Philosophy Of Law: Midterm 1

34 cards

First midterm for philosophy of law. Probably the worst course i've taken. 


 
  
Created Nov 12, 2010
by
vellanora

 

 
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1
Meaning: Ratio Decedendi
 
The part of a decision that is binding.The part that is binding is the reason for the decision. 

2
Meaning: Obiter Dicta
 
Everything in a decision that is not binding. Things said "by the way."
3
Difference between "a law" and "the law."
 
A law is one rule.The law is the entire body of state-enforced or legal rules.
4
Common Law
 
Often described as judge-made law, because it is a set of principles that judges, over time,...
5
Meaning: Stare Decisis
 
Latin term meaning the decision stands. The system developed from common law and case...
6
Difference between statute law and common law.
 
Statute law is enforced by the government. Statute law and common law are interpreted...
7
Majority Decision
 
The decision of the court that determines the outcome of the case. 
8
Concurring Opinion
 
Judges concur, or agree, with the result. But, they may add their own reasoning as to how they...
9
Dissenting Opinion
 
Disagrees with both the reasons and outcome of the majority decision. The dissent does...
10
Tort Law
 
The private law of actionable wrongs.
Tort law requires fault in order to impose liability
11
"Actionable" definition
 
Recognized at law as something you can sue for. 
12
Difference in standard of proof at civil law and criminal law.
 
Criminal case: standard of proof has to prove its case beyond a reasonable doubt. Civil...
13
"Per se" meaning
 
In itself, or intrinsically
14
Intentional Torts
 
Are "actionable per se."Examples: Trespass, slander, assault, battery, unlawful confinement,...
15
Unintentional Torts
 
The fault or wrongfulness of conduct is based not on what defender knew, but what he ought...
16
Elements of Negligence 
 
1. Duty of Care2. Standard of Care3. Breach of Standard of Care4. Causation5. Damages
17
Meaning: Loss Spreading 
 
U.S. ModelSociety can bare the cost of a certain injury
18
Meaning: Loss Fixing
 
Canadian ModelMeaning "finding where the fault lies."- Identify or locate liability; it sticks...
19
Pecuniary Loss
 
Monetary Lossie. What are the value of my lost wages?
20
Non-pecuniary Loss
 
Non-monetary LossIncludes pain and suffering
21
Factors of "standard of care"
 
- How likely it is that someone will be injured- The severity of the injury- The social utility;...
22
Rescue Principles (4)
 
- No duty to rescue (unless currently working a position it is your duty). - If started...
23
Meaning: Nunc pro tunc
 
"Let's just presume it was properly filed." 
24
Meaning: A priori
 
Derived prior to experience- The law is not a set of a priori principles. 
25
Insurance Argument 
 
Plaintiff is in best position to know how much money they're going to lose; they know how to...
26
Loss Spreading Argument
 
The loss should be spread out amongst everyone.
27
Contractual Allocation of Risk
 
Focuses on the ability of person who stand to suffer economic loss due to damage to the property...
28
Collateral Benefits
 
Judge does not care where money comes from (insurance, charity welfare), it ought not to reduce...
29
Non-pecuniary loss: Conceptual Approach
 
Treats each faculty as a proprietary asset with an objective value. Bot or tariff system...
30
Non-pecuniary loss: Personal Approach
 
Values the injury in terms of the loss of human happiness by each particular victim.
31
Non-pecuniary loss: Functional Approach
 
Accepts the personal premise of the personal approach, plus attempts to compensate to provide...
32
When is economic loss recoverable:
 
- if there is knowledge of the person likely to suffer.- If there is foreseeability of nature...
33
Proximity
 
- Connection between defendant's conduct and plaintiff's loss. - Controls unlimited liability-...
34
2 factors determining gravity/magnitude of risk:
 
Seriousness of injury. Likelihood of injury. 

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