legal studies final exam

Prenuptial/Premartial Agreements

A contract made before marriage that outlines how property will be divided or characterized in case of death or divorce

Child Custody

A parent/guardian’s legal rights and responsibilities for a child’s care including where the child lives (physical custody) and decisions about their welfare, education, and healthcare (legal custody), with jurisdiction determined by the state with the strongest ties if parents live in different states (aka the Uniform Child Custody Jurisdiction Act — UCCJA)

Separate Property

Property owned solely by one spouse before marriage or acquired by gift or inheritance during the marriage, which is not subject to division upon divorce.

Community Property

A legal framework where property acquired during marriage is owned jointly by both spouses, and is subject to equal division upon divorce. NOT ALL STATES RECOGNIZE COMMUNITY PROPERTY

Quasi-Community Property

Property acquired by one spouse during marriage while residing in a non-community property state, treated similarly to community property upon divorce to achieve fairness.

Discovery

The pre-trial process where parties obtaining evidence from each other through various means.

1) Written Interrogatries
2) Depositions
3) Request to Produce Documents
4) Request for Admissions

Interrogatories — Step 1 to Discovery

Written questions submitted by one party to another in a legal case, requiring written answers under oath. Each side can object the questions however, there is a time limit to answer the questions.

Depositions — Step 2 to Discovery

A legal process where witnesses (aka deponents) provide sworn testimony outside of the courtroom, typically recorded for use during trial. This allows attorneys to gather information and assess the strength of the opposing party's case.

Request to Produce Documents — Step 3 to Discovery

A formal request made by one party to another to obtain specific documents or evidence relevant to the case. This request ensures that both parties have access to all pertinent materials before trial.

Request for Admissions (RFAs) — Step 4 to Discovery

A formal request in which one party asks another to admit the truth of certain statements or facts related to the case. This helps streamline issues for trial by establishing uncontested facts.

Will

A document that sets out the distribution of your assets upon your death. You (the testator/testatrix) get to decidce what happens to your real & personal property

Real Property

Land and any structures permanently attached to it, such as buildings or homes.

Personal Property

Movable items that are not fixed to real estate, including belongings like vehicles, furniture, money, and jewelry.

Testator/Testatrix

A person who creates a will to distribute their estate after death.

Formal Wills

Prepared by a lawyer, written down, subscribed (signed by the testator at the end of the document), and acknowledged by the testator in front of witnesses who are NOT the beneficiaries

Holographic Wills

Wills that are handwritten and signed by the testator, usually without witnesses. They are valid in some jurisdictions if they meet specific legal requirements.

Nuncupative Wills

Oral wills made in the presence of witnesses, typically valid in limited circumstances for personal property. Usually made on deathbed.

Trust

A legal arrangement where the settlor (person who creates a trust) gives money to a trustee to manage for someone else’s benefit, either during life or after death with the trustee specific rights and duties

Express Trusts

A written or oral trust with four elements: A settlor/grantor, a trustee, trust property, and at least one beneficiary. Express trusts are usually living or testamentary trusts.

Living Trust (aka Revocable Trust)

A type of express trust that takes place during the settlor’s life, avoids probate, and keeps matters private; it allows property to be managed and distributed without court involvement after death.

Testamentary Trust

A type of express trust that is created through a will and takes effect upon the death of the settlor. It is used to manage a person's assets and distribute them to beneficiaries according to the wishes outlined in the will.

Implied Trusts

Trusts are created by the court when a wrongdoing has occurred. The court steps in & creates a constructive trust for the benefit of the rightful owners.

Intestate Succession

The process by which a deceased person's assets are distributed according to state law when they die without a will. Assets are typically divided among the closest relatives, such as spouse, children, or parents.

Right of Publicity

The legal right of an individual to control the commercial use of their identity, including their name, image, or likeness. This right protects against unauthorized exploitation for commercial gain.

Uniform Commercial Code (aka U.C.C)

A uniform set of laws that are adopted in most states regarding the dealing of contracts for the sale of goods. The U.C.C. makes it easier for businesses to deal with each other.

Elements of a Contract

1) Mutual Consent (Offer and Acceptance)
2) Consideration
3) Capable Parties
4) Legal Subject Matter

Promissory Estoppel

In a contract under mutual consent, if you make a promise upon which someone else relies on to his or her detriment, you (the promissor) are obligated to fulfill his or her promise even if there is no formal contract.

