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244 Cards in this Set
- Front
- Back
3 Primary Elements of Law
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1. a rule
2. laid down by the government 3. enforced by the government |
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First known written law
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Code of Hammurabi (1790 BC)
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3 things the law provides
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certainty, predictability, and stability
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Rule of Law
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a nation employs rule of law when the law is made GENERALLY and EQUALLY applicable
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Outcome of Rule of Law
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means that the people making the laws create fair laws because they also have to follow the laws
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Property
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the legal right to exclude or keep others from interfering with what you own, with your resources
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3 ways of applying property
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1. Public Property
2. Private Property 3. Common Property |
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Law Property
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means the "ownership" (DON'T think of as the things owned)
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What do property rights give
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a major incentive to develop resources
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Jurisprudence
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different philosophies of law
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Common Law vs. Civil Law (Legal Systems)
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Common Law judges follow former decisions made in courts called precedents while Civil Law judges can apply the law differently for any case
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Common Law (legal system)
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emphasizes the role of judges in interpreting and applying the law (courts have the power to interpret the law and apply it to different cases)
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Civil Law (legal system)
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relies more on legislation than judicial decisions
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Where did Common Law Begin?
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England
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Public Law vs. Private Law
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Public law deals with matters involving the entire society while Private Law only deals with matters between private citizens
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Public Law
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matters involving the regulation of society
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Public Law includes:
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Constitutional Law
Administrative Law Criminal Law |
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Constitutional Law
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involves the interpretation and application of either the federal or state constitution
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Criminal Law
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specifies various offenses against the proper order of the state
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Private Law
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matters arising between private citizens
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Private Law includes:
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Property Law
Contract Law Tort Law |
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Tort Law
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establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another
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Civil Law (lawsuit)
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Generally means noncriminal lawsuits. Law dealing with private rights between people
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Criminal Law
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Government prosecution of a citizen who commits an illegal action
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The same incident/facts may give rise to both a separate criminal and civil actions
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Ex: OJ Simpson Trial
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Substantive Law
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Defines the legal relationship between people, business, and the state
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Procedural Law
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Method and means by which substantive law is made and administered (provides the rules that courts use when resolving disputes)
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United States Constitution
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The highest law in the nation which lays out the law of the nation (supreme law of the nation)
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What does the U.S. Constitution establish?
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The federal government, and its amendments guarantee basic rights and liberties
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Purpose of State Constitutions
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Establishes and regulates the state government (sets up rules for the states)
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Sources of Law
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Constitution
Legislation Administrative Regulations Judicial Decisions/Case Law |
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Legislation
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Laws written and passed by elected representatives in the Legislative branch (formal written laws)
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Statute/Act
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Legislation passed by Congress or a state legislature
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Ordinances
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Laws passed by local governments
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Codes
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Compilations of legislation at all levels of government
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2 Problems to address with legislation
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Uniformity of legislation and interpretation of legislation
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2 methods to achieve uniformity in legislation
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1. Congress can enact a single law that preempts (overrides) varying state laws (limitation is that certain powers are left only to the state)
2. State legislatures can work together to pass one uniform law |
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Difficulties with Interpretation of the Law
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Trying to make the law very specific and easy to understand while also not wanting to be so specific that the law isn’t flexible
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Statutory Construction
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Courts have the job to interpret the legislation and apply them to different cases
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Administrative Regulations
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Give clarity and provide enforcement of statutes
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Judicial Decisions/Case Law
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Legal opinions issued by a judge deciding a legal issue which has arisen in a case
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What do Judicial Decisions Become?
