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CPCU 530 Chapter 1
Introduction to U.S. Law
| Term | Definition |
|---|---|
| Civil-Law System | comprehensive codes of written laws, or statutes, that apply to all legal questions. Rely on scholarly interpretations of their codes/constitutions rather than on court decisions |
| Common-Law System | body of law derived from court decisions as opposed to statutes or constitutions. |
| Doctrine of Stare Decisis | the principle that lower courts must follow precedents set by higher courts. "To stand by things decided." Courts follow earlier court decisions when the same issues arise again in lawsuits. |
| Synthesis | a process to solve new legal problem in a current case |
| Threshold cases | situations for which the courts can find no prior case or previous law that directly applies |
| Supreme Court's impact on law | the views of the court's justices have a profound influence on the law, particularly when justices decide threshold questions. |
| Equity | fairness, or a body of principles constituting what is fair and right. |
| Evolution of Common Law | it reflects the evolution of society's values and attitudes. Courts may overrule prior decisions only for sound judicial reasons. Changed through landmark decisions, historic court rulings. |
| Three most common ways to classify US law | criminal or civil law; subject matter; substantive or procedural law |
| Criminal law | The branch of the law that imposes penalties for wrongs against society covering offenses ranging from crimes such as murder to minor offenses. |
| Felony | major crime involving long-term punishment. |
| Misdemeanor | minor crime punishable by a fine or short-term imprisonment. |
| Summary offenses | crimes that are neither felonies nor misdemeanors under state law; result in fines but not imprisonment. |
| Civil law | legal matters that are not governed by criminal law. Protects rights and provides remedies for breaches of duties owned to others. |
| Burden of proof | a party to a lawsuit has the duty to prove a charge or an allegation in civil law |
| Substantive law | a classification of law that creates, defines, and regulates parties' rights, duties and powers. Crimes, contracts, torts, agency and property law. |
| Procedural law | a classification of law that prescribes the steps, or processes, for enforcing the rights and duties defined by substantive law. Involves procedures or mechanics, of court processes and the methods used to enforce substantive law. |
| Five sources of law | Constitution; Legislative Branch; Judicial Branch; Executive Branch; Administrative Agencies |
| Constitution | establishes fundamental rights and creates the other branches of government |
| Legislative Branch | Congress and state legislatures which enact statutes |
| Judicial Branch | Courts which decides cases |
| Executive Branch | President and State Governors which enforces law |
| Administrative Agencies | part of the Executive Branch which makes & enforce regulations. Federal & State Legislators delegate responsibilities to implement legislation; to develop expertise in every area regulated; settle disputes arising from legislation, rules & regulations. |
| State Constitution | a state can grant broader rights to its citizens than those that federal law or the US Constitution grants as long as the state does not violate the federal Constitution. |
| US Constitution relevant to insurance | delegation of powers to Congress; Commerce Clause; Due Process Clause; Equal Protection Clause |
| Equal Protection Clause | a part of the 14th Amendment prohibiting state laws that discriminate unfairly or arbitrarily, and requiring equal treatment to all persons under like circumstances and conditions. |
| Bicameral | two chambers - Senate and House of Representatives |
| Unicameral | one chamber - single house - legislatures |
| National Association of Insurance Commissioner (NAIC) | an association of insurance commissioners from the 50 US states, the DC and 5 US territories and possessions, who purpose is to coordinate insurance regulation activities among the various state insurance departments. |
| Original jurisdiction | the power of a court in which cases are initiated to hear those cases. Cases involving admiralty/maritime law; lawsuits @ land grants; legal minimum amount of damages between citizens of different states |
| Diversity jurisdiction | the authority of federal district courts to hear cases involving parties from different states that involve amounts in controversy over a legal minimum. |
| Writ of Certiorari | an appellate courts order directing a lower court to deliver its record in a case for appellate review |
| Probate Courts | primarily hear estate cases |
| Municipal Courts | limited amount of money cases; small claims |
| Conflicts of law | a body of law that resolves questions when state's laws conflict |
| Administrative law | the statutory laws that grant power to administrative agencies to act the body of law that is created by administrative agencies themselves |
| Plaintiff | files the complaint |
| Defendant | part against the plaintiff filed a complaint |
| Allegation | a claim made in the complaint by the plaintiff, specifying what the plaintiff expects to prove to obtain a judgment against the defendant. |
| Complaint | the allegations made by a plaintiff in a lawsuit |
| Pleading | a formal written statement of the facts and claims of each party to a lawsuit. |
| Cause of Action | a plaintiff's legal grounds to sue a defendant |
| Answer | a document filed in court by a defendant responding to a plaintiff's complaint and explaining why the plaintiff should not win the case |
| Counterclaim | a complaint brought by the defendant against the plaintiff |
| Motion | A formal request for the court to take a particular action |
| Motion to Dismiss | a request that a court terminate an action because of settlement, voluntary withdrawal, or procedural defect |
| Motion for Summary Judgment | a pretrial request asking the court to enter a judgment when no material facts are in dispute |
| Discovery | a pretrial exchange of all relevant information between the plaintiff and defendant |
| Deposition | a pretrial discovery tool involving oral examination of a witness to produce a written verbatim record |
