20518921
Description
Flashcards by Shacondala Heffner, updated more than 1 year ago
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Created by Shacondala Heffner
almost 5 years ago
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| Question | Answer |
| At Bar | a phrase meaning “before this court,” or currently being handled in court. How does this precedent system work? A judge looks at what other courts have previously decided in similar situations and then decides how close the resemblance is between the previous case and the case at bar. If the facts in the old case and the pending case are similar enough, the court might rely on precedent and apply the same rules and reasoning that were applied in the prior case. If the cases aren’t similar enough, the court could decide to use some, but not all, of the prior precedent. In this instance, the court will modify the precedential rule and apply the modified rule to the specific case before it. After this case is published, it, too, becomes precedent that courts will look to when they come across a similar situation. Courts can also order a case to be “unpublished.” An unpublished case is not reported in the official reporter for the court and cannot be cited as precedent. |
| binding and nonbinding | Precedent from higher courts is binding on lower courts in the same jurisdiction. So, a lower court must follow a higher court, or its rulings will be overturned by the higher court. A court can use nonbinding precedent (also called persuasive authority) to decide cases. Nonbinding precedent comes from courts without direct authority over other courts. |
| stare decisis | Another term used to describe the common-law method. a Latin term meaning “let the decision stand.” Not all decisions stand forever, of course. Society changes, and legal rules that once worked well might not apply as time goes by. Judges in a common-law system, though, are reluctant to change the law without good reason. It is important to society that similar cases are decided in similar manners. This consistency lets people know what has happened to people who performed a certain act and what will most likely happen to them if they perform a similar act. When courts feel there’s good reason to change old law, they usually take great pains to explain their reasoning. |
| PLESSY V. FERGUSON | One famous example of a court explaining why it changed its mind is Brown v. Board of Education, the Supreme Court decision that ordered racial integration in public schools. The Supreme Court had said in 1896, in a case called Plessy v. Ferguson, that a law requiring separation of the races in train cars didn’t violate the Constitution— thus endorsing the principle of “separate but equal.” But in Brown, the Court rejected the “separate but equal” doctrine and overruled Plessy—explaining that separate facilities for the races were “inherently unequal.” |
| civil law system | In a civillaw system, comprehensive and detailed legal codes are the main source of law. Courts in a civil-law system interpret the codes, but that interpretation isn’t necessarily given weight by another court in a later proceeding. One state, Louisiana, uses a civil-law system for its state law. Federal courts sitting in Louisiana, though, use a common-law approach. |
| administrative law | Federal and state agencies are often empowered to make rules (regulations) affecting the area they regulate. Administrative law has the force of law to those who are subject to the agencies’ regulatory authority. The statute that created an agency defines the areas over which the agency has authority. Agencies aren’t permitted to regulate outside the scope of their authority—the areas over which the legislature has given the agency permission to regulate. Administrative law can be inconsistent with case law, but it can also sometimes change case law by amending the rules or regulations that a court has interpreted in a prior case, so that the rules can no longer be interpreted the way the court did in that case. |
| Agency regulations are challenged on 1 of 3 grounds. | 1. Those unhappy with a regulation can argue that the regulation exceeds the scope of the authority given to the agency by the legislature. 2. Opponents can argue that the regulation adopted by the agency isn’t consistent with the statute. 3. Regulations can be challenged as unconstitutional. |
| Municipal law | is law enacted by a local government. Building codes, health codes, and local traffic laws are municipal laws, which are also called ordinances in some places. Municipal laws can’t conflict with constitutional law, federal and state statutory law, or administrative law. Like administrative law, though, municipal law can change case law |
| Name five countries whose law influenced American law. | Any five of the following: England, France, Germany, Native American tribes, Roman Empire/ancient Italy, Scandinavia (Finland, Norway, and Sweden), Spain |
| Which has more importance in our legal system, a state constitution or municipal law? | State constitution |
| What are the first ten amendments to the U.S. Constitution called? | Bill of Rights |
| If the language of a statute is unclear, what do courts use to interpret the law? | Legislative history |
| Name three items found in a legislative history. | Any three of the following: the original bill as introduced, amendments made to the bill, committee hearings on the bill, witness statements, committee reports |