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These opinions then become prior precedents for later cases
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Stare Decisis
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The doctrine of prior precedents
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Advantage of Stare Decisis
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People became secure in their right of property
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Advantages of Judicial Decisions
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Reliance on past precedent offers stability and predictability in the legal system, allows judges to take unique facts of a case into consideration to reach a just outcome, and allows judges to consider change in circumstances
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Disadvantages of Judicial Decisions
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Volume, time, expense, conflicting precedent, lack of precedent, rejected precedent, conflict of laws
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Hierarchy of Laws
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U.S. Constitution, Federal Statues, Federal Administrative Regulations, State Constitutions, State Statutes, State Administrative Regulations, Law Ordinances, Case Law
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3 Types of Court Personnel
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Judges and Justices, Jurors, and Lawyers
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Judge
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The title assigned to those who preside over trial courts and most appellate courts (also called magistrates)
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Justices
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The title granted to those on the U.S. Supreme Court, along with some other state appellate courts
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Question of Fact
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A factual issue disputed by the parties
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Question of Law
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An issue concerning the application or interpretation of the law
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Trial Court Judges
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Decide questions of law and preside over jury trials
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“Bench Trial”
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when a trial court judge decides questions of fact and render a verdict (process is done without a jury)
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main duty of trial court judges
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to observe and to apply constitutional limitations and guarantees
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Appellate Judges and Justices
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Determine whether the trial judge correctly applied the law
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What do justices usually deal with the most
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Cases dealing with question of law
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Jurors
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The jury is a fact-finding body
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What gives us the right to a trial by jury
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6th and 7th Amendment in the Bill of Rights
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Petit Jury
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Issues a verdict in criminal and civil trials after hearing evidence from both sides
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2 types of Jurors
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Petit Jury and Grand Jury
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Grand Jury
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Determines whether the government has enough evidence to go forward with a criminal prosecution (only used in criminal cases)
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Problem with Juries
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They become disproportionate because people make up excuses to get out of jury duty
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Lawyers
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Represent private parties in court by presenting evidence and legal arguments
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3 Capacities that Lawyers Serve
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counselor, advocate, and public servant
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State Courts
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Hear cases arising under state law or state constitution
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4 Categories of Cases Federal Courts Hear
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1. Federal Question Cases
2. Cases involving the US as a party 3. Cases between two or more states 4. Diversity of citizenship cases |
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Subject Matter Jurisdiction
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The authority of a court to hear cases involving specific issues of law (federal courts have it over state courts)
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Trial Courts
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The site of the initial trial
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What takes place in a trial court?
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Witness testimony is heard and the jury renders a verdict
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What % of court cases are resolved at the trial court level
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95-98%
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Appellate Courts
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Review the legal decisions made by trial courts
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2 Levels of Appellate Courts
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Courts of Appeal and the Supreme Court
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Supreme Court
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The highest court in the jurisdiction which hears appeals from the court of appeals
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Writ of certiorari
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A proceeding by which an appellate court may review the ruling of an inferior court
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How many courts of appeal does the federal system have?
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11 Primary Courts
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Hierarchy of Courts
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Trial Courts → Appellate Courts → Supreme Court
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Most significant power of the courts
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Judicial Review
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Judicial Review
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The power to review laws passed by the legislative body and declare them to be unconstitutional and void
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Judicial Restraint
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Describes the philosophy that judicial power should be used sparingly
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Judicial Activism
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Describes the belief that courts should play a larger role in correcting societal wrongs
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Litigation
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Bringing and/or defending an action in court to enforce a particular right
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Plaintiff
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The party initiating the lawsuit
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Defendant
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The party being sued
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Counterclaim
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A different claim brought by the defendant against the plaintiff
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Counterplaintiff
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The defendant who files a counterclaim
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Counterdefendant
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The plaintiff who must defend itself against a counterclaim
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State allows all persons to join in one lawsuit as plaintiffs if it is all based on the same cause
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:)
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Third-party defendants
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Party brought into the lawsuit as an additional defendant by the original defendant
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Appellant
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The party challenging the lower court ruling (in appeals court)
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Appellee
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The party that was successful in trial court (in appeals court)
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Petitioner
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The party challenging the lower court ruling (in Supreme Court)
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Respondent
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The party that prevailed in the court of appeals (in Supreme Court)
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Standing to Sue
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Requirement that a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing
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2 requirements for standing
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1. the plaintiff must allege that the litigation involves a case or controversy
2. the plaintiff must allege a personal stake in the resolution of the controversy |
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Class Action
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A lawsuit in which one or more plaintiffs file suit on both their own behalf and on behalf of all other who may have a similar claim
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2 reasons the judicial system allows class action
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it is more efficient to have one single suit and people bring a class action when individual law suits wouldn’t be viable
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Personal Jurisdiction
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Power of a court to hear and determine a lawsuit involving the parties before it
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When does the court obtain personal jurisdiction?
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Obtains personal jurisdiction over a plaintiff when he or she files suit
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Ways the court earns personal jurisdiction from the defendant
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The defendant voluntarily appears, the defendant is served with process in the state (summons), the defendant is served with process outside the state
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Long-arm statutes
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A state can provide for the service of process beyond their boundaries
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What can no case proceed forward without?
