Introduction to Law Midterm (Uiowa)

Laws

rules that identify "right" and "wrong" behavior. They reflect societal or community values and governs relationships between people and the society at large

natural law

a legal theory based on the belief that all human beings possess inherent natural rights that cannot be limited or taken away by "man-made" law

positive law

law created by legislatures and courts which establish and limit individual rights

Declaration of Independence

A proclamation issued by the Continental Congress on July 4, 1776, written by Thomas Jefferson, that announced the independence of the 13th American colonies from Great Britain

Universal Declaration of Human Rights

A statement made by the united nations general assembly on Dec 10, 1948 identifying the inherent rights of every person

Bill of Rights

the first 10 amendments to the United States Constitution; individual rights that all Americans possess and which cannot be taken away by the federal government

capital punishment

under state and federal criminal law, severe crimes like murder (frequently called "capital crimes") are punished by the government by putting the defendant to death

legal positivism

A view of law (also called "jurisprudence") based on the notion that a person's legal rights are strictly based on laws made by legislatures (state and federal) or by courts.

legal realism

A type of legal jurisprudence based on the belief that judges should interpret laws in court cases based on the unique circumstances of each case, and societal and economic trends, as opposed to following past court cases or established legal rules.

the natural law tradition

the belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature.

United States Constitution

Document that provides the legal basis for the federal government, its three branches and for the separation of powers between the federal and states government

supremacy clause

Article VI of the Constitution, that states the Constitution is the "supreme law" in the US, meaning that the Constitution takes priority over conflicting federal or state laws and that federal law takes priority over conflicting state laws

federalist form of government

created by the US Constitution by giving certain powers to the federal government and then through the 10th amendment, giving all other powers to the different state governments

10th amendment

this amendment gives power to the different state governments that are not given to the federal government

eminent domain

Power of a government to take private property for public use; 14th amendment

legislative

The ________________ branch has the authority under the respective constitution to pass statutory laws, and to do other things, such as approve appointments to the two other branches of government.

due process

means that certain fair procedures must be followed before a person is convicted of a crime, or loses his/her property, including the right to have the decision is such cases made by an impartial judge or jury

equal protection

the equal application of the law regardless of a person's race, religion, political beliefs, or other qualities

right-to-work law

a state law that prohibit an employer from negotiating a contract provision with a labor union that would require the employer's employees from joining that labor union as a condition of their employment

black list

a list of individuals who generally are supporters of labor unions that different employers circulate and use to deny employment to these individuals

public powers

state power to effect laws promoting health, safety, and morals

ordinance

a statute passed by a local government--a city council, county board of supervisors, town council, etc

case law

judges interpret statutory law, constitutional law and administrative law in lawsuits and in court trials by using past decisions interpreting those same laws in making decisions

case precedent

past court cases that judges use to make decisions

non-compete provision

part of an employee's employment contract that states the employee will not work for the employer's competitor or start his/her own business that compete with the employer within a set period of time after the employee leaves his/her job

contract law

law that governs disputes over the formation, enforcement and violation of contracts

tort law

law that governs actions between individuals involving personal injuries

stare decisis

Let the decision stand; decisions are based on precedents from previous cases (based on common law)

fact pattern

summary of facts that judges consider when making their decisions

negligence

the common law requires that people exercise a duty of reasonable care as to other people. When someone is injured because another person is careless, the person can file a lawsuit against the other person for his/her injuries

takings clause

Government can take private property for a public purpose, but it must provide fair compensation to the owners of that property.

criminal law

a type of public law in which actions considered by society to be "wrong" and which are offensive to society are punished

assault

under criminal and tort law, the threat of force which reasonable causes a person to fear his or her safety

embezzlement

a crime in which a person who owes a special legal duty to another person intentionally takes personal property belonging to that person for his/her own use

civil law

the body of law that has been established by courts and by legislatures to govern private disputes between individuals or a group of individuals such as a business company

prosecutor

the attorney representing the government in a criminal trial

plaintiff

the person who files a civil lawsuit against another person

proof beyond a reasonable doubt

The standard of proof needed to convict in a criminal case. The evidence offered in court does not have to amount to absolute certainty, but it should leave no reasonable doubt that the defendant committed the alleged crime. Many lawyers describe this evidentiary standard as requiring "99%" or more of the evidence

preponderance of the evidence

The standard of proof in a civil case in which a judge or jury must believe the plaintiff's story and evidence is stronger than the defendant's version. Many lawyers consider this evidentiary standard as requiring "51%" or more of the evidence

substantive law

laws that define regulate, and create legal rights and obligations

trademark

a legally-protected and distinct word, logo, symbol, or phrase associated with a product or service and which is registered with the US Patent and Trademark Office

Copyright

a legally-protected right to exclusively use, copy, or distribute, a book, movie, painting, play, song, graphic design or other type of original work

libel

a tort based on the publication of a written statement known to be false and which has or which may have the effect of injuring another person's reputation; a form of defamation

procedural law

a classification of law which explains the process a person uses to protect or enforce his/her substantive legal rights

public law

a classification of law that concerns the relationship between individuals and their government. Constitutional and criminal law are examples of this.

preemption

A doctrine under which certain federal laws take precedence over, conflicting state or local law; the Constitution is the "supreme law of the land'

judicial review

review by the US Supreme Court of the constitutional validity of a legislative act.

commerce clause

The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.

employee retirement income security act (ERISA)

A federal statute which establishes certain standards for private pension plans and for employee benefit plans.

fair labor standards act (FLSA)

A federal statute that requires covered employers to pay their non-exempt employees a minimum wage and overtime for all hours worked in excess of 40 hours per week.

