business law 1-8

152 terms by rvelie 

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essentials of business law and the legal environment

stare decisis

principle that courts should apply decided in prior cases in deciding substantially similar cases

administrative law

The branch of law that deals with the establishment and interpretation of regulations adopted by executive branch agencies

adversary system

A judicial system in which the court of law is a neutral arena where two parties argue their differences

appellant

the party who appeals a decision of a lower court

civil law

the law dealing with the rights and duties of individuals among themselves

civil law system

body of law derived from Roman law and based upon comprehensive legislative enactments

common law system

body of law originating in England and derived from judicial decisions

constitution

fundamental law of a government establishing its powers and limitations

criminal law

the law that involves offenses against the entire community

decree

decision of a court of equity

defendant

the person against whom a legal action is brought

definition of law

"a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong"

duty

legal obligation requiring a person to perform or refrain from performing an act

equity

body of law based upon principles distinct from common law and prividing remedies not available at law

executive order

legislation issued by the president or a governor

functions of law

to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change

injunction

decree ordering a party to do or refrain from doing a specified act

inquisitorial system

system in which the judiciary initiates, conducts and decides cases

judicial review

authority of the courts to determing the constituionality of legislative and executive acts

law and justice

are seperate and distinc concepts; justice is the fair, equitable and impartial treatment of competing interests with due regard for the common good

law and morals

are different but overlapping: law provides sanctions while morals do not

maxim

a general legal principle

plaintiff

the person who initiates a civil suit

private law

the law involving relationships among individuals and legal entities

procederal law

rules for enforcing substantive law

prosecute

to bring a criminal proceeding

public law

the law dealing with the relationship between government and individuals

reformation

equitable remedy rewriting a contract to conform with the original intent of the contracting parties

recession

an equitable remedy invalidating a contract

right

legal capacity to require another person to perform or refrain from performing an act

specific performance

decree ordering a party to perform a contractual duty

substantive law

the basic law creating rights and duties

sue

to being a lawsuit in court

treaty

an agreement between or among independent nations

accountability

a corporation is subject to less public accountability than public bodies

act utilitarianism

each seperate act must be assessed according to whether it maximizes pleasure over pain

business ethics

study of what is right and good ina business setting; includes the moral issues that arise from business practices, institutions, and decision making

corporate governance

vast amounts of wealth and power have become concentrated in a small number of corporations, which in turn are controlled by a small group of people, and it is argued that they therefore have a responsibility to undertake projects to benefit society

corporations as moral agents

because a corporation is a statutory entity, it is difficult to resolve whether it should be morally accountable

cost-benefit analysis

quantifies in monetary terms the benefits and costs of alternatives

deontology

holds that actions must be judged by their motives and means as well as their results

distributive justice

stresses equality of opportunity rather than of results

ethical fundamentalism

individuals look to a central authority or set of rules to guide them in ethical decision making

ethical relativism

actions must be judged by what individuals subjectively feel is right or wrong for themselves

ethics

study of what is right or good for human beings

expertise

although a corporation may have a high level of expertise in selling its goods and services, there is absolutely no guarantee that any promotion of social activities will be carried on with the same degree of competence

good person philosophy

holds that individuals seek out and emulate good role models

intuitionism

a rational person possesses inherent powers to assess the correctness of actions

less government regulation

by taking a more proactive role in addressing society's problems, corporations create a climate of trust and respect that has the effect of reducing government regulation

libertarians

stress market outcomes as the basis for distributing society's rewards

long-run profits

corporate involvement in social causes creates goodwill, which simply makes good business sense

profitability

the business of business should be to return as much money as possible to shareholders

regulation of business

governmental regulation is necessary because all teh conditions for perfect competition have not been satisfied and free competition cannot by itself achieve other social goals

rule utilitarianism

supports rules that on balance produce the greatest goods

situational ethics

judging a persons actions by first putting oneself in the actors situation

social egalitarians

believe that society should provide all members with equal amounts of goods and services irrespective of theri relative contributions

social ethical theories

focus on a persons obligations to other members in society and on the individuals rights and obligations

stakeholder model

corporations have fiduciary duty to all of their stakeholders, not just their stockholders

the social contract

because society allows for the creation of corporations and gives them special rights, including a grant of limited liability, corporations owe a responsibility to society

unfairness

whenever corporations engage in social activities, they divert funds rightfully belonging to shareholder and/or employees

utilitarianism

moral actions are those that produce the greatest net pleasure compared with net pain

In Personam Jurisdiction

jurisdiction based upon claims against a person in contrast to jurisdiction over his property

Quasi in rem jurisdiction

jurisdiction over property not based on claims against it

affirm

uphold the lower courts judgement

answer

defendant's pleading in response to the plaintiff's complaint

appeal

determines whether the trial court committed prejudicial error

appeal by right

mandatory review by a higher court

sppellate courts

include one or two levels; the highest courts decisions are final except in those cases reviewed by the U.S. Supreme Court

arbitration

nonjudicial proceeding where a neutral third party selected by disputants renders a binding decision

award

the decision of an arbitrator

complaint

initial pleading by the plaintiff stating his case

compulsory arbitration

arbitration required by statute for specific types of disputes

conciliation

nonbinding process in which a third party acts as an intermediary between the disputing parties