| Name the doctrine that prevents states from passing laws that conflict with federal statutes. | Preemption |
| Court opinions are also referred to as _______. | case law |
| Lawyers perform one of three basic tasks on behalf of clients: | counseling, litigating, and negotiating. These tasks cover a lot of ground and often overlap. Preparing a lengthy memo for a client on several legal points is counseling, as is a five-minute telephone call on occasion. Litigating can be arguing motions before a judge, writing briefs to file in court, or questioning witnesses. Negotiating can take place as part of a multimillion-dollar merger or as part of discussions to settle an employee grievance. |
| casebook method | Law schools use what’s known as the casebook method of teaching, which means that parts of cases illustrating a particular point of law are gathered together in a book. Law students read the cases to try to understand the law in a certain area. In class, professors question students on their understanding of the reading. This query-oriented method of instruction is known as the Socratic method, named for the Greek philosopher Socrates. |
| California, Vermont, Virginia, and Washington | Four states currently allow people to sit for the bar exam even though they haven’t graduated from an accredited law school |
| barristers | Lawyers in England who represent clients in court and other lawyers are called solicitors. |
| Law firms | are usually organized as partnerships or limited liability corporations, which include partners, or senior attorneys, who own the law firm. In addition to its partners, law firms usually employ associate attorneys (associates), who are younger, less-experienced lawyers. Firms also employ lawyers as counsel, which can mean several things. Counsel can be a lawyer who has practiced for decades and wants to keep working, but not carry a full caseload. Counsel can also be a younger, though experienced lawyer, whom the firm is evaluating for a few years to see if a partnership makes sense for both the firm and the lawyer. |
| Working for Corporations | Companies usually include one senior lawyer (often a vice-president of the company) as its general counsel. Other lawyers who work for the company are called deputy, assistant, or associate general counsels. These lawyers, often experts in a particular area of the law, advise the corporation solely on legal matters in their area of expertise. Alternatively, a lawyer might be assigned to one of the company’s business units, and therefore be expected to advise on all the legal issues of the business unit. |
| How many years of post-secondary school must lawyers generally complete before sitting for the bar examination? | Seven |
| After graduating from law school, what must a lawyer do to be able to practice law? | Pass the bar exam |
| Most lawyers work in what kind of setting? | Law firm |
| What’s the most common basis for lawyers to bill clients for legal work? | By the hour |
| What federal agency has the most attorneys and legal assistants on staff? | Department of Justice |
| Lawyers in the United States usually choose to focus their practices on either _______ or _______. | Litigation, counseling |
| Cite checking | g is looking at all the citations in a document to verify that they’re accurate and follow the proper form. (You’ll recall that citations are references to legal authorities used to back up a lawyer’s arguments in a case.) |
| Name six possible job functions of a legal assistant. | Any six of the following: Maintaining case files and master client files Creating file systems for cases Coordinating reviews of documents for litigation and due diligence Reviewing documents for relevance Interviewing witnesses Drafting basic legal documents Performing legal research Cite checking legal briefs and memoranda Digesting and indexing transcripts Preparing exhibits Perform administrative tasks |
| Name two characteristics of a good legal assistant. | Any two of the following: organized responsible reliable intelligent resourceful self-motivated able to approach problems calmly, rationally, and creatively |
| attorney-client confidentiality | means that communications between a lawyer and a client can’t be disclosed to anyone by the lawyer. In other words, lawyers can’t tell anyone what a client has told them in confidence. It also means that lawyers can’t tell anyone what they’ve told the client in confidence |
| attorney-client privilege | Attorney-client confidentiality is also known as attorney-client privilege. This term comes from the fact that attorneys must claim a privilege, on the client’s behalf, against testifying if asked about a communication with a client. If a valid privilege against testifying is asserted, the witness can’t be compelled by a court to answer the question. Note that the privilege actually belongs to the client. The client is the only one who can waive that privilege and allow the privileged information to become known. If the attorney talks about privileged information without the client’s permission, the attorney is liable for malpractice. |