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The existence of both subject matter and personal jurisdiction
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Pleadings
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The legal documents that are filed with a court to begin the litigation process
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Complaint
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Filed by the plaintiff initiating a lawsuit
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Answer
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Filed by the defendant, admitting or denying each allegation
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Reply
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The plaintiff’s response to the defendant’s counterclaims, if any
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Discovery
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The procedure by which each party obtains the information needed to prepare its case
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Ways to gain discovery
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Interrogatories, request for production of documents, depositions, request for admission
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Interrogatories
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Written questions which must be answered truthfully by the other party
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Request for production of documents
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Written request for certain categories of documents in the possession of other party
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Deposition
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Oral questioning by an attorney of a witness who must answer under oath
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3 benefits of a deposition
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helps lock witnesses in, helps the person learn what the defendant know, also if the person dies you can use the tape as evidence
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Request for Admission
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Written question asking the other party to specifically admit or deny a certain fact
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Scope of Discovery
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Requested discovery must be likely to lead to admissible evidence (very broad)
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Motions
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Written requests made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant
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Statute of Limitations
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A statute that sets a date after which a lawsuit may not be brought
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Voir Dire
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The preliminary examination of prospective jurors to determine their qualifications and suitability to serve on the jury
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What does Voir Dire help?
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Ensure the selection of a fair and impartial jury
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Reasons you can challenge a juror
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For cause and peremptory challenges
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Peremptory Challenge
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Kick someone off being a juror having no reason or cause
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Steps of a Trial
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Jury selection, opening statement, presentation of evidence, closing statement, jury instruction, verdict
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Burden of Proof
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The level of proof necessary to prevail at trial
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Burden of Proof needed in criminal cases
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Beyond reasonable doubt
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Burden of proof needed in Civil cases
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Preponderance of the evidence (more likely to happen) or clear and convincing proof (more stringent proof)
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Order of Litigation
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Pleadings, Pretrial Motions, Discovery, Pretrial Conference, Trial, Post Trial Motions, Appeal
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Verdict
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The jury’s decision
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Alternative Dispute Resolution
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Procedures for settling disputes by means other than litigation
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Settlement
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Resolution reached though direct negotiations between the parties (least formal method of ADR)
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Arbitration
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Submitting a dispute to a neutral third-party who issues a binding decision
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Arbitrator
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The decision maker in arbitration who has no incentive on which decision he makes
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Most used type of ADR
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Arbitration
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Voluntary Arbitration
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Arises when the disputing parties agree to arbitrate their disputes
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Mandatory Arbitration
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Arises when a court or statute requires the disputing parties to arbitrate their dispute
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Submissions
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The act of referring a matter to arbitration
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Award/Decision
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The arbitrator decides which side wins the case
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Reasons selecting an arbitrator
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Expertise, number of arbitrators, scope of authority
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Federal Arbitration Act
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Set the rules to govern the arbitration process
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Judicial Review for Voluntary Arbitration
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Only overruled by the courts if the ruling was arbitrary, obtained by fraud, or contrary to public policy
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Judicial Review for Mandatory Arbitration
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Available if one party is dissatisfied with the result
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De novo judicial review
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The court will hear the case all over as if it hadn’t gone through arbitration
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Mediation
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Process by which a third person attempts to assist disputing parties in resolving their differences (decisions are not binding)
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Way that Mediation differs from Arbitration
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Decision made by the mediator is not binding
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Reason Mediation has increased
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Disputing parties retain control over when to settle and when to continue disputing
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Separation of Power
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The Constitution provides a system of checks and balances between the Legislative, Executive, and Judicial branches of government. Also divides power between the federal and state/local governments
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Federalism
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A system of government in which power is divided between a central, national government and various regional, state governments
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The Supremacy Clause (Article VI)
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Establishes that the Constitution, all federal statutes, and U.S. treaties are “the supreme law of the land”
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Preemption
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Occurs when the federal government has claimed the exclusive right to regulate a particular area
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Heart of the reason why the federal government has become so powerful
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The supremacy clause and preemption
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Contract Clause
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Regulates states and local government (doesn’t apply to the federal government)
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1st Amendment
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Freedom of Speech and Freedom of the Press
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Commercial Speech
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?
