law 1
Terms
undefined, object
copy deck
- Describe the Oculist Case!
- Doctor accidently harmed his patient. Defendant lawyer is making a procedural arguement. Plaintiff should be arguing that it is a contract breech. In addition to procedural law, this case illuminates the fact about precedence.
- What do the three branches of government do on a federal and state level?
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*Legislative: congress/(state legislature)
-pass statutes
-ratifies treaties
-creates agencies
*Executive: president/(governor)
-proposes statutes
-signs/vetos bills
-oversees agencies
-issues executive orders
*Judicial: federal courts/(state courts)
-interpret statutes
-create common law
-review the consitutionality of statutes - Describe Ex Parte American Carpet Sales, Inc.:
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a. Bought carpet; claimed that when they got the bill, in the invoice had been fraudulently increased.
b. Served discovery requests; company objected bc claims were too broad; court ordered for info to be given; company appealed
c. Does the company have to give up the info?
-Time
-Privacy of customers
-Court says: if discovery will help the suit, then it should be allowed
-Decision: Trial court was allowed to demand the info; writ was issued - What are the two ways to resolve disputes?
- Litigation and alternative dispute resolution
- What is the difference between public and private law?
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Public law: rights/obligations of governments as they deal with national citizens
Private law: regulates the duties between individuals, - what is a motion after the verdict?
- judgment non obstante ceredicto
- what is a writ?
- order by central government to hear the case
- Describe the Quigley v. First Church of Christ, Scientist
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Parents divorce; 12 year old kid was ill (later diagnosed with diabetes). The religion looks at disease as an "error of the mind" and is opposed to traditonal medicine. The nurse failed to call medical help and the boy died in her care. ISSUE: Did the defendant have a duty to summons medical help?
1)Presedent- person has no duty to protect others from harm, unless there is a special relationship
2)Relgious freedom: If religious conselors contacted outside help, followers might not be followers. (chilling effect on religious followers)
3)DUTY: Quigley's own claim made her lose the case: The religious group was there for spiritual healing, not medical. - what is an injunction
- a court order telling someone to stop something
- What is precedence and stare decisis?
- Judges decide current cases based on the judgements in past cases. Stare decisis menas "let the decision stand"
- what is a directed verdict?
- a directed verdict is when the plaintiff has entiredly failed to prove some aspect of her case.
- what is voir dire?
- the process of selecting a jury to "speak the truth"
- what is the diffence between the burden of proof for civil and criminal case:
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Civil case: preponderance of the evidence (at least slightly more likely to be true)
Criminal case: beyond a reasonable doubt - what is appellate court?
- No jury, no witness, no new evidence. They accept the facts given by trial courts and review the trial record to see if the court has made "errors of law"
- what are the three ways of alternative dispute resolution?
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1) negotiation
2) mediation: neutral person tries to get a voluntary settlement
3)Arbitration- neutral person that has the power to impose an award
-mandatory arbitration: they agree in advance to arbitrate
- what is a federal question jurisdiction?
- a claim based on the US constitution, a federal statute, or a federal treaty
- What are the two civil lawsuits permitted in federal court?
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1)federal question cases
2)diversity cases - What is the difference between substantive and procedural rules?
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substantive: states the rights of the parties
Procedural: tells how a court can go about settling a dispute - What are statutes?
- statutes are laws made up by a legislative body
- What is the difference between criminal and civil law?
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criminal law: dangerous behavior is outlawed by society. Government prosecutes it; guilt is determined; punishment and/or compensation
Civil law regulates the rights between people. victim files suit; guilt is not determined; compensation - Describe McCollum vs. CBS Inc. (OZZY OSBORNE AND SUICIDE)
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A suicide case was brought upon Ozzy and music producer. Lyrics were about suicide.
ISSUE: was McCollum's suicide foreseeable?
Arguement for the parents: lyrics caused death. They should have known their audience and it was foreseeable/inevitable.
Arguement for Ozzy and CBS: 1st amendment, right to show arts and entertainment without silencing the artists with outlandish lawsuits. - What happens at trial court?
- This is the only court to hear testimony from witnesses and receive evidence. The court reviews the facts of the current case and relates them to prior cases. State or federal court can only hear cases they have jurisdiction over.
- what are trial courts of limited jurisdiction?
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Small claims:civil lawsuits under $2500
Municipal court: traffic and minor criminal matters
Probate court: settle the estates of dead people
Domestic Relations Court: marital disputes and child custody issues - What does the US constitution do?
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1)establishes congress, Presidency and Courts
2)gives to states all powers not given to the federal government
3)guarentees basic rights to all citizens - What are divesity cases?
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1) plaintiff and defendant are citizens of different states
2)the amount is over $75000 - what is a writ of certiorari?
- request for supreme court to hear the case
- What are the theories of jurisprudence?
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1) legal positivism: the law is what the soverign says (decisions stand, regardless of morality)
2) natural law: an unjust law is no law at all (laws must have a good moral basis)
3) legal realism: who enforces the law is more important that the actual law (enforcers determine if the law is applied in a fair way) - What are administrative agencies?
- Agencies in charge with investigating, regulating, and adjudicating industries or issues. (they do the day to day work)
- What is common law?
- The accumulation of precedent.