| work-product privilege doctrine | Lawyers can also keep confidential their strategy and research for their clients under the work-product privilege doctrine. Work-product refers to any materials prepared by an attorney, or at the direction of an attorney. The work-product privilege is only for materials prepared “in anticipation of litigation,” according to the Supreme Court. This means that there must be a reasonable belief that a lawsuit is imminent for the work-product privilege to apply. Under the work-product privilege, statements given by potential third-party witnesses to attorneys in a lawsuit don’t have to be disclosed. Work-product privilege covers witness interviews conducted by legal assistants, among other things. Without the work-product privilege, statements of third-party witnesses would have to be given to opposing counsel, if requested. The work-product privilege also protects other notes, memoranda, and drafts that contain the “thoughts and mental impressions” of an attorney. |
| If an attorney does any of the following, even inadvertently, attorney client privilege is waived: | Produce a document containing a confidential attorney-client communication to the opposing side during litigation Tell a third-party witness’ lawyer something that the client told the lawyer confidentially Tell opposing counsel, during settlement negotiations, something that the lawyer’s client had revealed in confidence Allow the client to answer a question during a deposition about a confidential attorney-client communication |
| A client and her fiancé come to a lawyer’s office to discuss some legal problems of the client’s new company. Is the conversation covered under attorney-client confidentiality? Why or why not? | The conversation isn’t covered because the fiancé was present; the presence of a third party destroys the intent to keep the communication between the lawyer and client confidential. |
| What are two prerequisites for a confidential attorney-client communication? | Attorney-client relationship; Intent that the communication is confidential |
| What are two exceptions to attorney-client confidentiality? | The lawyer knows the client is going to commit a crime that endangers someone; the lawyer must defend against a later lawsuit by the client against the attorney |
| What information about the cases on which you’re working can you share with your spouse? | Information that is publicly known |
| If, as a legal assistant, you write a memo about your interview of a potential witness, what’s the name of the privilege that applies to keeping that memo secret? | Work-product privilege |
| Name two types of documents that are covered by this privilege. | Any two of the following: notes of conversations, notes from research, drafts of legal documents, memos of interviews, research memos |
| For attorney-client confidentiality to apply to statements made to a legal assistant, the legal assistant must be _______. | doing work at the direction of an attorney |
| adversary system | The American legal system is an adversary system, one in which the parties involved in a dispute are adverse to (against) each other. In other words, each case has a winner and a loser. In an adversary system such as ours, courts rely on parties to provide all the information needed to decide the case before them. |
| hierarchy | Courts in the United States have a hierarchy, or order of importance. Trial courts, the lowest rung on the judicial ladder, are the most numerous. Trial courts are where lawsuits begin. Next in importance are appellate courts. Those courts can issue rulings that tell the trial courts, also known as lower courts, how certain legal issues must be decided. Generally, the final layer of review, often called a supreme court, has the final decision on a case, and its rulings are binding on all courts below it |
| courts of original jurisdiction | Lawsuits begin in trial courts, which are known as courts of original jurisdiction. On the federal level, the trial courts are called district courts. Every state includes at least one federal district court. There are 94 district courts in the federal system. Original jurisdiction is the power of a court to try a case and decide it, as opposed to appellate jurisdiction, which is the power to hear an appeal of a lower court’s decision. |
| writ of certiorari | Parties wanting review of an appellate court decision must submit a petition for writ of certiorari. Sometimes called a “cert. petition,” it gives arguments for why the Supreme Court should hear the case. So, a certiorari petition explains why the case is important enough for the Supreme Court to take it. Some valid reasons include the following: There’s a “circuit split,” meaning at least two circuit courts have decided the same question of law differently. The case presents an important constitutional issue that hasn’t been previously decided by the Supreme Court. The issue is one that will have a wide effect, rather than being limited to the parties involved. |
| General jurisdiction | means that all kinds of claims can be heard in that court |
| What document must a party file to ask the U.S. Supreme Court to review its case? | Petition for writ of certiorari |
| What is the court of last resort called in most U.S. court systems? | Supreme Court |
| What is original jurisdiction? | The authority to hear a case at the trial level |
| In New York State, what is the court of original jurisdiction called? | New York Supreme Court |
| Who presides over agency courts? | Administrative law judges |
| Who decides the kinds of cases that agency courts can hear? | Congress or a state legislature |
| All but one U.S. Circuit Court has appellate jurisdiction over _______. | a specific geographic area |