| Interrogatories | specific written questions or requests raised by one party to a lawsuit that the opposing party must answer in writing |
| Subpoena (ad testificandum) | a legal order to a witness to appear at a certain place and time to testify or to produce documents. (command to testify) |
| Direct examination | questioning one's own witness during a legal proceeding |
| Cross-examination | questioning an opposing party during a legal proceeding to bring out information favorable to the questioner's own position or to challenge the witness's testimony |
| Relevance | a quality of evidence that suggests the evidence is more or less likely to be true |
| Materially | a quality of evidence that tends to establish a particular element of the claim that has legal significance |
| Competence | a quality of evidence that suggests the source is reliable and the evidence is adequate to justify admission in court |
| Hearsay Rule | the rule of evidence that prevents the admission of out-of-court statements not made under oath by a person who is unavailable to testify |
| General Verdict | a kind of verdict that entails a complete finding and a single conclusion by a jury on all issues presented |
| Special Verdict | a kind of verdict reached by a jury that makes findings of fact by answering specific questions posed by the judge. The judge then applies the law to the facts as the jury has found them. |
| Res judicata | a doctrine that bars parties to a lawsuit on which final judgment has been rendered from bringing a second lawsuit on the same claim or on related transactions. |
| Jury | group of people who hear and consider the evidence in a case and decide what facts are true |
| Judge can take a case away from a jury | issuing a directed verdict telling the jury how to decide the case; declaring a mistrial; or declaring a nonsuit if the plaintiff has failed to present a sufficient case or complied with a court order |
| Appeal | is a request to a higher court for a review of the case. |
| Appellant | the losing party in a court case who appeals the case to a higher court |
| Appellee | nonappealing party; the winner of the lawsuit |
| Actions of an Appellate Court | affirm the trial court outcome, reverse it or send the case back (remand it) to the trial court for a new trial. |
| Alternative Dispute Resolution (ADR) | Procedures to help settle disputes without litigation, including arbitration, mediation and negotiation |
| Arbitration | (frequently used for settling insurance disputes) taking a dispute to an impartial 3rd party for a decision the parties agree will be final and binding. |
| Mediation | an alternative dispute resolution (ADR) method by which disputing parties use a neutral outside party to examine the issues and develop a mutually agreeable settlement. It is nonbinding. |
| Negotiation | parties to a dispute discuss all issues and determine a mutually satisfactory resolution. |
| Mini-trials | a neutral party can act as a mediator or issue an advisory opinion after the presentation of evidence and arguments |
| Summary jury trials | are brief mock trials before juries. The parties can accept the jury's advisory verdict, or the verdict can provide the basis for further negotiations toward settlement. |
| Legal procedures of Administrative Agencies | rulemaking function; adjudication function; investigative powers; judicial review |
| Two primary purposes of Administrative Agencies | rulemaking and adjudication |
| Rulemaking | is the process by which agencies promulgate rules to implement legislative policies |
| Adjudication | is the process by which agencies decide cases and settle disputes |
| Agencies' Rulemaking Function | Legislative rules; Interpretative rules; Procedure rules |
| Legislative Rule | a type of substantive administrative agency rule that comes from a statutory delegation of authority and that has the same force as a law enacted by Congress or a legislature |
| Interpretative Rule | a type of administrative agency rule that interprets statutes, providing guidance for agency staff or regulated parties, but that lacks the force and effect of law and therefore is not binding on individuals |
| Procedural Rule | a type of administrative agency rule that prescribes procedures for agency operations, legislative rulemaking and adjudication proceedings |
| Administrative Procedure Act (APA) | prescribes the procedure for administrative agency rulemaking at the federal level |
| Model State Administrative Procedure Act (MSAPA) | requires agencies to adhere to three basic steps: publish a notice of intent to adopt a regulation; provide opportunity for public comment; publish the final regulation |
| Actions allowed if proposed regulation is controversial after hearings | adopt the originally proposed rule; make minimal or extensive changes; or nullify the proposed rule |
| Adjudicatory function notice | stmt of the hearing time, place & nature; stmt of hearing's legal authority & jurisdiction; reference to the particular statute or rule involved; short clear stmt of matters at issues |
| Duces tecum | production of documents or records ("bring things with you") |
| Violations of constitutional rights | 4th Amendment protection against unreasonable searches & seizures; 5th Amendment protection against self-incrimination |
| Standing to sue | a party's right to sue, as one who has suffered or will suffer a legal wrong or another adverse effect from an action |
| Final order | an administrative agency's final conclusion or disposition of any material private right of a party, terminating an agency proceeding |
| Exhaustion of Administrative Remedies | the completion of all possible administrative procedures and appeals in a case; required before a party can appeal an agency action to a court |
| 2 requirements have to be met for a Judicial review | agency has issued a final order in the case; Exhaustion of administrative remedies has been satisfied |
| Judicial court can set aside agency action when | action was arbitrary, capricious, abuse of discretion, unlawful; unconstitutional; violated statutory authority; violated agency procedural rules or result of illegal procedure; unsupportable by substantial evidence in the record |
Created by:
CHahnCPCU
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