Quizlet (20) - Voc. PDF

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Intro to Paralegal Studies Midterm Study online at quizlet.com/_4hsegs 1.

Abuse of Process

When a defendant uses litigation devices for improper purposes; usually involves one party using litigation tactics to place undue pressure on the other party.

2.

Actual Malice (Express Malice)

Acting with knowing or deliberate falsity or reckless disregard of the truth.

3.

Administrative Courts

Created under the grant of legislative authority in Article I, Section 8 USC; they perform administrative and quasilegislative roles as well as serve as quasi-judicial bodies.

12.

Bailment

EX: Giving your car to a mechanic to fix 13.

Basic Types of Torts

a) Intentional Torts b) Negligence c) Strict Liability

14.

Battery

consummation of an unlawful assault by making contact with the other person or the causing of a harmful or offensive contact upon another; simply involves contact.

15.

Bigamy

Having multiple spouses; prohibited in all US jurisdictions.

16.

Breach of Duty of Care (in Negligence)

Failure on the part of the tortfeasor to adhere to a reasonable standard of care.

17.

Breach of Warranty

(Tort/contract law hybrid) in which a seller/manufacturer claims/warranties that a product is of a certain level or quality.

18.

But-For Test

But for A's actions, B would not have suffered injury; legal rationale (related to proximate cause).

EX: Us Claims Court, Court of International Trade, US Tax Court Affirmative Action

Policies designed to create greater diversity for historically underrepresented groups.

5.

American Law Reports

ALR; contain detailed overview articles called annotations that cite cases all across the United States.

6.

Analogistic Form of Reasoning

By analogy; analysis of comparative likeness and differences.

Annotated Codes

All of the official enactments updated every 3 months as well as annotations to case opinions and other legal materials that elaborate on the meaning of these statutory provisions.

4.

7.

A delivery of goods or personal property by one person to another in trust for the execution of a special service beneficial either to the bailor or to the bailee or both; includes express or implied contractual obligation.

8.

Annotated Codes

Statutory law placed topically into the official code or collection of statutory law.

19.

Case of First Impression

A dispute involving a new factual situation never previously before the courts that adds new precedent when decided.

9.

Appellate Courts

Courts that do not conduct fact-finding procedures as trial courts do; they consider only questions of law in dispute and exercise review over trial courts performing the functions of error correction and law development; there are both intermediate appellate courts and courts of last resort.

20.

Causation (in Negligence)

The defendant's negligent action (or inaction) caused the harm to the victim.

21.

Charge of Discrimination

Complaint filed with the EEOC that an employee has suffered some type of discrimination in the workplace.

22.

Citation

Shorthand reference to legal authority.

23.

Civil Union

Relationship between two persons providing many of the benefits of marriage (some states used it as a substitute for gay marriage).

24.

Code Law

States drawing legal heritage from the ancient Roman code law tradition; these states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin

25.

Collective Bargaining Agreement

Contract between management and employee's union that regulates terms and conditions of employment.

10.

Appropriation (Misappropriation)

Using another's name, likeness, or personality for advertising, a commercial purpose, or similar use without the permission of the person.

11.

Assault

Intentionally causing an apprehension or appreciation of harmful or offensive contact; requires apprehension/appreciation of impending contact (knowing someone is trying to hurt you).

26.

Common Law

The body of judge-made law that has no source other than judicial decisions ; it originated in Medieval England. [Textbook Definition]

27.

Common-Law Marriage

28.

29.

37.

Contracts

Some states recognize that couples living together for a period of years (usually seven) and that hold themselves out as married are regarded as having marriage rights and duties.

Private agreements that create legally binding obligations between parties and can be enforced in the courts if they meet the legal requirements provided in the common law or statutory law; create, modify, or destroy a legal relationship.

38.

Contributory Negligence

Common Law States

The original 13 colonies and those states that derived their legal traditions from the original colonies.

Act or omission amounting to lack of ordinary care on the part of the complaining party that, along with defendant's negligence, is the proximate cause of injury.

39.

Conversion

Comparative Negligence

Measures in terms of percentages of fault on each side so that the trier of fact compares the negligence of the plaintiff and defendant to determine the appropriate degree of fault.

When one receives possession of personal property belonging to another and permanently deprives the owner of the rightful use of the property; basis for civil legal action; Civil law equivalent to "theft;" taking someone else's property.

40.

Copyright

Exclusive statutory rights to exercise control over copying and other exploitation of works for a specific period of time.

41.

Counteroffer

Changes to the agreement made before agreeing by the offeree.

42.