| Federal Jurisdiction | Jurisdiction works differently in federal courts and state courts. The U.S. Supreme Court has interpreted the Constitution to say that federal courts are courts of limited jurisdiction. Limited jurisdiction (also called subject matter jurisdiction) means that a court can hear only certain types of cases. For a suit to be heard in federal court, there must be an issue involving the U.S. Constitution, or a federal statute or case law that says you’re allowed to bring your claim in federal court. In other words, the court must have jurisdiction over the subject matter of the case. As a general rule, federal courts can’t hear cases dealing solely with state law issues. However, under federal law, federal courts can hear disputes between parties who reside in different states if the case is worth more than $75,000. This exception is called diversity jurisdiction. The only time federal courts can review the judgments of state courts on appeal is when constitutional issues are involved in the case. State courts, on the other hand, can never review federal court decisions. |
| State Jurisdiction | Unlike federal courts, state courts have broad general jurisdiction. This means that state courts have authority to hear all kinds of cases. Among other issues, state courts typically have jurisdiction over: Family law matters, such as divorces and wills Criminal matters, such as murder and theft Contracts Real estate |
| Concurrent Jurisdiction | With concurrent jurisdiction, state courts can decide questions of law and rights under the U.S. Constitution and federal statutes, in many circumstances. Indeed, unless a federal law states otherwise, state courts can hear most federal law issues. Congress has restricted some types of cases to federal courts—such as patent cases, federal labor law, and bankruptcy matters. If concurrent jurisdiction exists for a particular case, it’s up to the parties to decide in which court they want to litigate. |
| Removal | Although a plaintiff brings a case in state court, if the defendant is from a different state, he or she might want the case transferred to federal court. The provision that allows a case to be transferred from state court to federal court is called removal. A case can be removed to federal court only if diversity jurisdiction applies. Remember that to use diversity jurisdiction, the parties can’t live in the same state. Even if the parties live in different states, the case must be worth more than $75,000. |
| Judges | State judges are appointed by state or local politicians, or must run for election. Federal judges, on the other hand, are appointed by the president and confirmed by the Senate. Once a federal judge is appointed, he or she serves for life, unless they resign, die or are impeached. These judges known as Article III judges, because their authority is derived from Article III of the U.S. Constitution. The Constitution states that they shall serve during a period of “good conduct” which is interpreted as being for life. Impeachment can occur if a judge is convicted of a crime or found to be mentally incompetent. Federal magistrates and bankruptcy judges are not appointed for life. |
| Pendent Jurisdiction | Federal courts are allowed to hear claims that usually can be heard only in state courts, under a theory called pendent jurisdiction. “Pendent” comes from the Latin word pendere, which means “to hang.” Under pendent jurisdiction, in a case before a federal court, that court may hear a state law claim over which it wouldn’t normally have jurisdiction if that claim arises out of the same facts as the federal claim. Normally, the federal court would throw out (refuse to hear) the state law claims, because the federal courts don’t have jurisdiction over state law issues. But if the state law claims grow out of the same set of events that generated the federal claims, the federal court can exercise pendent jurisdiction. In other words, the state law claims “hang,” or are pendent, from the federal law claims. |
| Case or Controversy | All federal courts and most state courts hear only cases with an active, real dispute between two or more parties. Parties can’t pretend to have a dispute, and there must be a reasonable chance that the court’s decision will change the situation between the parties. This requirement is called a case or controversy. The case or controversy requirement prevents federal courts from giving advisory opinions because they’re opinions about theoretical, not real, disputes. Seven states, though, do allow advisory opinions: Colorado, Florida, Maine, Massachusetts, New Hampshire, Rhode Island, and South Dakota. |
| Mootness and Ripeness | Another jurisdictional requirement, closely related to the rule prohibiting advisory opinions, is the mootness doctrine. A case is moot when the parties are no longer disputing something, even if they have in the past. So, if the parties settle a case, the case becomes moot. The flip side of mootness is ripeness. A case must be ripe before courts can decide it: there must be a real controversy, not just a likely one. So, for example, a real estate developer can’t sue the local zoning board because it’s considering adopting a new zoning law the developer thinks is illegal. If the developer tried to sue while the board was still considering a new law, the court would throw out the case because it wasn’t ripe—there wasn’t an actual case or controversy yet. However, the moment the law is passed, the developer can say there are particular parts of the new law that adversely affect him or her. At that point, the case becomes ripe for decision, because there’s an actual controversy between two adverse parties. The purpose of the ripeness doctrine is to prevent courts from getting |
