Law Exam One

1. Commerce Clause: Clause 3 of Article I, Section 8, of the US Constitution, which authorizes and empowers Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

2. Commercial Speech: Speech made by businesses about commercial matters, such as the sale of goods and services. It is protected by the First Amendment.

3. Concurrent Authority: Both the state and federal court systems have the power to render a binding verdict for this type of case.

4. Contract Clause: The clause in the US Constitution that prohibits the government from unreasonably interfering with an existing contract.

5. Dormant Commerce Clause: A restriction on states’ authority that is implied in the commerce clause of the US Constitution: The power given to Congress to enact legislation that affects interstate commerce in effect prohibits a state from passing legislation that improperly burdens interstate commerce.

6. Due Process Clause: A clause in the Fifth Amendment of the US Constitution which provides that the government cannot deprive an individual of life, liberty, or property without a fair and just hearing.

7. Equal Protection Clause: A clause in the Fourteenth Amendment of the US Constitution that prevents states from denying “the equal protection of the laws” to any citizen. This clause implies that all citizens are created equal.

8. Establishment clause: One of two provisions in the First Amendment of the US Constitution that protect citizens’ freedom of religion. It prohibits (1) the establishment of a national religion by Congress and (2) the preference of one religion over another or of religion over nonreligious philosophies in general.

9. Federal preemption: A principle asserting the supremacy of federal legislation over state legislation when both pertain to the same subject matter. Also called field preemption.

10. Federalism: A system of government in which power is divided between a central authority and constituent political units.

11. Free-Exercise Clause: A clause in the First Amendment of the US Constitution, which states that government (state and federal) cannot make a law “prohibiting the free exercise” of religion; has been interpreted as including absolute freedom to believe and freedom to act, which may face state restriction.

12. Full faith and credit clause: A clause in the US Constitution (Article IV, Section 1) mandating that each state must recognize, respect, and enforce the public records, legislative acts, and judicial decisions of the other states.

13. Intermediate scrutiny: A standard of review under which a law must be necessary to achieve a substantial, or important, government interest and must be narrowly tailored to that interest.

14. Judicial review: The power of a court to review legislative and executive actions, such as a law or an official act of a government employee or agent, to determine whether they are constitutional.

15. Police Power

16. Political Speech: Speech that is used to support political candidates or referenda. Compared to other types of speech, it is given a high level of protection by the First Amendment.

17. Privileges and Immunities Clause: The clause in the US Constitution which requires that each state grant citizens of other states the same legal benefits that it grants its own citizens.

18. Procedural due process: The requirement that a government must use fair procedures before depriving a person of his or her life, liberty, or property.

19. Rational basis test

20. Search Warrant: A court order that authorizes law enforcement agents to search for or seize items specifically described in the warrant.

21. Strict scrutiny: The most exacting standard of review used by the courts in determining the constitutionality of a statute; requires a compelling government interest and the least restrictive means of attaining that objective.

22. Substantive due process: The requirement that laws depriving an individual of life, liberty, or property be fair and not arbitrary.

23. Supremacy Clause: Article VI, Paragraph 2, of the US Constitution, which states that the Constitution and all laws and treaties of the United States constitute the supreme law of the land. Thus, any state or local law that directly conflicts with the US Constitution or federal laws or treaties is void.

24. Takings Clause: A clause in the Fifth Amendment of the US Constitution requiring that when government uses its power to take private property for public use, it must pay the owner just compensation, or fair market value, for the property. Also called just-compensation clause.

‣ Appellate courts may affirm the decision of the lower court, modify it, reverse it, or remand it.

‣ The U.S. Supreme Court sometimes hears appeals.

‣ A writ of certiorari is a petition in which the U.S. Supreme Court asks a lower court to send the U.S. Supreme Court a record of a case so it can review the case.

VOCAB

1. Plaintiff is the person or party initiating a civil lawsuit.

2. Defendant is the person or party against whom a lawsuit has been initiated.

3. Trial courts are the courts in which most criminal and civil cases start. These courts are responsible for determining motions and conducting hearings and trials. Trial courts determine questions of fact and questions of law.

4. Appellate courts are courts which review decisions of trial courts in order to determine if their decisions are consistent with the requirements of the law. Appellate courts determine questions of law.

5. Questions of law are issues concerning the interpretation or application of the law. Such questions may be resolved by trial and appellate courts.

6. Questions of fact are issues about an event or circumstance in a case. Such questions are exclusively resolved by trial courts.

7. Complaint is the pleading setting forth the factual background, legal theories and relief sought by the plaintiff in his or her case.

8. Summons is the document notifying the defendant of the filing of the case. It is served on the defendant as noted below.

1. Actual cause: The determination that the defendant’s breach of duty resulted directly in the plaintiff’s injury

2. Assumption of the risk: A defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk that the defendant caused.

3. Compensatory damages: Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, etc.

4. Contributory negligence: A defense to negligence whereby the defendant can escape all liability by proving that the plaintiff failed to act in a way that would have protected him or her from an unreasonable risk of harm and that the plaintiff’s negligent behavior contributed in some way to the plaintiff’s accident.