Statue of Frauds

A law based on English Common Law requiring certain types of contracts be in writing.

1) Ks that cannot be performed within a year
2) K for sale of real property
3) K to pay for the debt of another
4) K in contemplation of marriage
5) K that can’t be performed within the lifetime of the promissor
Oral Ks are unenforceable

Quasi-Contract (aka Implied-in-Law Contract)

A legal construct used to enforce a contract-like obligation on a party to prevent unjust enrichment, even when no formal agreement exists between the parties.

Patents

Protects an invention, product, or process resulting from a NEW idea. A patent must be filed and processed through the U.S. Patent and Trademark Office and is good for 20 years until it gets renewed.

Copyright

The Federal Copyright Act protects original artistic or literary work, whether published or unpublished. Only the author has exclusive rights to use the work for the entirety of the author’s life + 70 years. If another person uses or copies it, a lawsuit can be made. Copyrights limit “fair use” for news reporting, scholarship, or research. Licensing agreements give others the right to use the product.

Trademarks

Works, phrases, symbols, and designs that distinguish works or goods. TM protection exists under federal and state law (Lanham Act). TM does not give the owner exclusive right to use the mark, it only protects against other companies making similar marks that are likely to cause confusion, mistake, or deception. Rights last indefinitely if mark is used, 10 years with renewals under federal law. TM is registered under the U.S. Patent and TM Office and filed with state.

Trade Secret Law

Confidential information about a business or product. Many states adopted the “Uniform Trade Secret Act” which keeps private information (i.e. formula, pattern, compilation, program, device, method, technique, or process) a secret.

Specific Performance

A legal remedy in contract law that compels a party to fulfill their contractual obligations as agreed, rather than simply providing monetary damages.

Intellectual Property

Property rights for thoughts, ideas, inventions, works of art, symbols, images, designs literary works, etc.. Once protected, you can sue for infringement.

This includes:
- Copyrights
- Patents
- Trademarks
- Trade Secrets

Eviction

The legal process by which a landlord removes a tenant from rental property, typically due to nonpayment of rent or violation of lease terms.

Adverse Possession

A legal doctrine allowing someone to claim ownership of land if they occupy it openly, continuously, and without permission for a statutory period.

ex) Squatters

Easement

A legal right to use someone else's land for a specific purpose, such as access or utility placement, without owning the property.

Lease

An agreement between an owner of a property and another in which the owner of the property gives the other person the right to use the property for a set period of time.

Foreclosure

The legal process by which a lender takes possession of a property when the borrower fails to make mortgage payments, usually resulting in the sale of the property to recover the loan amount.

Sole Proprietorship

A business owned and operated by a single individual who is personally responsible for all debts and obligations. If a sole proprietorship does business under her actual name, no state filings are required. If not, a “dba” form is required in each NC county that the business operates.

Authority to Enter Contract

The legal power granted to an individual or entity to engage in binding agreements on behalf of themselves or another party. This authority can come from roles such as legislation, corporate roles, or contractual agreements.

Limited Partnership

A partnership consisting of at least one general partner who manages the business and one limited partner who contributes capital but has limited liability.

General Partnerships

A type of partnership where all partners share management responsibilities and liabilities equally. Each partner is jointly liable for the debts and obligations of the business.

Corporation

A legal entity formed under laws of a state in order to conduct specified business. If a corporation is to operate outside of its home state, it must qualify and file to do so and will be known as a “foreign” operation in that state.

Corporations do not die after the owner dies.

Corporations also have certain rights, like a human.

In NC, a corporation must end with its name (corp., co., ltd., etc.) as a way to inform the public with whom they are interested in doing business with

A corporation may be held by a few owners (a “private” company) or many owners (a “public” company)

An ownership interest in the company is known as a share (i.e. a stock)

Usually every quarter, the company will announce their financial results & maybe even give a shareholder a dividend to return some of their profits back to the shareholders

The shareholder usually cannot be held liable for the actions of the corporation.

Non-profit Corporation

AKA, 501(c )(3)s. Their primary activities are charitable, religious, educational, scientific, literary, meant for public safety, fostering amateur sports competitions, preventing cruelty to children, or preventing cruelty to animals. In order to be considered a non-profit, the business must file and qualify with the IRS.

