Term
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Definition
-the power or authority of a court to determine the merits of a dispute and to grant relief
- a court has this when it has this power over the subject matter of the case, and over the persons of the plaintiff and defendant, or the property that is in dispute |
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Term
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Definition
-a government body that is empowered to resolve disputes according to law.
-reactive institutions
-do not undertake to adjudicate disputes on their own initiative and can only act when someone files suit |
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Term
| 1860s basis for jurisdiction |
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Definition
-the first involved showing that the party has been served with the boundaries of the state in which the lawsuit was filed with a summons originating from within the forum state
-upheld by Burnham v. Superior Court
-2nd based on consent (a plaintiff implicitly consents to personal jurisdiction in a state when he or she files a lawsuit with a clerk of court) |
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Term
| Defendants can consent to personal jurisdiction in the following circumstances... (1) |
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Definition
| 1. the defendant makes a general appearance in a case. If the defendant argues the substantive facts of the case, he or she is implicitly consenting to personal jurisdiction. Thus, a defendant wishing to challenge in personal jurisdiction must notify the court that she or he is making a special appearance for the limited purpose of consenting jurisdiction |
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Term
| Defendants can consent to personal jurisdiction in the following circumstances... (2) |
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Definition
| A nonresident defendant allegedly commits a tortious act within the forum state. |
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Term
| Defendants can consent to personal jurisdiction in the following circumstances... (3) |
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Definition
| A nonresident drives a motor vehicle on the roads of the forum state and becomes involved in a collision. Under the laws of most states, the motorist impliedly appoints an official of the forum state to be his agent for receiving service of the plaintiff's summons arising from the accident |
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Term
| Why was a new theory for jurisdiction necessary? |
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Definition
| because nonresident defendants rarely consent to being sued and can avoid being served within the forum state by never going there |
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Term
| What was the new theory for jurisdiction? |
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Definition
| "sufficient minimum contacts" rule |
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Term
| "Sufficient minimum contacts" |
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Definition
-determined by looking at the particular facts of a case
-for example... exist in the state in which the defendant is domiciled |
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Term
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Definition
| permit the exercise of personal jurisdiction over nonresident defendants who have had sufficient minimum contacts with the forum state |
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Term
| When a plaintiff successfully uses the long-arm statute, the defendant... |
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Definition
| can be required to return to the forum state and defend the lawsuit. If the defendant fails to do so, he or she risks the entry of a default judgment. |
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Term
| In Personam Jurisdiction over Corporations |
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Definition
-Every corporation has been incorporated by one of the fifty states and is therefore subject to the inpersonam jurisdiction of that state's courts.
-Generally, a state will require that all corporations doing business within its borders register with it and appoint an in-state person or company as its agent. |
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Term
| What would establish a corporate presence that would be sufficient for in personal jurisdiction? |
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Definition
-soliciting orders, writing orders, and entering into contracts would establish a corporate presence that would be sufficient for in personal jurisdiction
-the mere presence of corporate officers within the forum states or the occasional shipping of orders into the forum is not sufficient for personal jurisdiction |
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Term
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Definition
| directed against the property itself and resolves disputes about property rights |
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Term
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Definition
| determine where judicial authority should be exercised |
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Term
| In civil actions, Congress has authorized federal courts to exercise subject-matter jurisdiction in two categories of cases... (1) |
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Definition
| exists where the case involves claims based on the Constitution, laws, or treaties of the United States. Such claims would include suits by the U.S. and civil rights, patent, copyright, trademark, unfair competition, and admiralty suits |
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Term
| In civil actions, Congress has authorized federal courts to exercise subject-matter jurisdiction in two categories of cases... (2) |
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Definition
| Diversity of citizenship jurisdiction exists if a suit is between citizens of different states or between a citizen of a state and an alien, and if the amount in controversy exceeds $75,000 (the jurisdictional amount). Diversity jurisdiction provides qualifying plaintiffs with a choice of a federal or state forum, for many types of civil actions. However, federal courts traditionally have declined to exercise diversity jurisdiction in divorce actions, child custody cases, and probate matters. |
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Term
| What does federal jurisdiction require? |
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Definition
| the diversity of citizenship be complete |
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Term
| What are Congress's special citizenship rules for corporations? |
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Definition
| A corporation is considered a citizen in the state where it is incorporate, as well as in the state of its principal place of business. |
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Term
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Definition
-a suit does not have to be brought in a federal district court just because that court could exercise jurisdiction over the subject matter and over the person or property
-a plaintiff may bring a dispute in any state or federal court that has jurisdiction
- a defendant sued in a state court may have a right to have the case removed to the federal discreet court
-any civil action brought in a state court that could originally have been filed in a district court is removable |
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Term
| When is removal jurisdiction permissible? |