5. Dram shop acts: A regulation under which bartenders can be held liable for injuries caused by individuals who become intoxicated in their bars.

6. Good Samaritan statues

7. Gross negligence: An act committed with extreme reckless disregard for the property or life of another person.

8. Last clear chance doctrine: A doctrine used by a plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent.

9. Modified comparative negligence: In some states, a defense whereby the defendant is not liable for the percentage of harm that he or she proves can be attributed to the plaintiff’s own negligence if the plaintiff’s negligence is responsible for less than 50 percent of the harm. If the defendant establishes that the plaintiff’s negligence caused more than 50 percent of the harm, the defendant has no liability.

10. Negligence: Behavior that creates an unreasonable risk of harm to others.

11. Negligence per se: A doctrine that allows a judge or jury to infer duty and breach of duty from the fact that a defendant violated a statute that was designed to prevent the type of harm that the plaintiff incurred.

12. Proximate cause: The extent to which, as a matter of policy, a defendant may be held liable for the consequences of his or her actions. In the majority of states, proximate cause requires that the plaintiff and the type of injury suffered by the plaintiff were foreseeable at the time of the accident. In the minority of states, proximate cause exists if the defendant’s actions led to the plaintiff’s harm.

13. Punitive damages: Compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future. Also called exemplary damages.

14. Pure Comparative negligence: A defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove can be attributed to the plaintiff’s own negligence.

15. Reasonable person standard: A measurement of the way members of society expect an individual to act in a given situation.

16. Res ipsa loquitur: A doctrine that allows a judge or jury to infer that, more likely than not, the defendant’s negligence was the cause of the plaintiff’s harm even though there is no direct evidence of the defendant’s lack of due care.

17. Strict Liability: Liability in which responsibility for damages is imposed regardless of the existence of negligence. Also called liability without fault.

18. Unfortunate accident: An incident that simply could not be avoided, even with reasonable care.

1. Absolute privilege: A special right, immunity, permission, or benefit given to certain individuals that allows them to make any statements about someone without being held liable for defamation for any false statement made, regardless of intent or knowledge of the falsity of the claim.

2. Abuse of process: The malicious and deliberate misuse or perversion of a legal procedure.

3. Actual Malice: In defamation, either a person’s knowledge that his or her statement or published material is false or the person’s reckless disregard for whether it was false.

4. Appropriation for commercial gain: A privacy tort that occurs when someone uses a person’s name, likeness, voice, identity, or other identifying characteristics for commercial gain without that person’s permission.

5. Assault: A civil wrong that occurs when one person intentionally and voluntarily places another in fear or apprehension of an immediate, offensive physical harm. Assault does not require actual contact.

6. Battery: A civil wrong that occurs when one person intentionally and voluntarily brings about a nonconsented harmful or offensive contact with a person or something closely associated with him or her. Battery requires an actual contact.

7. Compensatory damages: Money awarded to a plaintiff as reimbursement for her or his losses; based on the amount of actual damage or harm to property, lost wages or profits, pain and suffering, medical expenses, disability, etc.

8. Conditional privilege: A special right, immunity, permission, or benefit given to certain individuals that allows them to make any statements about someone without being held liable for defamation for any false statements made without actual malice.

9. Conversion: Permanent interference with another’s use and enjoyment of his or her personal property.

10. Defamation: A false statement or an action that harms the reputation or character of an individual, business, product, group, government, or nation.

11. Disparagement: A business tort that occurs when a statement is intentionally used to defame a business product or service.

12. False Imprisonment: The unlawful restraint of another against the person’s will.

13. False light: A privacy tort that occurs when highly offensive information is published about an individual that is not valid or places the person in a false light.

14. Food disparagement: A tort that provides ranchers and farmers with a cause of action when someone spreads false information about the safety of a food product.

15. Fraudulent misrepresentation: (1) The tort that occurs when a misrepresentation is made with intent to facilitate personal gain and with the knowledge that it is false. (2) In contracts, a false representation of a material fact that is consciously false and is intended to mislead the other party. Also called intentional misrepresentation.

16. Intentional infliction of emotional distress: The tort that occurs when someone intentionally engages in outrageous conduct that is likely to cause extreme emotional distress to another person.

17. Intentional interference with contract: The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract that he or she has with another.

18. Intentional torts: A civil wrong resulting from an intentional act committed on the person, property, or economic interest of another. Intentional torts include assault, battery, conversion, false imprisonment, intentional infliction of emotional distress, trespass to land, and trespass to chattels.

19. Intrusion on an individuals affairs or seclusion: A physical, electronic, or mechanical intrusion that invades someone’s solitude, seclusion, or personal affairs when he or she has the right to expect privacy. The tort occurs at the time of the intrusion; no publication is necessary.

