Intro to Law -MIDTERM REVIEW

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183 Terms

1

Civil Law

describes a legal system based primarily on written constitutions and written laws or codes

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Common Law

is a legal system based on precedent or case law

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Code of Hammurabi

  • This is an example of a civil law system that dates back to
    the Babylonian Empire.
    + This Code contained rules that governed different aspects
    of society, including criminal laws, domestic relations, and
    contract laws.

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Stare Decisis

+ This is another term for precedent.
+ Laws originate from decisions of courts rather than legislative bodies.
+ Precedent requires courts to follow decisions of earlier courts.
+ It is the basis of common law.

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What is the law?

consists of a set of rules and procedures usually intended to regulate some aspect of society

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Philosophical Theories

The philosophy of law, also known as jurisprudence, deals with a multitude of questions related to the origins of law, the meaning of law, and the relationship of law and morality.

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The Natural Theory of Law

+ Law reflects moral and unchangeable laws of nature.
+ When a law fails to do this, it is unjust and need not be obeyed.
+ Philosophers such as Aristotle, Socrates, and Thomas Aquinas held this theory.

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Legal Positivism

  • Under this theory, the validity of a law is not related to
    morality.
    + If a law is properly created or enacted then it is valid.

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Legal Realism

+ This theory is based on the belief that men create laws and therefore laws are subject to pitfalls created by men.
+ In particular, these philosophers believe that judges applying their personal beliefs and biases often mold laws.

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How do we categorize the law?aw?

  1. whether the law is constitutional law, statutory law, or case law

  2. whether the law is substantive or procedural

  3. whether the law is criminal or civil

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Sources of Law

  1. a constitution

  2. a statute

  3. a case decision

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statute of limitations

a statute of limitations is a time limit for filing a lawsuit in court

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Substantive Laws

define the rights and duties of parties and establish the legal basis for any lawsuit

ex: a law that burglary a crime

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Procedural Laws

dictate how a case should be handled once a dispute arises under the substantive law

ex: a law that gives anyone accused of burglary the right to a jury trial

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15

Criminal

  • moving party is the government

  • result of lawsuit is punishment

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16

Civil

  • moving party is victim

  • result of lawsuit is typically money or specific performance

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Interaction between categories

+ All three categories interact with each other meaning you can have criminal laws that come from statutes as well as civil rights from constitutions or substantial criminal laws and procedural civil laws, etc.

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Crimes

+ Substantive criminal laws deal with crimes.
+ Procedural criminal law deals with due process.

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Procedural Due Process

  • the existence of a law that prohibits the conduct in question before the
    violation occurs;

  • a law that is sufficiently certain and clear so that an individual is capable of
    knowing what is permissible and what is illegal;

  • a specifically described penalty that is to be imposed in the event a person is
    found guilty.

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Substantive Civil Laws

+ These can include a variety of topics:
+ Family law
+ Wills
+ Personal Injury
+ Contracts

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Rules of Court


+ Most substantive areas of law have their own procedural rules which are called rules of court.

+ This is true on the state and federal level.

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Jurisdiction

This refers to the ability of a specific court to hear a case.

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Civil Court Procedures

Preponderance of the Evidence
Standard: in a civil case a jury must decide the case based on a scale of 50% plus a feather. defendant in a civil case is found liable.

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Criminal Court Rules

Beyond A Reasonable Doubt: in a criminal case a jury must decide the case based on a scale that is 99% sure. A defendant in a criminal case is adjudicated guilty.If the jury finds no guilt, then the defendant is acquitted

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Indigency

+ In a court case, if a defendant is too poor to pay for an attorney, they may get a free
attorney in a few circumstances.
+ -Criminal Case
+ -Delinquency Case
+ -Eminent Domain
+ -Dependency Case

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Expressed Powers

those powers given to the Federal Government expressly through Article I Section 8 of the United States Constitution

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Implied Powers

powers created by Congress through the exercising of its expressed powers.

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10th Amendment

The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States, respectively, or to the people.

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Expressed Powers

  1. Collect Taxes

  2. Borrow Money

  3. Establish Post Offices

  4. Declare War

  5. Raise an Army

  6. Copyright and Patents

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Commerce Clause

This clause gives the federal government the right to regulate Poweinterstate commerce

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Preemption

the federal government has the exclusive right to regulate a particular subject area.

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Ex post facto laws

make a person criminally responsible for an act that was committed before the act was made a crime

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Examples of State Powers

  • criminal conduct,

  • contractual relationships,

  • civil tort liability,

  • forms of business such as partnerships and corporations.

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Jurisdiction

the power of government to regulate

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Exclusive Jurisdiction

exclusively allowed to regulate whether it’s state or federal government.