Covenant

An agreement, convention, or promise of two or more parties, by deed in writing, signed, and delivered, by which either of the parties pledges himself or herself to do something or not do something or stipulates as the truth of certain facts concerning the estate.

43.

Covenant Marriage

A couple freely enters into authorized premarital counseling and agrees that grounds for divorce will be more limiting for them; the party agrees that marriage is a lifelong bond between them (not a lot of states recognize it).

44.

Damages (in Negligence)

The victim suffered actual, compensable harm.

45.

Deep Pockets

Wealth; a plaintiff needs to seek compensation from a tortfeasor with ____ ______.

46.

Defamation

Communication of a false statement of fact that harms someone's reputation.

47.

Defenses to Intentional Torts

a) Consent b) Self-defense (reasonable force) c) Necessity

48.

Delegated Powers

Those powers given to the national government in Article I Section 8 of the Constitution (and in several amendments).

Compensatory Damages/Actual Damages

Those damages that compensate the plaintiff for the harm suffered as a result of the defendant's negligent conduct, as opposed to punitive damage.

31.

Concurrent Jurisdiction

Areas where both state and federal courts have jurisdiction to hear the same types of disputes.

32.

Concurrent Powers

Shared powers given to the national government by not denied to the states.

30.

EX: taxing power; creation of courts/laws; regulations to promote public health and safety 33.

Concurring Opinion

One that agrees with the final result on a majority opinion but not necessarily the reasoning.

34.

Conflicts of Law

When difference sources of law come into conflict with each other, the courts must decide which law prevails; the general principle of determination is that the most fundamental law prevails.

35.

Contract

An agreement between two or more persons that creates an obligation to do or not to do a particular thing. Essentials: -Competent parties -An offer -An acceptance -Mutual obligation

36.

Contract Action

Legal action to recover damages or to enforce legal obligations resulting from a contract.

EX: create a national court system, taxing and spending power; power to regulate commerce; power to establish uniform rules for naturalization, patents and copyrights, and bankruptcies; control over DC

49.

Descriptive Word Indexes

Indexes that enable a researcher to find the appropriate terms used by the publication.

62.

Duty of Care (in Negligence)

Legal duty to conform your conduct to a required (and reasonable) standard of care.

50.

Design Defects

An inherent flaw in the construction of the product.

63.

51.

Dicta (Obiter Dicta)

Statements in opinions that go beyond the facts and specific legal issues before the court; generalizations that may not accurately reflect the narrow kernel of law decided in the case.

Duty of Good Faith and Fair Dealing

52.

Digests

The entire body of published case law is indexed in these publications; arranged by topic or key numbers.

Courts in a few states apply an exception to the employment-at-will doctrine based on this standard of good faith, but most states do not allow this exception; certain bad conduct by an employer may cross the line and become so unfair that it violates the basic principles of good faith and fair dealing.

64.

Disabilities

a) A physical or mental impairment that substantially limits one or more major life activities of such individual b) A record of such an impairment c) Being regarded as having such an impairment

Easement

53.

A right to use over the property of another, including rights of way, rights concerning flowing waters, and other interests.

65.

Elements of Common-Law Marriage

1) Capacity to enter into a marriagetype relationship 2) Present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships 3) Public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation (own property together, share bank accounts, take the same last name)

54.

Disparate Impact Claims

Apparently neutral employment practices that have an adverse impact on a particular group of individuals based on race or sex.

55.

Disparate Treatment

When an employer intentionally treats an employee substantially worse than other similarly situated employees not in protected class or category.

56.

Dissenting Opinion

Disagrees with the result of the majority opinion.

66.

Diversity Jurisdiction

Civil legal actions involving disputes between citizens of different states where the sum in question is greater than $75,000; created over concern for local favoritism.

Elements of Negligence

a) Duty of Care b) Breach of Duty of Care c) Causation b) Damages

67.

Eminent Domain

The power to take private property for public use by a government entity; authorized to exercise functions of a public character.

68.

Documents that may create a legally Employee Handbook/Manual binding contract if the employer agrees to be bound by its provisions.

69.

Employment-AtWill Doctrine

Either the employer or the employee can terminate the employment relationship at will.

70.

Equity

Refers to a remedy seeking a specific performance order of the court such as an injunction or cease and desist order.

71.

Erie Doctrine

Federal practice of civil diversity cases applying the substantive law in the state where the case is filed; 1939 US Supreme Court tried to reduce potential for conflict of law arising out of overlapping jurisdiction.

57.

Judicial Act of 1789 58.

Divorce

Process of formally ending a marriage.