| Mootness and Ripeness cont.... | involved in abstract disagreements. Having a real disagreement, not just an abstract one, gives the court a more detailed, therefore better, record upon which to decide the case. |
| Standing | The plaintiff involved in a case must have standing, which means that the plaintiff must demonstrate that he or she has suffered or will imminently suffer an injury. Standing asks if the plaintiff is the proper party to bring the matter before the court for adjudication. For standing to exist, there must be an actual or imminent injury traceable to the defendant’s conduct. Also, a favorable decision must result in righting of the wrong. Requiring standing prevents ideological lawsuits and meddling by parties who aren’t part of a real dispute. |
| Venue and Personal Jurisdiction | After deciding the correct jurisdiction for a particular case, lawyers still must determine the correct venue, or judicial district, in which to file. Venue comes from the Latin word “place.” So, in addition to being filed in the proper jurisdiction, cases must be filed in the proper venue, or place. Whether the venue is correct depends on several factors, including Where the defendant resides Whether the defendant owns property in a particular region Whether the defendant has some other type of contact with the venue—e.g., being in a car accident in the state A plaintiff can sue only in venues where the court has personal jurisdiction over the defendant. Personal jurisdiction means that the court has the right to require the defendant to appear before it. It’s sometimes referred to by the Latin legal term, in personam jurisdiction. |
| Some of the criteria courts use to assess personal jurisdiction include whether the: | Defendant regularly visits the state to conduct business there, including business on the Internet Defendant owns real property in the state Defendant maintains a business presence in the state by having an office, a telephone, or employees there Events giving rise to the lawsuit occurred in the state— such as signing or negotiating a contract in the state when the lawsuit is about that same contract A defendant may also consent to the court's personal jurisdiction |
| Name the highest court of appeals in the United States. | Supreme Court |
| What kind of court has jurisdiction over divorces? | State trial court or state family law court |
| Name the two types of jurisdiction that allow federal courts to hear state law claims. | Pendent jurisdiction and diversity jurisdiction |
| Do state courts have the power to review federal court decisions? | No - State courts can never review federal court decisions. Even if a federal court decides a state law issue, as they frequently do, the state court doesn’t have the power to review that decision. |
| What are the two prerequisites to invoking diversity jurisdiction? | The parties live in different states; the case is worth more than $75,000. |
| List three reasons that plaintiffs often try to sue in their own judicial districts. | Cost, convenience, forum shopping |
| If the parties to a lawsuit settle their case, the court no longer has jurisdiction because the case is _______. | moot |
| A special-interest group can’t file a lawsuit to prevent Congress from passing a law because they lack _______. | standing |
| The ability of state courts to hear federal law cases comes from _______. | concurrent jurisdiction |
| The correct judicial district in which to file a lawsuit is called _______. | venue |
| Legal reasoning | g is logical thinking applied to legal principles. Together, logic and legal concepts are used to arrive at a conclusion about how the law applies to a specific set of facts |
| judicial opinion | A judicial opinion is a judge’s statement of the decision he or she has reached in a case. Parts of a Judicial Opinion Every judicial opinion has several common elements, including: Caption of the case, which lists the plaintiff and defendant (e.g., Gene Smith v. Ken Jones) Docket number—the number assigned by the clerk’s office to the case when it’s filed Name of the judge or judges who decided the case Facts of the case Issue(s) presented—what the court is being asked to decide Holding of the case—the ultimate decision of the court Procedural posture—who prevailed in the case and at what point in the proceedings Date of the case |
| The Caption | In official court reports and opinions, the caption lists all the parties to a lawsuit. The name commonly referred to in a case often isn’t the full name of the case as you’d find it in the official caption. For example, the full caption for the famous case usually called Brown v. Board of Education is Brown v. Board of Education of Topeka, Shawnee County, Kansas. ***When you’re drawing up documents for filing in a lawsuit, you must make sure that all the parties are listed by their full names in the caption*** |
| The Docket Number | This number, assigned by the clerk, contains a great deal of information, if you know how to interpret it. Let’s say that your case is assigned docket number 99-CIV-1072 NLJ (SXC). The first part, “99,” tells you the case was filed in 1999. “CIV” indicates the case is in the civil docket, rather than, for example, the criminal docket. The next part, “1072,” tells you that your case was the 1,072nd case filed in the civil division in that court for 1999. . Many federal courts, in particular, also have additional letters after the case number. In our example, “NLJ” represents the initials for the judge assigned to the case, Nathaniel L. Jones. The next set of letters, “SXC,” are the initials for the magistrate judge assigned to the case, Shirley X. Cashen. A magistrate judge is used in federal courts to oversee the discovery process. Magistrate judges decide procedural issues in cases before they go to trial. |