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Concurrent Jurisdiction

When both state and federal governments have the right to regulate an area

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Supremacy Clause

a conflict exists between state and federal law, federal law will always
control.

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Branches of Government

Executive, Legislative, Judicial

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Separation of Powers

Each branch has their own power to operate in the government. The executive branch enforces the laws, the legislative makes the laws, and the judicial interprets the laws.

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Executive Branch

  • branch of the federal government consists of the president and the president’s cabinet.

  • The president’s cabinet includes the heads of fifteen executive
    departments—the secretaries of Agriculture, Commerce, Defense,
    Education, Energy, Health and Human Services, Homeland Security,
    Housing and Urban Development, Interior, Labor, State,
    Transportation, Treasury, Veterans Affairs, and the Attorney General.
    government also consists of the various
    federal law enforcement agencies.

  • The primary responsibility of this branch is the execution and
    enforcement of the laws.


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Legislative Branch

  • branch of government consists of the House of
    Representatives (whose members are called representatives or
    congresspersons) and the Senate (whose members are called
    senators). This is called a bicameral system.

  • Representatives and senators are elected by citizens of the district and
    state they represent and serve two- and six-year terms, respectively

  • The primary responsibility of this branch is to make laws called statutes
    or codes.

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Judicial Branch

  • The judicial branch of the federal government consists of the various
    federal courts.

  • The role of the judicial branch is to apply or interpret the laws in
    relationship to actual cases.

  • However, in doing so many say the courts make law.

  • Many say this is the most powerful branch of government.

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State Level- Governor

he head of the executive branch at the state level with numerous sheriffs and police commissioners throughout the state

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State Level- Legislative Branch

Senate and House

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Local Government

there are smaller governments for counties and cities.There are officials here as well such as commissioners or mayors who run local politics.

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Sources of Law in the US

  • stare decisis

  • constitutions

  • statutes

  • codes

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Limitations on Stare Decisis

  • Stare decisis applies only when a lower court is faced with a factual
    situation that was decided by a higher court.

  • Decisions of state courts are stare decisis only within the state where
    they are decided.

  • Stare decisis applies only when the court orders that the opinion be
    published.

  • In those situations where these limitations do not exist, stare decisis
    creates binding case law.

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Steps in Creating a Law

Legislation Proposed—> Bill Introduced —> Bill Referred to Committee—> Bill Voted on legislators—> action by other house—> executive options

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Initiative

a process for voters to pass a law

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referendum

state legislatures can also propose laws that need voter approval

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Statutes at Large

laws are published on the federal level

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Session Law

laws are published on the state level

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Ordinances

laws are published at the local government level

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Administrative Regulations

  • While the power of the executive is to enforce laws, from time-to-time different agencies will create their own rules for governing citizens.

  • For example, the IRS creates rules for taxpayers to follow.

  • The agencies also have their own judges to interpret rules.

  • In this way, an administrative agency who is an extension of the executive branch fulfills all three powers of government.

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The Federal Court System

United States Supreme Court – Circuit Courts – District Court

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Bench Trial


In rare circumstances, a bench trial occurs where the judge is both determines questions of law and questions of fact.

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Diversity of Citizenship

the action is between residents of different states and the amount in dispute exceeds $75,000.

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Bankruptcy Court

a court handling bankruptcy proceedings

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U.S. Court of International Trade

a court that handles cases involving international trade and custom duties

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U.S. Claims Court

a court that hears suits against the federal government for money damages in numerous civil matters

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U.S. Tax Court

a court that handles controversies between taxpayers and Internal Revenue Service involving underpayment of federal taxes

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En Banc

all judges in a circuit may hear a case

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Record on Appeal

a written transcript of the entire trial is provided to the appellate attorneys

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Briefs

the attorneys create written arguments

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Jury Instruction

statements of law read to the jury at the end of the trial.

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Affirm

uphold the trial court’s decision

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Reverse

change the trial court’s decision

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Remand

send the case back to the trial court for a retrial with instructions regarding the procedure to be followed.

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Jurisdiction

  • It hears cases from the lower federal courts.

  • It can also hear cases that originated in the state courts if the case involves a constitutional issue or a question of federal law

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Petition For Writ of Certiorari

The Supreme Court cannot hear every case it is asked to hear.
• A party must petition the court to hear their case and set out their reasons for requesting a hearing.
• The justices then vote to determine if the case will be heard.
• At least four of the justices must vote to hear the case or grant the petition for writ of certiorari

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Exceptions to Role of Appellate Court

  • In very rare circumstances, the US Supreme Court does have original jurisdiction.