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Definition
- where a federal question is raised or where the requirements for diversity or citizenship jurisdiction are met/
-where the basis of removal jurisdiction is diversity of citizenship, that basis must exist at the time of filing the original suit and also at the time of petitioning for removal. |
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Term
| Federal Rules of Civil Procedure |
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Definition
| apply in federal courts unless they would significantly affect a litigant's substantive rights, encourage forum shopping, or promote a discriminatory application of law |
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Term
| case-or-controversy requirement |
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Definition
| court will not answer a question, it will answer a case |
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Term
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Definition
| focuses on whether a case has developed sufficiently to be before a court for adjudication. |
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Term
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Definition
| - focuses on whether the plaintiff who filed the lawsuit is the right person or entity to be bringing this particular claim before the court |
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Term
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Definition
| outside the judicial power because there is no case or controversy |
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Term
| political-question doctrine |
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Definition
| provides that the judicial branch is not entitled to decide questions that more properly should be decided by the executive and legislative branches of the federal government |
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Term
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Definition
| provides that American courts should not determine the validity of public acts committed by a foreign sovereign within its own territory |
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Term
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Definition
| there is a time period, established by the legislature, within which an action must be brought upon claims or rights to be enforced |
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Term
| Equitable doctrine of laches |
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Definition
| this doctrine can be used in some circumstances to deny a plaintiff an equitable remedy. One such context involves plaintiffs who unjustifiably procrastinate when it comes to serving the defendant with a summons. |
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Term
| claim preclusion (res judicator) |
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Definition
| provides that a final decision by competent court on a lawsuit's merits concludes the litigation of the parties and constitutes a bar to a new suit |
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Term
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Definition
| once a claim has been judicially decided, it is finally decided. The loser may not bring a new suit against the winner for the same claim in any court. The loser's remedy is to appeal the decision of the lower court to a higher court. |
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Term
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Definition
| no sovereign can be sued without its express consent |
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Term
| doctrine of governmental immunity |
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Definition
-"monarch can do no wrong"
-although most U.S. jurisdictions have retained the doctrine, England has repudiated it.
-when the act is within the scope of their authority and in the discharge of their official duties. |
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Term
| Immunity increases the likelihood of what? |
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Definition
| that governmental officials will act impartially and fearlessly in carrying out their public duties |
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Term
| When are judges afforded absolute immunity? |
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Definition
| when they exercise judicial powers, regardless of their motives or good faith |
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Term
| When are police officers entitled to qualified immunity? |
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Definition
| from suit because of the discretionary nature of police work and the difficulty of expecting officers to make instant determinations as to how the constitution should be interpreted. |
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Term
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Definition
| husbands and wives were immune from liability for negligence and intentional torts perpetrated against their spouses |
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Term
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Definition
| created to prohibit unemancipated minor children from suing their parents for negligence or intentional torts |
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Term
| immunity through contract |
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Definition
-parties can create their own parties by agreeing to this
-is held invalid if the contract is against public policy or is a result of unfair negotiations |
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Term
| Administrative Procedure Act (APA) |
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Definition
| helped to improve and strengthen the administrative regulatory process in the federal system and served as a model for states as well |
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Term
| Why did administrative agencies come into existence? |
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Definition
| because legislative bodies recognized that they could not achieve desired economic and social goals within within the existing governmental structure |
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Term
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Definition
| establishes an administrative agency |
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Term
| administrative agencies regulate individual and business decision making by exercising legislatively delegated... |
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Definition
| rule-making, investigative, and adjudicative powers |
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Term
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Definition
| used to establish and implement polices that assist an agency in accomplishing its statutorily established objectives |
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Term
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Definition
| is used to explain an agency's interpretation of an ambiguous statute, or its understanding of the menacing of an important term that Congress has neglected to define. |
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Term
| notice and comment procedures |
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Definition
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Term
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Definition
- agencies cannot operate without accesss to facts for intelligent regulation and adjudication
-as regulation has expanded and intensified, the agencies' quest for facts has gained momentum |
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Term