59.

Divorce Decree

The formal legal document in which a marriage is dissolved and the parties' legal responsibilities are explained.

60.

Doctrine of SelfRestraint

Criteria used to screen out cases the federal courts will not hear; there must be a "case or controversy;" the party bringing the suit must have standing (or a person stake in the litigation); they will not issue advisory opinions nor decide "political," hypothetical, or most questions that no longer present controversy because the matter has been settled.

61.

Due Care

The degree of care that persons of ordinary prudence would exercise under similar circumstances with respect to their own property or the property of others placed in their custody.

Erie Railroad Co. v. Tompkins, 304 US 64 (1928)

72.

Estate in Fee Simple

Maximum real property rights to which an owner is entitled, including all rights to sell, transfer, and pass on to heirs.

73.

Exclusive Jurisdiction

Areas of federal court jurisdiction that are denied to the states.

74.

Exclusive National Power

Those powers given to the national government but denied to the states. EX: foreign policy; coining money; and regulation of interstate and foreign commerce (Article I Section 10)

Express Warranties

Seller expressly represents that a product is of a certain quality.

76.

Factual Cause

"Cause in fact;" the defendant's conduct actually caused the plaintiff's harm.

77.

Failure to Warn

The manufacturer should warn the consumer of certain dangers associated with the product even if the dangers come from misuse by the consumer.

75.

78.

79.

Fair Use

False Imprisonment

Defense for the reproduction of particular works such as criticism, news reporting, teaching, scholarship, and research. Unjustifiable intentional confinement of another against his or her will (most states have "shopkeeper's privilege" to protect merchants that act reasonably).

80.

False Light

Involves publishing information that places a person in a ____ _____ in a way that would be highly offensive to a reasonable person.

81.

Federal Circuit

One of two court of appeals in DC; has jurisdiction to hear appeals from all 94 district courts in cases against the federal government; also has jurisdiction over appeals from admin agencies and US Claims Court and Court of International Trade.

82.

Federal Crime code

Title 18 USC/A; defines a broad variety of federal crimes.

83.

Federal District Courts

The basic trial courts in the federal system; courts of original jurisdiction; 94 districts.

84.

Federalism

Divided sovereignty, or division of authority of government between the national and state governments.

85.

Federal Judges

Appointed by president with approval by the senate; serve for life; removal by impeachment in the House/conviction in the Senate; required to reside in the district they sit; over 600 of them.

86.

Federal Question Jurisdiction

The basic jurisdiction of the federal courts to hear and decide all cases in law and equity arising under the US Constitution, the laws of the United States, and treaties; the federal court will entertain cases that involve a substantial claim founded directly upon federal law. Article III Section 2

87.

Federal Suppliment

Reporter featuring opinions on issues and facts by federal judges.

88.

Fiduciary Duty

One party reposes trust in another, to provide competent service to the people they help.

89.

Final Judgement

Action of the trial process ending the litigation on the merits, where nothing more remains to do but to execute the judgement.

90.

Finder of Lost Property

One who has good title against anyone except the true owner; the finder has a duty to make reasonable efforts to locate the true owner.

91.

Fixture

An object in the nature of personal property that has been so annexed to the realty that it is regarded as part of the land.

92.

Form Books

Sources that provide model forms in various legal fields such as American Jurisprudence Legal Forms.

93.

FourFifths/80% Rule

Used to determine whether an employment practice has disparate impact on a protected group; if the protected group is selected at less than 80% for the prefered group, then the employment practice is questionable.

94.

Fraud

Intentional false representation, which is a serious crime.

95.

General Jurisdiction

Authority to decide questions of both state and federal law in the course of litigation and not limited to a restricted list of delegated authority; the state courts are restricted only by the very narrow range of cases that fall within the exclusive jurisdiction of the federal courts.

96.

General Types of Intentional Torts Against a Person

a) Assault b) Battery c) False Imprisonment d) Intentional Infliction of Emotional Distress

97.

Gifts

A voluntary transfer of property to another made gratuitously and without consideration, requiring capacity, intention, and completed delivery by donor and acceptance by donee.

98.

Good Samaritan Statute

Law that generally provides some protection for rescuers who attempt to help people in harm except for instances of extreme negligence.

99.

Headnotes

The main points of law found in the body of the judicial opinion.

100.

Holding

Legal precedent drawn from the opinion of the court on a specific legal question.

101.

Hostile Workplace Environment Claims

Situations in which an employee has to endure severe and pervasive sexual harassment that negatively impacts the employee's working environment.

102.

Implied Warrantie...