Employees

A form of agent. Can be criminally liable for larceny if they do not abide by their fiduciary duty

Agents

A person who acts on behalf of another person or group. An agent has the duty of executing defined tasks and to use due care. An agent that breaches their fiduciary duty may be civilly liable under tort law.

Independent Contractors

Individuals or entities contracted to perform specific tasks or services for a principal without being classified as employees. They retain more control over their work methods and are typically not subject to the same employment laws as employees. They are not liable for certain employee benefits and protections such as health insurance or unemployment compensation.

Officers

Individuals (e.g., CEO, CFO) responsible for the day-to-day management of a corporation. They owe fiduciary duties (loyalty and care) to act in the corporation’s and shareholders’ best interests and can be held liable for breaches.

Shareholders

Individuals or entities that own shares in a corporation, giving them an interest in the company's performance and governance. Shareholders have the right to vote on major company decisions and may receive dividends based on their shareholdings.

Board of Directors

A group of individuals elected by shareholders to oversee the management of a corporation. They set broad company policies and are responsible for protecting shareholders' interests. They also oversee the corporate officers. Directors are usually innocent until proven guilty in terms of their actions and decisions regarding corporate governance.

Respondeat Superior

A legal doctrine holding an employer or principal liable for the negligent actions of an employee or agent, if such actions occur within the scope of their employment.

Piercing the Corporate Veil

A legal concept allowing courts to hold shareholders personally liable for a corporation's debts or obligations under certain conditions, typically to prevent fraud or unjust outcomes.

Employment at Will

A legal doctrine stating that an employer can terminate an employee at any time for any reason, except for illegal reasons, allowing for flexibility in the employment relationship. This doctrine means that employees can also leave their jobs at any time without penalty.

Vicarious Liability

A legal doctrine where one person (like an employer) is held liable for the actions of another (like an employee) if those actions happen within the scope of employment.

Class Action

A lawsuit filed by one or more plaintiffs on behalf of a large group of people, typically seeking remedies for common claims. Class actions enable efficient resolution of similar legal issues affecting many individuals.

Shareholder Derivative Suit

A lawsuit brought by a shareholder on behalf of a corporation against a third party, often officers or directors, for the benefit of the corporation. This type of suit typically arises when the corporation itself fails to act against perceived wrongdoing.

Pleadings

The formal written allegations filed with the court by both sides of a lawsuit. The most common pleadings are the complaint and the answer, which outline each party's claims and defenses.

Subpoena

A legal document ordering an individual to appear in court or produce documents. Subpoenas are often used to compel testimony or gather evidence in legal proceedings.

Service of Process

The procedure by which a party formally delivers legal documents, such as a summons or complaint, to another party. This process is vital in ensuring that the defendant is informed of the legal action being taken against them.

Federal Rules of Civil Procedures

The Federal Rules of Civil Procedure are a set of rules that govern civil trials and lawsuits in federal courts. They outline the procedures for handling civil cases, including pleadings, motions, discovery, and trial management.

Federal Rules of Evidence

Without evidence, there is no proof, burdens of proof can’t be met, and convictions, verdicts, or judgments are impossible. The rules of evidence encourage fairness, help avoid judicial delay, and assist in ascertaining the truth

Federal Rules of Criminal Procedure

A set of rules that govern the process of criminal trials in federal courts, outlining procedures for indictment, arraignment, trial, and appeals to ensure fair and orderly litigation.

Pre-trial Motions

An application to the court made by the prosecutor or defense attorney requesting that the court make a decision on a certain issue before the trial begins. he motion can affect the trial, courtroom, defendants, evidence, or testimony.

Only judges decide the outcome of motions

Common pre-trial motions include:
- Motion to dismiss
- Motion to suppress
- Motion for change of venue
- Motion to impose a gag order
- Motion to limine (limit evidence)

Settlement Conference

A meeting between parties involved in a legal dispute, usually facilitated by a judge or mediator, where they can negotiate and potentially reach an agreement before trial.

Venue/Jurisdiction

The legal authority of a court to hear and decide a case, which includes the geographic area (venue) and the type of cases (jurisdiction) that a court can preside over.