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Definition
| - minor aspect of administrative law because judges lack expertise in the very technical and specialized area that is subject to agency regulation |
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Term
| an example is exhaust administrative remedies |
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Definition
| parties must address their complaints to administrative tribunals and explore every possibility for obtaining relief through administrative channels |
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Term
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Definition
| -courts will uphold administrative findings if they are satisfied that the agency has examined the issues, reached its decision within the appropriate standards, and followed the required procedures |
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Term
| What happened to common law? |
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Definition
-most of the states converted them into statutes
-some states continue to recognize common law crimes without statutes, and both federal and state judges are sometimes influenced by the common law when interpreting the meaning of criminal statues |
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Term
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Definition
| offenses that were intrinsically bad |
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Term
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Definition
| acts that were criminal only because of the law |
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Term
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Definition
-felonies are crimes resulting in sentences that are served in state prisons
-misdemeanors are offenses result in in sentences that are served in county jails |
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Term
| What are the basic components of criminal offenses |
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Definition
(1) the wrongful act
(2) the guilty mind
(3) the concurrence of act and intent
(4) in some crimes, causation |
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Term
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Definition
| prosecutors have to offer at least a minimum amount of evidence of guilt as to every fact that must be proven to obtain a conviction |
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Term
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Definition
| the prosecutor pre tents its evidence of guilt |
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Term
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Definition
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Term
| When can the duty to act be imposed |
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Definition
| by statute, by contract, as a result of one's status, or because one has assumed a responsibility |
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Term
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Definition
| ruling that legislatures cannot make the status of "being without visible means of support" or "being ill as a result of narcotic addiction" into a crime |
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Term
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Definition
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Term
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Definition
| required because some people who commit wrongful acts do not have a wrongful state of mind |
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Term
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Definition
| include serious offenses such as rape and arson and less serious offenses such as trespass and simple battery |
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Term
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Definition
| requires proof of the commission of an acts reus, plus a specified level of knowledge or an additional intent, such as the intent to commit a felony |
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Term
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Definition
| results from unconscious risk creation |
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Term
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Definition
-society recognizes the need to protect itself from those people who have taken preliminary steps towards a criminal act
- thus, the law acknowledges solicitation, attempt, and conspiracy |
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Term
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Definition
-a specific-intent crime committed by a person who asks, hires, or encourages another to commit a crime
-does not matter if the offer is accepted
-the acts reus |
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Term
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Definition
| committed by a person who has intent to commit a substantive criminal offense and does an act that tends to corroborate the intent, under circumstances that do not result in the completion of the substantive crime |
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Term
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Definition
committed when 2 or more people combine to commit a criminal act
- the acts reus- is the agreement |
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Term
| affirmative defenses (excuse defenses) and examples |
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Definition
-the defendant admits to having acted unlawfully, but argues that no criminal responsibility should be imposed, given the particular circumstances accompanying the act
-duress, insanity, involuntary intoxication |
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Term
| When is a warrant issued? |
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Definition
| when a court magistrate decides that (1)the evidence supports the belief that (2) probable cause exists to believe that (3) a crime has been committed and that (4)the suspect is the probable culprit |
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Term
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Definition
| people being interrogated while in police custody |
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Term
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Definition
| people must be informed of their rights |
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Term
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Definition
| the Supreme Court ruled that it was reasonable under the Fourth Amendment for police officers to make brief seizures of individuals based on reasonable suspicion, and, in appropriate circumstances, to make limited searches of the individuals for weapons. |
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Term
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Definition
- prosecution is prohibited by the 5th amendment to appeal
-statues may permit the prosecution to appeal when (1) pretrial court orders suppressing evidence, (2) a trial judge's refusal to enter judgment on the jury's guilty verdict and the entry instead of judgment for the defendant (JNOV) (3) where the sentencing judge abused his or her discretion and imposed and "inadequate" sentence, and (4) from a judgment of acquittal, for the sole purpose of clarifying the law |
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Term
| personal property can be classified either as... |
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Definition
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Term
| tangible personal property |
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Definition