| The Judge | You’ll frequently see judges’ names indicated like this: Reid, J. Warren, C.J. Don’t make the mistake of many first-year law students and think that those letters are the initials for the judge’s first name. The “J.” stands for judge or justice; the “C.J.” for chief judge or justice. Some states have presiding judges, in which case you will see “P.J.” after the judge’s last name. |
| Procedural Posture | Procedural posture tells who prevailed in the case and at what point in the proceedings. Understanding the procedural posture is important because it tells you whether the court had no facts, some undisputed facts, or a number of disputed facts before it when deciding the legal issues. Generally, lawyers like to cite cases in their court briefs that have a similar procedural posture to the case they’re arguing. |
| The Facts | In the world of law, there are two types of facts: general and legally relevant. General facts tell us the basic story of the case. For example, general facts could be that the plaintiff is 32 years old, has been granted three patents for designing innovative office products, and lives in Chicago. Legally relevant facts directly support or contradict a particular legal theory. Legally relevant facts are a subset of the general facts. A fact isn’t necessarily legally relevant in every situation. For example, if a patent infringement case is filed by the plaintiff described above, where he or she lives isn’t legally relevant to deciding if a patent is infringed. But if the defendant in that same case files a motion to move the case to another court 500 miles away from the plaintiff, the fact of where the plaintiff lives becomes legally relevant to that motion. |
| The Issue Presented | The issue presented is the legal question the court has been asked to address. In well-written judicial opinions, the issue presented is quite clearly identified. In many courts, the style is to say, “The issue before us is whether. . . .” |
| The Holding (conclusion of law) | When discussing a judicial opinion as a whole, a holding is the overall legal reasoning by the court about who wins, who loses, and why. In that sense, there’s only one holding for every case. However, to arrive at the ultimate decision about who wins and loses, the court might need to make several separate holdings of law, often referred to as secondary or subsidiary holdings. These subsidiary holdings are usually a required logical step in getting to the ultimate conclusion of law. |
| The Finding (conclusion of fact) | A holding is a conclusion of law, while a finding is a conclusion of fact. Remember this legal adage: courts find what the facts are and hold what the law is. |
| case-brief | A case-brief is a way of setting out the important parts of a case in a format that’s easy to read and analyze. Your case-brief should include: The name of the case The date it was decided The legally relevant facts The issue presented The holding A short statement of the reasoning |
| Where in an opinion do you find the names of the parties? | In the caption |
| Name three things the docket number of a case tells you. | The year filed, the type of case, how many cases were filed before it |
| How long does a defendant have to file a motion to dismiss? | 20 days, unless the parties agree to an extension |
| What are three results that the overall holding in a case tells you? | Who wins, who loses, and why |
| Facts that help prove a specific legal point are _______ facts. | legally relevant |
| A finding relates to _______ ; a holding relates to _______. | facts, law |
| Substantive and Procedural Due Process | The U.S. Constitution guarantees all citizens two types of due process: substantive and procedural. Substantive due process is a guarantee that a law isn’t unreasonable, arbitrary, or capricious. Procedural due process guarantees that the procedures used for administering the law are fair and that notice will be given before the government deprives a citizen of life, liberty, or property. The due process guarantees are found in the Fifth and Fourteenth Amendments to the Constitution. Procedural due process requires the state and federal government to follow fair procedures in civil legal matters, criminal legal matters, and any other situation where the government is trying to deprive an individual of life, liberty, or property. |
| Substantive due process guards against laws that are_______, _______, or _______. | unreasonable, arbitrary, capricious |
| Which amendment to the Constitution applies the due process guarantees to the states? | Fourteenth Amendment |
| What are the three things procedural due process protects from government deprivation without fair procedure? | Life, liberty, and property |
| Where are the basic liberties in our society found? | Bill of Rights |
| Name two basic liberties the Supreme Court has said exist, that aren’t directly stated in the Constitution. | Right to privacy, freedom of association |