  • This happens in cases involving ambassadors or when the states are the party (Florida vs. Georgia)

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State Court Systems

While state courts differ from state to state, most follow the federal example and have trial courts, appellate courts, and finally a supreme court.
• Broward County Court – 17th Judicial Circuit – 4th DCA –Florida Supreme Court

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The Federal Judiciary

• These individuals are the federal judges who hear cases at the federal level.
• The President appoints theses judges, and they are then confirmed by the Senate.
• Once confirmed, they serve for life.

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Magistrates

individuals who are appointed by judges to handle minor issues in the judicial system to help free up judges for more important matters

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State Court Judges

State court judges can obtain office in a variety of ways depending on what the state’s law says.
• In Florida:
• Governor can appoint judges
• Individual can run in a nonpartisan judge race
• Voters can vote to keep or remove a judge

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Judicial Assistants (JA’s)

secretaries for the judges

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Clerk’s

serve as the record keepers of all information in a court file

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Court Reporters

take down all the verbal information during a court procedure to potentially type it up later into written form

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Bailiffs

provide safety and order within the courtroom

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Paralegals

individuals whose training and education enable them to assist lawyers by performing various legal tasks , they cannot practice law

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What is the practice of law?

  1. Represent someone in court, at a disposition, or other legal proceeding

  2. Provide legal advice

  3. Signing legal documents

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Law Office Administrators

  • often manage larger law offices, corporate legal departments, and some law-related government agencies

  • These individuals work to assure the delivery of quality and efficient legal services

  • In addition to some legal education, this profession often calls for a strong business background.

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84

Law Clerk

refer to law students interning or working in the law firm while attending school, jobs often involve considerable legal research and preparation of legal memoranda

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legal memorandum

is a written explanation and analysis of factual and legal problems

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Enrolled Agents

non lawyers who represent other in administrative hearings

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Certified Legal Interns

law students/graduates who operate under lawyers

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American Bar Association

is a national organization that strives to promote high professional standards within the American legal community and to safeguard the administration of justice to the public.

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Florida Bar

the organization that licenses all attorneys

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Broward County Bar Association

local group of attorneys practicing in Broward County

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American Association of Trial Lawyers

is a national professional group consisting primarily of litigation lawyers

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National Federation of Paralegal Association

is primarily a national organization consisting of local paralegal associations, although individuals may join

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American Association for Paralegal Education

is a national organization of paralegal schools and educators

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Ethics for Judges

Judicial Conference of the United States can impose some discipline but has no authority to remove a judge from office.
• Federal judges can be removed only through the impeachment process.
• The federal judicial conference can recommend that Congress institute impeachment proceedings.

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Cannons of Ethics

A Judge Should Uphold the Integrity and Independence of the Judiciary
• A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
• A Judge Should Perform the Duties of the Office Impartially and Diligently
• A Judge May Engage in Extra-Judicial Activities to Improve the Law, the Legal System, and the Administration of Justice
• A Judge Should Regulate Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Duties
• A Judge Should Regularly File Reports of Compensation Received for Law-Related and Extra-Judicial Activities
• A Judge Should Refrain from Political Activity

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Code Of Conduct For Judicial Employees

  1. a judicial employee should uphold the integrity and independence of
    the judiciary and of the judicial employee’s office

  2. . a judicial employee should avoid impropriety and the appearance of
    impropriety in all activities

  3. a judicial employee should adhere to appropriate standards in
    performing the duties of the office

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Ethic for Lawyers

When a lawyer agrees to represent a client, a special relationship is created between the lawyer and the client.
• This fiduciary relationship means that the attorney must exercise the highest degree of trust and care with that client.
• The relationship carries with it various duties or obligations for the
attorney in handling the case.

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Elements of the Fiduciary Relationship


• Confidentiality - The duty of confidentiality requires that the attorney not reveal the content of any communications that are intended to be private.
• Competency - Competency requires that attorneys have the requisite legal knowledge to handle a case.
• Conflict of interest - A conflict of interest occurs when the attorney cannot give all of his or her loyalty to the client because of some personal or financial relationship that exists.

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Potential Conflicts of Interest

An attorney or law firm wishes to sue a party that they currently or in the past have represented.
• An attorney or member of the law firm has a personal relationship with someone who works in a law firm on an opposing side in a lawsuit (or potential lawsuit).
• A financial or business relationship exists with a client or with someone who may be an opposing party in an action.

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Fees

In most cases, attorneys can charge clients any fee, as long as the fee is not “unconscionable.”
• Unconscionable is not easily defined. However, it is clearly not the same as reasonable.
• Attorneys are not allowed to share a fee with a non-attorney, including a paralegal.

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