| consists of physical objects that are neither realty nor fixtures, such as a book, a boat, or a piece of furniture |
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Term
| intangible personal property |
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Definition
| is personalty that has no physical form (bank account) |
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Term
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Definition
| a category of property between realty and personalty (a dishwasher) |
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Term
| contingent property right |
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Definition
| a property right when some future event must occur for the right to become fully effective |
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Term
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Definition
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Term
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Definition
| a company affixes this symbol to its many products in order to distinguish them from those of competitors |
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Term
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Definition
-a grant of rights to an inventor from the government
-the inventor, or owner of rights, has the exclusive right to make, use, license others to use, and sell an invention for a period of years |
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Term
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Definition
| the exclusive legs right to reproduce, adapt, publish, sell perform, display, or distribute the matter and form of something such as a liternary,musical, or artistic work |
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Term
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Definition
| exists when property is owned by one person |
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Term
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Definition
| when property is held simultaneously by more than one person |
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Term
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Definition
| each joint tenant takes an equal, undivided interest in the ownership of property from the same source and at the same time (i.e. from the same conveyance of the property. such as a son and daughter jointly inheriting a house from their deceased parent) |
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Term
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Definition
| similar to a joint tenancy; however there is no automatic passing of the deceased's rights to the surviving tenants. |
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Term
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Definition
-each spouse is legally entitled to a percentage of what the state defines as this
-Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin |
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Term
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Definition
-refers to ownership rights to property
-when a student purchases a textbook from a bookstore, he or she is purchasing the seller's title to the book |
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Term
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Definition
| refers to the authority of state legislatures to enact laws regulating and restraining private rights and occupations for the promotion of the public health, welfare, safety, and morals |
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Term
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Definition
| state legislatures originally authorized local governments to enact ________________ to promote public health and safety by separating housing districts from incompatible commercial and industrial uses |
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Term
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Definition
| the government can take private property for a public purpose over the objection of a landowner, pursuant to what is called the power of... |
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Term
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Definition
-exists when an owner's use of his or her property unreasonably infringes on other persons' use and enjoyment of their property rights.
-public, private, or both |
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Term
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Definition
-is the amount of interest a person has in land
-some can be inherited |
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Term
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Definition
-can pass his or her interest on to to heirs
-represents the maximum ownership right to land that is permissible by law |
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Term
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Definition
| a person who leases real property has only a possessory interest in land...called... |
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Term
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Definition
| a nonposessory property right in land; it is one person's right to use another person's land |
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Term
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Definition
| a close, direct relationship between a grantor and a grantee |
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Term
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Definition
-requires that property owners to ensure that no one else uses the land without permission, and a person who fails to use or protect his or her land for many years may one day lose title to an adverse possessor
-easement by prescription |
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Term
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Definition
-the most common means of obtaining or conveying ownership rights to personal property
-most involve an exchange of money for the ownership rights to goods |
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Term
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Definition
| a person who manufactures products out of raw materials through physical or mental labor has title to the items |
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Term
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Definition
-a person who acquires previously unowned property has title to the items
-for example a person who catches a fish |
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Term
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Definition
-a person can take title to additions that occur to his or her property because of natural increases
-person who owns animals have right to offspring |
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Term
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Definition
| a person has title that is good against everyone except the original owner |
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Term
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Definition
| involves the blending or intermingling of fungible goods |
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Term
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Definition
-goods of a similar character that may be exchanged or substituted for one another
-for example: wheat, corn, lima beans, or currency |
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Term
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Definition
| a person can acquire property from a deceased person |
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Term
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Definition
| makes a bequest of property |
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