor

The person committing the tort.

Assault

An intentional, unexcused act that creates a reasonable apprehension or fear of immediate harmful or offensive contact.

Battery

The completion of the Assault; intentional or unexcused harmful, offensive, or unwelcome physical contact.

False Imprisonment

The intentional confinement or restraint of another person's activities without justification.

Inflation of Emotional Distress

An intentional act that is extreme and outrageous, resulting in severe emotional distress in another.

Defamation

The publication of a false statement that holds an individual up to hatred, contempt, or ridicule in the community.

Slander

Orally breaching the duty to refrain from making false statements.

Libel

Breaching the duty to refrain from making false statements in print or media (and internet).

Invasion of Privacy

The fundamental right to solitude and freedom from public scrutiny.

Business Torts - Wrongful Interference

Occurs when the defendant knows about a contract between A and B and intentionally induces either A or B to breach the contract.

Punitive Damage

Damages awarded in intentional tort cases.

Defense

An argument raised by the defendant indicating why the plaintiff should not obtain the remedy sought.

Stages of a Legal Action

Pleadings, Discovery, Pre-Trial, Trial, Post-Trial.

Questions of Law vs. Questions of Fact

Trial Courts handle questions of fact; Appellate Courts generally consider questions of law.

Elements of a Prima Facie Cause of Action in Negligence

Duty of Care, Breach of Duty of Care, Causation, Injury.

Duty of Care

Defendant owes duty to protect Plaintiff from foreseeable risks that Defendant knew or should have known about.

Breach of Duty of Care

Professionals may owe a higher duty of care based on special education, skill, or intelligence.

Malfeasance

Doing a prohibited thing.

Misfeasance

Doing a wrongful thing.

Nonfeasance

Not doing something that a reasonable person would have done.

Causation

Includes Causation in Fact and Proximate Cause.

Res Ipsa Loquitor

A tort law doctrine allowing plaintiffs to establish a rebuttable presumption of negligence using circumstantial evidence when direct proof is unavailable.

Strict Liability

Imposed regardless of fault in cases involving abnormally dangerous activities, unreasonably dangerous defective products, and dangerous animals.

Strict Product Liability

Manufacturers, distributors, and sellers can be found liable for defective products without regard to fault.

Negligence Per Se

A regulation or statute prescribed a regulation of care and you don't do it.

Compensatory Damages

Reimburse plaintiff for actual losses.

Special Damages

Quantifiable losses, such as medical expenses, lost wages, and benefits.

General Damages

Non-monetary damages, such as pain and suffering, reputation, loss of consortium.

Punitive Damages

Damages awarded to punish the wrongdoer and to discourage others from engaging in similar conduct.

Mens Rea

A specified state of mind, or intent, on the part of the actor.

Criminal Law

Concerned with wrongs committed against the public as a whole, defined and prohibited by government statutes.

Interrelationship between Crimes and Torts

Tort law compensates those who have suffered a loss or injury due to another person's wrongful act.

Res Judicata

Bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action.

Probable Cause

Requires trustworthy evidence that would convince a reasonable person that a proposed search or seizure is more likely justified than not.

General Jurisdiction

Trial court of general jurisdiction, such as U.S. district courts.

Limited Jurisdiction

Courts with original, but special jurisdiction, such as federal bankruptcy courts.

Appellate Jurisdiction

Jurisdiction of courts that hear appeals from lower courts.

Writ of Certiorari

An order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.

Counterclaim

A claim made by the defendant in opposition to the plaintiff's claim.

Affirmative Defense

A response to a plaintiff's claim that attacks the plaintiff's legal right to bring an action.

Burden of Proof for Counterclaim

Typically, the defendant bears the burden of proof for that claim.