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Common Law/Case Law

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Made and applied by the judges at the state level as judges decide cases according to the doctrine of precedent or stare decisis (let the decision stand)

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Equity

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Applied by state level judiciary to achieve justice when common law procedures would produce unfair results

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Injuction

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Court forbids a party to do some act or orders a part to perform an act

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Specific Performance

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Party is ordered to perform according to the contract terms

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Reformation

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Court rewrites contract in order to reflect intention of parties

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Recission

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Cancellation of contract

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Administrative Regulations & Decisions

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Made by state and federal agencies that were created by statute and hold delegated (granted) power

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Treaty

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Made with other nations by the US President on behalf of the nation, approved (ratified) by the Senate

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Ordinance

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Made by subunits of state governments for local issues, such as zoning

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Executive Order

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Issued by the state government or the US President under limited powers

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Substantive Law

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Establishes rights and duties of people in a society

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Procedural Law

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Establishes how to enforce the rights and duties established by substantive law

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Public Law

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Refers to the relationship between government and private parties

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Private Law

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Refers to the regulation of conduct between private parties

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Jurisprudence

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The philosophy of law as well as collection of laws

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Legal Positivism

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Law is the command of a recognized political authority

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Natural Law

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Universal moral rules bind everyone whether written or unwritten

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Plain Meaning Rule

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Court applies statute according to the usual meaning of the words

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Jurisdiction

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The power to hear and speak may be original (trial) or appellate (reviews trial court)

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General Jurisdiction Courts

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Hear most type of cases - Levels generally classified according to dollar amount of damages or location

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Limited Jurisdiction Courts

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Hear specialized types of cases, appeals from decisions often require new trial in General Jurisdiction Courts

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Subject Matter Jurisdiction

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Refers to a court's authority to hear particular types of disputes In addition to subject matter jurisdiction, a court must have either in personam or in rem jurisdiction

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In Personam Jurisdiction

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Requires that a defendant be a resident of, located within, or have committed acts within the legal boundaries of the court's authority

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In Rem Jurisdiction

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Applies when the property that is subject of a dispute is located within the physical boundaries of a court's authority

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Diversity Jurisdiction

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Exists when the dispute is between residents of different states and the amount exceeds $75,000

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Federal Question Jurisdiction

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Exists when dispute arises under the Constitution laws or treaties of the US

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Pleadings

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Plaintiff's complaint or petition plus the defendant's answer or response

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Answer

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The pleading of a defendant in which he or she may deny any or all the facts set out in the plaintiff's declaration or complaint

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Summary Judgment

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A device for disposing relatively clear cases without a trial

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Mens Rea

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Criminal intent - Defendant must have had capacity to form criminal intent Three types of incapacity recognized: intoxication, infancy & insanity

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Beyond a reasonable doubt

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Defendants are presumed innocent until proven guilty beyond a reasonable doubt

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Double Jeopardy Clause

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Protects defendants from multiple criminal prosecutions for the same offense

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Fourth Amendment

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Protects persons against arbitrary and unreasonable governmental violations of their privacy rights

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Fifth Amendment

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Prevents the federal government from depriving "any person of life, liberty, or property, without due process of law

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Sixth Amendment

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Applies to criminal cases in various ways. It entitles criminal defendants to a speedy trial by an impartial jury and guarantees them the right to confront and cross-examine the witnesses against them. The Sixth Amendment also gives the accused in a criminal case the right "to have the assistance of counsel" in her defense

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Eighth Amendment

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The Constitution limits the type of punishment imposed on convicted offenders, it forbids cruel and unusual punishments

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Miranda Warnings

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A person may remain silent if making a statement would assist the government in prosecuting the person

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Criminal RICO

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Under RICO, it is a federal crime for any person to (1) use income derived from a "pattern of racketeering activity" to acquire an interest in, establish, or operate an enterprise; (2) acquire or maintain an interest in an enterprise through a pattern of racketeering activity; (3) conduct or participate in, through a pattern of racketeering activity, the affairs of an enterprise by which he is employed or with which he is affiliated; or (4) conspire to do any of the preceding acts

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Civil RICO

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Under RICO, the government may also seek various civil penalties for violations. These include divestiture of a defendant's interest in an enterprise, dissolution or reorganization of the enterprise, and injunctions against future racketeering activities

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Intentional Tort

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An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The plaintiff must prove the additional element that the defendant acted with the specific intent to perform (i.e. acted with a mental state of intentionally performing) the act which was the proximate cause of the plaintiff's injuries

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False Imprisonment

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The intentional confinement of another person for an appreciable time (a few minutes is enough) without his consent

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Defamation

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Defamation is ordinarily defined as the (1) unprivileged (2) publication of (3) false and defamatory (4) statements concerning another