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Are Constitutional Rights absolute
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no. the government can limit them
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Establishment Clause
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congress shall make no law respecting an establishment of religion
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Free Exercise Clause
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Congress will make no law prohibiting the free exercise of religion
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Due Process
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the requirement that all legal proceedings be fair
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who is exempt from following due process
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private entitites
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Procedural Due Process
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one must be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property
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Equal Protection
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that no state shall discriminate against a person (laws apply to everyone)
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Commerce Clause
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Congress has the power to regulate commerce with foreign nations, and among several states
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Interstate Commerce
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commercial trade, business, movement of goods or money, or transportation from one state to another
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Intrastate Commerce
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commerce occurring exclusively in one state
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Who regulates intrastate commerce?
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states
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Police Powers
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the capacity of a state to regulate matters affecting public welfare, security, morality, and safety
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Dormant Commerce Clause
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states mat not pass laws or regulations which could affect interstate commerce
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Parts of the Commerce Clause
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Regulation of Foreign Commerce, Regulation of Interstate Commerce, Limitation on State Police Powers, Limitation on State Taxation
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2 Primary Purposes of Agencies
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Rule-making and Enforcement
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Freedom of the press is not absolute
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Freedom of the press is usually constructed to prohibit prior restraints
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Defamation
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The publication of anything injurious to the good name or reputation of another
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Symbolic Speech
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Nonverbal expression that is covered in freedom of speech
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Apportionment
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The concept used by states to divide a company’s taxable income so that no one state burdens a company with an unfair tax bill
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2 types of regulatory authority Administrative Agencies
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quasi-legislative and quasi-judicial
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Quasi-legislative
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An agency can issue rules that have the impact of laws
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Quasi-judicial
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Agencies can make decisions like courts
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Notice-and-Comment Rule Making
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?
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In order to challenge a promulgated regulation, a party must show
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1. The delegation of authority to the agency was improper
2. the agency failed to follow proper procedure 3. or the agency exceeded its authority |
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Property
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The legal right to exclude other from resources that are originally possessed or are acquired with force, theft, or fraud
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Resource
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Anything that someone may need or want
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Methods of Allocating Resources
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Communism/Socialism and Private Property
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Benefits of a Private Property System
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Increases the availability of resources, generally associated with a more free and democratic government, promotes incentive, generates capital formation, increases prosperity by making resources easy to sell and divide
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2 Divisions of Property
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Real Property and Personal Property
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Real Property
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Ownership and interest in land (includes fixtures)
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Personal Property
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All other types of movable resources
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Types of Personal Property
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Tangible and Intangible Property
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Fixture
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Personal property that has become real property, generally through physical attachment
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Tangible Property
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Property which can be touched
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Intangible Property
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Property with no physical existence
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Methods of Acquiring Property
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Acquisition through Exchange
Acquisition through Possession Acquisition through Confusion Acquisition through Accession Acquisition through Gift |
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Acquisition Through Exchange
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Most common way of coming to have property (ex: when you buy a car you exchange one form of resource you own (money) for another form of resources (car))
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Contract
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A legally enforceable promise
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Contract Rules
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Control the way owners make agreements to exchange resources in the property-based legal system
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What do contract rules do?
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Make exchanges between owners legally binding and enforceable (this allows for one person to sue another if any wrong doing occurs later)
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Ways of Acquiring Resources Through Possession
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1. Rule of First Possession
2. Abandonment 3. Lost Property 4. Adverse Possession |
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Rule of First Possession
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The first person to reduce previously unowned things to possession becomes their owner
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Abandonment
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Similar to the Rule of First Possession in that is someone has abandoned what they own the first person to reduce it to possession owns it
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How does the law measure if the item is abandoned?