20. Malicious prosecution: A tort in which one person wrongfully subjects another to criminal or civil litigation for the sole purpose of causing problems for that other person, often in retaliation for previous litigation between the two.

21. Negligent torts: A civil wrong that occurs when the defendant acts in a way that subjects other people to an unreasonable risk of harm (i.e., the defendant is careless, to someone else’s detriment). Negligence claims are usually used to achieve compensation for accidents and injuries.

22. Nominal damages: Monetary damages awarded to a plaintiff in a very small amount, typically $1 to $5, to signify that the plaintiff has been wronged by the defendant even though the plaintiff suffered no compensable harm.

23. Private nuisance: A nuisance that affects only a single individual or a very limited number of individuals.

24. Public disclosure of private facts: A privacy tort that occurs when a person publishes a highly offensive private fact, such as information about one’s sex life or failure to pay debts, about someone who did not waive his or her right to privacy.

25. Public figure privilege: A special right, immunity, or permission that allows people to make any statement about public figures, typically politicians and entertainers, without being held liable for defamation as long as false statements were not made with malice.

26. Punitive damages: Compensation awarded to a plaintiff that goes beyond reimbursement for actual losses and is imposed to punish the defendant and deter such conduct in the future. Also called exemplary damages.

27. Slander of Quality: A business tort that occurs when false spoken statements criticize a business product or service and result in a loss of sales.

28. Slander of Title" A business tort that occurs when false published statements are related to the ownership of the business property.

29. Strict-liability torts: A civil wrong that occurs when a defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. The defendant is liable for the plaintiff’s damages without any requirement that the plaintiff prove that the defendant was negligent.

30. Tort: A violation of another person’s rights or a civil wrongdoing that does not arise out of a contract or statute; primary types are intentional, negligent, and strict-liability torts.

31. Tortfeasor: A person who commits an intentional or through-negligence tort that causes a harm or loss for which a civil remedy may be sought.

32. Trade libel: A business tort that occurs when false printed statements criticize a business product or service and result in a loss of sales.

33. Trespass to personal property: The temporary interference with a person’s use or enjoyment of his or her personal property.

34. Trespass to realty: A tort that occurs when someone goes on another’s property without permission or places something on another’s property without permission.

35. Unfair competition: The act of competing with another not to make a profit but for the sole purpose of driving the other out of business.

36. Wrongful civil proceedings: A tort in which one person wrongfully subjects another to criminal or civil litigation that has no justifiable basis.

1. Administrative law: The collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions and statutes.

2. Business law: The enforceable rules of conduct that govern the actions of buyers and sellers in market exchanges.

3. Case Law: The collection of legal interpretations made by judges. They are considered to be law unless otherwise revoked by a statutory law. Also known as common law.

4. Civil Law: The body of laws that govern the rights and responsibilities either between persons or between persons and their government.

5. Constitutional law: The general limits and powers of a government as interpreted from its written constitution.

6. Cost benefit analysis: An economic school of jurisprudence in which all costs and benefits of a law are given monetary values. Those laws with the highest ratios of benefits to costs are then preferable to those with lower ratios.

7. Criminal Law: A classification of law involving the rights and responsibilities an individual has with respect to the public as a whole.

8. Cyber law: A classification of law regulating business activities that are conducted online.

9. Historical School: A way of understanding and advancing the evolution of law by recognizing that law is not made but derived from the habits, traditions, and views of specific national leaders, e.g., kings.

10. Identification with the vulnerable: The school of jurisprudence of pursuing change on the grounds that some higher law or body of moral principles connects all of us in the human community.

11. Legal positivism: The school of jurisprudence which holds that because society requires authority, a legal and authoritarian hierarchy should exist. When a law is made, therefore, obedience is expected because authority created it.

12. Legal realism: The school of jurisprudence which dictates that context must be considered as well as law. Context includes factors such as economic conditions and social conditions.

13. Model (uniform) laws: A law created to account for the variability of laws among states; serves to standardize the otherwise different interstate laws. Also called model law.

14. Natural law: A school of jurisprudence that recognizes the existence of higher law, or law that is morally superior to human laws.

15. Precedent: A tool used by judges to make rulings on cases on the basis of key similarities to previous cases.

16. Private Law: Law that involves suits between private individuals or groups.

17. Public Law: Law that involves suits between private individuals or groups and their governments.

18. Restatements of the Law: Summaries of common law rules in a particular area of the law. Restatements do not carry the weight of law but can be used to guide interpretations of particular cases.

19. Sociological Jurisprudence: A theory of applying the law based on concrete problems to ensure that law is an effective method of ensuring that law is a form of social control that harmonizes the conflicting interest of individuals in society.

20. Stare decisis: Latin for “standing by the decision”; a principle stating that rulings made in higher courts are binding precedent for lower courts.

21. Statuary law: The assortment of rules and regulations put forth by legislatures.

22. Treaty: A binding agreement between two nations or international organizations.