| Conflicts of Law | If two states’ laws could potentially apply to a single dispute, there’s a conflict of law. Conflict of law issues usually surface in tort, or civil injury, cases. A tort is a civil wrong or injury. Elements of a tort are that there must be a legal duty owed by one person to another, that duty must be broken, and harm done as a result. Note that in tort law the term injury isn’t confined to personal injury (physical wounds). There are two theories for deciding which state’s law applies. The one used by a majority of states is called the interest analysis system. The other theory, used in fewer than 20 states, is called the vested rights system. Under the interest analysis theory, courts look at the policies being promoted by the different states’ laws to decide which state’s law should apply. |
| Conflicts of Law cont.... | The vested rights theory works differently. The most important factor in a vested rights analysis is where the event at issue took place. Under the vested rights theory, the rights surrounding an event vest, or take effect, at the place where the event occurs. |
| Domesticate (Enforcing Judgments in Different States) | Domesticate means that Ms. B must file a lawsuit in State K, using the judgment from State J as the basis of the claim. Under the full faith and credit clause, State K must enforce the judgment from State J. Some states have a judgment registration procedure for enforcing out-of-state judgments. This procedure can be used instead of having to file an entirely new lawsuit, to enforce a judgment. The full faith and credit clause applies only to state court judgments. If a plaintiff is in federal court, he or she needs only to register the judgment in the appropriate federal court district. It will be enforced there without any further proceedings. |
| Comity (Enforcing Judgments from Foreign Countries) | Judgments from foreign countries are sometimes enforced in U.S. courts under a doctrine called comity. Comity means courtesy, or respect, for judgments of foreign courts. Under the comity doctrine, a state or federal court voluntarily chooses to accept a foreign court judgment. The United States is bound by treaties to honor and enforce the judgments of many different foreign countries. If a treaty requires a foreign country’s judgment to be enforced, the judgment must be enforced in both federal and state courts. No choice can be made as to whether to enforce a judgment if a treaty requires enforcement. Therefore, comity isn’t invoked when courts must enforce certain foreign judgments. |
| What minimum constitutional standard must state court judgments meet to be entitled to full faith and credit? | Due process |
| Which conflicts of law doctrine looks only at where events leading to the lawsuit took place? | Vested rights theory |
| Conflicts of law arise whenever more than one ______’s laws potentially apply. | state |
| _______ doesn’t exist if a treaty requires a court to enforce a foreign country’s judgment. | Comity |
| 3 legal doctrines that could prevent a plaintiff with a winning case from getting a judgment in his or her favor: | statute of limitations, res judicata, and immunity |
| statute of limitations | A statute of limitations is a law stating that after a certain period of time, a plaintiff can no longer bring a claim, even if it has merit. In other words, the claim is no longer legally enforceable. Most claims have a statute of limitations somewhere between two years and four years. States have general statutes of limitations for various broad types of claims, such as contract and tort. In addition, individual statutes often contain their own limitations. This is particularly true with federal statutes |
| Res Judicata | Just as the government is barred from trying a defendant twice for the same crime, plaintiffs can’t bring the same lawsuit twice, under the doctrine of res judicata. Res judicata is a legal doctrine that prevents parties from relitigating the same lawsuit once it has been through all possible appeals. The Latin phrase res judicata means “the thing is decided.” Both plaintiffs and defendants are barred, under this principle, from relitigating a case that has been litigated before. For this doctrine to apply, the same parties and the same legal issues must be involved. There must be some type of final decision in a case before res judicata applies. If a plaintiff decides to voluntarily drop her lawsuit before trial, she could still bring that same claim later on. But once a judgment has been rendered, the parties are barred from bringing the same claims again. |
| Immunity | Immunity is a doctrine that prevents certain classes of defendants from being sued. If a defendant is allowed to claim immunity, that means that no matter how meritorious the claim against him or her, the suit won’t be allowed to proceed. There are several kinds of immunity. One of the most well known is governmental, or sovereign, immunity. Under this immunity doctrine, citizens aren’t permitted to sue the government unless the government allows the suit. |
| Statutes of limitations penalize __________ who “sleep on their rights.” | plaintiffs |
| The ____________ for murder is longer than for sex discrimination. | statute of limitations |
| __________ prevents one party from relitigating the same lawsuit against the same party more than once. | Res judicata |
| You (can, can't) __________ sue the government. | can - Federal and state governments permit certain kinds of lawsuits against them. |
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