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Crime

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An act prohibited by the state; a public wrong

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Tort

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A private (civil) wrong against a person or his property

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Felony

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A serious crime such as murder, sexual assault, arson, drug-dealing, or a theft or fraud offense of sufficient magnitude. Most felonies involve significant moral culpability on the offender's part

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Misdemeanor

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Lesser offense such as disorderly conduct or battery resulting in minor physical harm to the victim. Misdemeanor offenses usually involve less—sometimes much less—moral culpability than felony offenses

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Assault

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Occurs when there is an intentional attempt or offer to cause a harmful or offensive contact with another person, if that attempt or offer causes a reasonable apprehension of imminent battery in the other person's mind

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Battery

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The intentional and harmful or offensive touching of another without his consent. Contact is harmful if it produces bodily injury. However, battery also includes non-harmful contact that is offensive —calculated to offend a reasonable sense of personal dignity

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Strict liability

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Liability without fault or, perhaps more precisely, irrespective of fault. This means that in strict liability cases, the defendant is liable even though he did not intend to cause the harm and did not bring it about through recklessness or negligence

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Demurrer

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A civil motion that attacks the plaintiff's complaint by assuming the truth of the facts stated in the complaint for purposes of the motion, and by arguing that even if these facts are true, there is no rule of law entitling the plaintiff to recovery. Roughly similar to the motion to dismiss for failure to state a claim on which relief can be granted

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Exclusionary Rule

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Evidence seized in illegal searches cannot be used in a subsequent trial against an accused whose constitutional rights were violated

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Conversion

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The defendant's intentional exercise of dominion or control over the plaintiff's personal property without the plaintiff's consent. Usually, the personal property in question is the plaintiff's goods

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The Reply

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In some jurisdictions, the plaintiff is allowed or required to respond to an affi rmative defense or a counterclaim by making a reply

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Negligence Per Se

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The doctrine that provides that a conclusive presumption of breach of duty arises when a defendant has violated a statute and thereby caused a harm the statute was designed to prevent to a person the statute was designed to protect

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Requests for Admission

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One party's written demand that the other party admit or deny, in writing, certain statements of supposed fact or of the application of law to fact, within a time period prescribed by law

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Pretrial Conference

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Either mandatory or held at the discretion of the trial judge. At this conference, the judge meets informally with the attorneys for both litigants. He or she may try to get the attorneys to stipulate, or agree to, the resolution of certain issues in order to simplify the trial

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Venue

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A requirement distinct from jurisdiction that the court be geographically situated so that it is the most appropriate and convenient court to try the case

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Invitee

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A person who is on private premises for a purpose connected with the business interests of the possessor of those premises, or a member of the public who is lawfully on land open to the public

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Last Clear Chance

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A doctrine that allowed a contributorily negligent plaintiff to recover despite his failure to exercise reasonable care for his own safety by arguing that the defendant had the superior opportunity (last clear chance) to avoid the harm

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Licensee

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A person lawfully on land in possession of another for purposes unconnected with the business interests of the possessor

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Contributory Negligence

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A traditional defense to negligence liability based on the plaintiff's failure to exercise reasonable care for his own safety

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Comparative Negligence

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The contemporary replacement for the traditional doctrine of contributory negligence. The basic idea is that damages are apportioned between the parties to a negligence action in proportion to their relative fault

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Preponderance of Evidence

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The standard of proof in a civil case in which a judge or jury must believe the plaintiff's story and evidence is stronger than the defendant's version.

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Essentials of Crime

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To convict a defendant of a crime, the government ordinarily must (1) demonstrate that his alleged acts violated a criminal statute; (2) prove beyond a reasonable doubt that he committed those acts; and (3) prove that he had the capacity to form a criminal intent

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Patent

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Under that agreement, the inventor obtains the exclusive right (for a limited time) to exclude others from making, using, or selling his invention, in return for making the invention public by giving the government certain information about it

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Copyrights

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Copyright law gives certain exclusive rights to creators of original works of authorship. It prevents others from using their work

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Trademarks

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Any word, name, symbol, device, or combination thereof used by a manufacturer or seller to identify its products and distinguish them from the products of competitors

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Transferred Intent

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D's intent to harm a particular person or object but in fact, D harms another person or object (most commonly applied to homicides, battery, and arson). DOES NOT APPLY TO ATTEMPT (but if you attempt murder on A and shoot B instead, you can be held liable for attempted murder on A and murder on B (no merger!)

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Trespass to Land

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Trespass to land may be defined as any unauthorized or unprivileged intentional intrusion upon another's real property

Business Law – L 203 – F. Woodard – IUPUI – Exam 1 – Flashcards

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