Primary Sources of American Law

- Constitutions (Federal and State)

- Statutory law (Federal, State and Local)

- Administrative law (State and Federal)

- Case law and Common law

- Executive orders (President and Governor)

Constitutional law

-both federal and state constitutions

-generally "supreme sources of law"

-establish branches of government

-"federalist" form of government

-US Constitution is the supreme law of the land

Statutory law

-statutes (federal and state)

-ordinances (local)

-local ordinances can represent a relatively rapid response to societal changes; lots of impact on business even if intention of legislation was to remedy social problem

-Federal (Congress), State (state legislatures), local ordinances cannot conflict with federal or state

common law

judge made law--based on decision made by state court judges in civil cases; stare decisis-deciding new cases with reference to precedents

executive orders

Rules made by the top person in the executive branch of government--President, governor, mayor. These have the "power" of law, meaning that they must be followed like a law.

private law

relationship between members of society; e.g., contract law, property law, landlord-tenant and corporation law) (primarily common law)

civil law

deals with private or public wrongs or rights between people, as opposed to criminal law. E.g., contact, real estate, divorce, probate case. Plaintiff vs. Defendant

difference between criminal law and civil law

Civil: private parties, money, 51% of evidence

Criminal: prosecutes crimes, monetary fine, jail time, death punishment, 99% of evidence

civil case

a case between parties decided by a state or federal court involving civil law

jurisdiction

the authority of a court to hear and decide a specific case

inquisitorial court system

when legal disputes are decided by court judges who "search for the truth" by interviewing witnesses and reviewing evidence necessary to find this truth in determining which party wins the legal dispute

evidence

the available body of facts or information indicating whether a belief or proposition is true or valid.

adversarial court system

a court system where parties and their representatives (attorneys) are expected to identify and present the evidence that supports their respective positions to a judge and jury

trial

the legal hearing before a judge or jury in both civil and criminal cases

subject matter jurisdiction

A court's authority to hear a particular type of case; this authority is created by either the constitution (state or federal) or statutory law (state or federal); jurisdiction over the subject of the dispute

personal jurisdiction

A court's authority to order the parties to to appear before the court in a civil or criminal lawsuit; jurisdiction over the people

general jurisdiction

a court that can hear almost any kind of case and decide a wide variety of cases

limited jurisdiction

a court that can only hear and decide certain types of cases

exclusive jurisdiction

authority of only federal courts to hear and decide cases (ex: bankruptcy, patents and copyrights, anti-trust among others)

concurrent jurisdiction

authority for both state and federal courts to hear and decide cases; can be filed in either state or federal (ex: lawsuits involving citizens of different states where damages exceed $75,000)

discretionary appellate jurisdiction

the highest state court in both the state and federal court systems can generally decide which cases it will review on appeal from lower courts

exclusive and original jurisdiction

Constitutions - state and federal - help to establish the jurisdiction of courts in the respective court systems. Under the US Constitution, the Supreme Court is the only court that has the authority to hear and decide legal disputes between different states

venue

the appropriate location for a court case, both civil and criminal

domicile

place of residence

In Personam Personal Jurisdiction

The authority of a court to require a defendant to respond to a lawsuit and to offer a defense to the legal claims in the lawsuit requires that the court have personal jurisdiction over the defendant. This can be established by way of a person's citizenship or domicile, for example, lives - or the fact that the defendant has specific connections with the state in which the court is located.

In-rem personal jurisdiction

A court may have personal jurisdiction over a defendant who owns property in the state and the defendant's property is related to the case before the court; jurisdiction when property involved

quasi in rem jurisdiction

Jurisdiction over real or personal property when the lawsuit has to do with personal liabilities not directly associated with the property.

long arm statute

a state law that gives state courts personal jurisdiction over non-resident defendants based on a connection the out-of-state defendant has with the state

complaint

a formal notice that a lawsuit is being brought; outlines the plaintiff's legal claims including a request for damages

service

the formal delivery of the written pleadings to the defendant

motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

statutes of limitations

State and federal procedural laws identify the time period within which legal claims must be filed with a court; a lawsuit that is filed after the time period is considered untimely and will be dismissed by the court

standing

a legal rule stating who is authorized to start a lawsuit

affirmative defense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action

counterclaim

a defendant's claim against the plaintiff in a civil lawsuit

reply

a plaintiff's answer to the defendant's counterclaim in a civil lawsuit

interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

depostition

interviews of witnesses under oath by lawyers representing the parties in a civil lawsuit during the pre-trial discovery phase

request for the production of documents

either party asking the other to produce specific documents

request for admissions

During the pre-trial discovery phase of a civil lawsuit, the parties may ask the other side to admit to certain facts in the case through the use of a written request for admissions, which are answered by the party under oath.

request for physical or mental examinations

In civil lawsuits, where the physical or mental capacity of the plaintiff or defendant is important to resolve the dispute, the parties may ask the court to grant an order requiring the plaintiff or defendant to submit to a physical or mental examination conducted by a health care professional.

summary judgement

A ruling by the court that no trial is necessary because some essential facts are not in dispute

statute of frauds

a state law that requires certain types of contract to be in writing in order to be legally enforceable

material fact

a fact in a civil or criminal case that is important for the court or jury to consider in making its decision in the case

pre-trial conference

a judge in a civil case will meet with the plaintiff and defendants before a court trial is held to discuss the issues that will be presented in the case

Voir Dire

the process that is used by the court in a civil lawsuit to select jury memebrs

peremptory challenges

a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.

challenges for cause

a claim that a juror has demonstrated probable bias

opening statements

statements by attorneys that tell the jury what their cases will prove

direct examination

examination of a witness by his or her own attorney