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Measured by intent (whether the previous owner intended to abandon something)
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Lost Property
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Finder of item become its owner by reducing it to possession and following a statutory procedure (ex: handing it over to the cops for a certain amount of time)
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Things that are LOST vs. Things that are MISLAID
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Things that have been lost go to the first person who subsequently reduces them to possession. Things that have been mislaid go to the person who owns the premises where the item was mislaid
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Example of Things Lost vs. Things Made
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$100 dollar bill on a table has been mislaid but if it is on the floor it has been lost
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Adverse Possession
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Obtaining ownership of land belonging to another through continuous possession
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Requirements for Adverse Possession
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1. Open and Notorious: possessor must occupy land to put the true owner of the land on notice
2. Actual and Exclusive: possessor must physically occupy the land 3. Continuous: possession must not be interrupted 4. Wrongful: the possessor must not have the owner’s permission to be on the land 5. For a Prescribed period of time: adverse possession of between 10-20 years before the possessor become the new owner |
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Acquisition through Confusion
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Arise when fungible goods (good that are identical) are mixed together
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Acquisition through Accession
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Become the owner through accession, which is property acquired by adding something to an owned object
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Acquisition through Gift
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When one person gives a gift to another. No mutual exchange of resources occur
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Gift
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Transfer of ownership by intent and the delivery of the object gifted
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Donor
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The person giving the gift
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Donee
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The person receiving the gift (the new owner)
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The process of Acquisition through Gift
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The donor (owner of something) gives it to the donee (who becomes the new owner)
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Testamentary Gift
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A gift made though a will
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Types of Ownership
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1. Fee Simple
2. Life Estate 3. Leasehold Estate 4. Concurrent Ownership |
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Fee Simple
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Represents the maximum estate allowed under law, the owner having the fullest legal rights and powers to possess, use, and transfer the land
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Fee Simple Absolute
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Has no limitations or conditions attached
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Fee Simple Defeasible
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May have a condition attached to its conveyance (transfer)
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Life Estate
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Grants an ownership of land for the lifetime of a specified person
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Leasehold Estates
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The property right granted to tenants by a landlord
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Concurrent Ownership
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When both personal and real property interests have more than one person that own the same thing (ownership is undivided)
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Title
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A document serving as evidence of ownership of property
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Deed
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A document of title transferring ownership of land
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2 protections against ownership problems with deeds
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Warranty Deed and a Quitclaim Deed
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Warranty Deed
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Promises the grantee (usually the buyer) that the grantor (seller) has good ownership and the full power to convey it
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Quitclaim Deed
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Makes no guarantees other than that the grantor surrenders all claim against the land
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Easement
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The right of one other than the owner of the land to some use of that land
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Bailment
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The temporary transfer of possession of personal property from one person to another
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Bailor
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Owner of the Property
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Bailee
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Person with whom the property is left
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3 Categories of Bailment
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1. for the sole benefit of the bailor
2. for the sole benefit of the bailee 3. for the mutual benefit of both parties |
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Security Interest
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A application of property that gives someone an interest in what belongs to another, usually to secure an extension of credit
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Types of Security Interest in Land
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Mortgage
Deed of Trust Land Sales Contract |
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Mortgage
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Borrow money from a bank or financial institution and in return give the creditor a security interest
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Deed of Trust
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Securing an extension of credit through an interest in the land (done by signing a deed), which is then given to a third party person (or trustee)
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Land Sales Contract
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Buying a house or land (A type of document to secure an extension of credit through an interest in the land purchased)
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Foreclosure
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When the mortgagor fails to perform his or her obligations as agreed, the mortgagee can come and seize the mortgagor property equal to the amount owed
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Deficiency
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If the value of the house doesn’t equal the amount owed then the mortgagee can sue the debtor for the balance owed
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Right of Redemption
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Allows the mortgagor to get back the land upon payment of the full amount of the debt
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Secured Transactions
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Any loan or credit in which property is pledged as security in the event payment is not made
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What do secured transactions involve?
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A debtor who agrees to give the creditor a security interest in a valuable object (or collateral)
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Attachment to Secured Transactions
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Occurs when a secured party has given value, the debtor owns the collateral, and security agreement is given
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Perfection
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Arises when a security interest has attached and the creditor has taken all proper steps required by Article 9
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Ways to perfect a security interest
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Financial Statement and purchase money security interest (PMSI)
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Nuisance
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A use of property that interferes with the legal rights of others by causing damage, annoyance, or inconvenience
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Public Nuisance
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Arising from some use of land that causes inconvenience or damage to the public
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Private Nuisance
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An unreasonable use of one’s property so as to cause substantial interference with the enjoyment or use of another’s land
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Zoning
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Laws that divide counties or municipalities into use districts designated residential, commercial, or industrial
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Eminent Domain
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The power of the government to take private property for public use after the payment of just compensation to the property owner
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Just Compensation
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The government can only take what belongs to private owners upon payment of “just compensation”
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