ADR - Alternative Dispute Resolution

A method of resolving disputes outside the normal court process. It is done in civil cases and some lower-level criminal cases, depending on the situation.

It saves time and money

Negotiation, arbitration, mediation, and use of private judges are all possible methods for ADR.

Mediation

A non-binding attempt to peacefully resolve disputes. A neutral person (the mediator) assists the parties in reaching a resolution to the issue. The mediator does not have to be a lawyer, but is someone who is highly trained in mediation.

Hearsay

A statement made outside of court that is not based on personal knowledge and is used to prove the truth of the matter asserted.

Model Penal Code

Developed by the American Law Institute to serve as a template for state criminal codes. It aimed to bring clarity, consistency, and fairness to U.S. criminal law.

Key features:

• Defines four mental states (mens rea):

  1. Purposefully

  2. Knowingly

  3. Recklessly

  4. Negligently

• Simplifies crimes into categories like homicide, theft, assault, etc.

• Includes clear rules on attempt, conspiracy, and defenses (e.g., insanity).

• Influenced many states but is not binding law unless adopted.

Mens Rea

The mental state or intent of a person when committing a crime, often used to distinguish between different levels of culpability.

Actus Reus

The physical act or omission of a person committing a crime, which, combined with mens rea, constitutes a crime.

Concurrence

The principle that the actus reus and mens rea must occur simultaneously for a crime to be established.

Defenses to Crimes

Legal justifications or excuses that can absolve a defendant from criminal liability, such as self-defense or insanity.

Deterrence

A theory in legal studies that suggests the imposition of penalties will discourage individuals from committing crimes.

Rehabilitation

A legal philosophy focused on reforming the offender's behavior and reintegrating them into society, rather than simply punishing them.

Incapacitation

A legal strategy aimed at preventing an offender from committing further crimes by restricting their freedom, typically through incarceration or other means.

Retribution

A legal philosophy that focuses on punishing offenders because they deserve to be punished for their actions, based on the principle of moral vengeance.

1st Amendment

• Freedom of Speech

• Freedom of Religion

• Freedom of Press

• Freedom of Assembly

• Freedom of Petition

2nd Amendment

The right to bear and keep arms

4th Amendment

No unreasonable searches and seizures and requires a warrant based on probable cause.

5th Amendment

Protection against self-incrimination, double jeopardy, and guarantees due process.

6th Amendment

The right to a speedy and public trial, an impartial jury, and to confront witnesses.

8th Amendment

Protection against cruel and unusual punishment, and excessive bail.

14th Amendment

Right to due process

Probable Cause

A reasonable basis for believing that a crime may have been committed, which is necessary for police to make an arrest or conduct a search.

Proof Beyond Reasonable Doubt

The highest standard of proof used in criminal trials, requiring that jurors be firm in their belief that the defendant is guilty before they can convict.

Exigent Circumstances

Emergency situations that justify a warrantless search or arrest.

Plain View Doctrine

A legal rule allowing law enforcement to seize evidence without a warrant if it is in plain sight and the officer is lawfully present.

Hot Pursuit

A legal doctrine that allows police to enter premises without a warrant while actively pursuing a suspect believed to have committed a crime.

Exclusionary Rule

A legal principle that prohibits the use of evidence obtained in violation of a person's constitutional rights, particularly during searches and seizures.

Affadaivit

A written statement made under oath, used as evidence in legal proceedings.

Deposition

A formal statement made under oath, typically taken outside of court, to be used later in the legal proceedings.

Complaint

A legal document filed by a plaintiff that initiates a lawsuit, outlining the claims against the defendant.

Trial Jury

A group of citizens sworn to give a verdict in a legal case after hearing the evidence presented during the trial. The jury determines the facts of the case and applies the law as instructed by the judge.

Arrest and Search Warrants

A court order authorizing police to arrest a specific person, based on probable cause that they committed a crime.

Motion to Dismiss

A formal request made to a court to dismiss a case on specified legal grounds, asserting that the case lacks merit or jurisdiction.

Motion to Suppress

A request to exclude certain evidence from a trial, typically arguing that the evidence was obtained unlawfully or violates the defendant's rights.

Motion to Change Venue

A request to move a trial to a different location due to issues such as prejudice or convenience, ensuring a fair and impartial jury.