Concurrent federal jurisdiction

authority of federal or state courts to hear the same case

conduct of trial

consists of opening statements by attourneys, direct and cross-examination of witnesses, and closing arguments

consensual arbitration

arbitration voluntarily entered into by the parties

Courts of Appeals

hear appeals from the district courts and review orders of certain adminstrative agencies

default judgment

judgment against a defendante who fails to respond to a complaint

demurrer

motion to dismiss for failure to state a claim

directed verdict

final binding determination on the merits made by the judge after a trial has begun but before the jury renders a verdict

discovery

pretrail exchange of information between opposing parties to a lawsuit

District Courts

trial courts of general jurisdiction that can hear and decide most legal controversies in the federal system

enforcement

plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendant and to garnishment to collect money owed to the defendant by a third party

Exclusive federal jurisdiction

jurisdiction that permits only the federal courts to hear a case

federal question

any case arising under the Constitution, statutes, or treaties of the United States

In Rem Jurisdiction

jurisdiction based on claims against property

Inferior Trial Courts

hear minor criminal cases such as traffic offenses and civil cases involving small amounts of money and conduct preliminary hearings in more serious criminal cases

judgement notwithstanding the verdict

a final binding determination o n the merits made by the judge after and contrary to the jurys verdict

judgment on the pleadings

final binding determination on the merits made by the judge after the pleadings

jurisdiction

authority of a court to hear and decide a case

Jurisdiction over the parties

power of a court to bind the parties to a suit

jury instructions

judge gives the jury the particular rules of law that apply to the case

Med-arb

binding process in which a third party serves first as a mediationr and then as an arbitrator for those issues not resolves through mediation

mediation

nonbinding process in which a thirt party acts as an intermediarty between the disputing parties and proposes solutions for them to consider

Mini-trial

nonbinding process in which attorneys for the disputing parties present evidence to managers of the disputing parties and a neutral third party, and then the managers attempt to negotiate a settlement in consultation with the third party

modify

change the lower court's judgment

motions challenging verdict

include motions for a new trial and a motion for judgment notwithstanding the verdict

negotiation

consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of thirt parties

pleadings

series of responsive,formal,written statements by each side to a lawsuit

pretrail conference

a confereence etween the judge and th attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial

pretrial procedure

process requiring th eparties to disclose what evidence is available to prove the disputed facts; designed to encourage settlement of cases or to make the trial more efficient

remand

send the case back to the lower court

reply

plaintiffs pleading in response to the defendants answer

reverse

set aside the lower courts judgment

small claims courts

inferior trial courts with jurisdiction over civil cases involving a limited dollar amount

special courts

have jurisdiction over cases in a particular area of federal law and include the u.s. court of federal claims, the tax court, the u.s. bankruptcy courts and the u.s. court of appeals for the federal circuit

special trial courts

trial courts, such as probate courts and family courts, which have jurisdiiction over a particular area of state law

subject matter jurisdiction

aurthority of a court to decide a partidular kind of case

summary judgment

binding determinations on the merits made by the judge before trial

summary jury trial

mock trial followed by negotiations

summons

notive given to informa person of a lawsuit against her

the supreme court

the nations highest court whose principal function is to review decisions of the federal courts of appeals and the highest state courts

trial

determines the facts and the outcome of the case

trial courts

have general jurisdiction over civil and crimnal cases

venue

particular geographical place where a court with jurisdiction may hear a case

verdict

formal decision by the jury on questions submitted to it

vior dire

preliminary examination of potential jurors

writ of certiorari

discretionary review by a higher court

commerce power

exclusive power granted by the U.S. Constitution to the federal government to regulate commerce with foreign countries and among the states

commercial speech

expression related to the economic interests of the speaker and his audience

Contract Clause

prohibition against the states' retroactively modifying public and private contracts

corporate political speech

First Amendment protects a corporation's right to speak out on political issues

defamation

injury of a person's reputation by publication of false statements

due process

Fifth and Fourteenth Amendments prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law

eminent domain

the power of a government to take private property for public use upon payment of fair compensation

equal protection

requirement that similarly situated persons be treated similarly by government action

federal pre-emption

first right of the federal government to regulate matters within its powers to the possible exclusion of state regulation

federalism

governing power is divided between the federal government and the states

free speech

First Amendment protects most speech by using a strict scrutiny standard

intermediate test

standard of review applicable to regulation based on gender and legitimacy

judicial review

power of the courts to determine the constitutionality of any legislative or executive act

liberty

ability of individuals to engage in freedom of action and choice regarding their personal lives

procedural due process

requirement that governmental action depriving a person of life, liberty, or property be done through a fair procedure

property

includes real property, personal property, and certain benefits conferred by government

rational relationship test

requirement that regulation bears a rational relationship to a legitimate governmental interest

Separation of powers

allocation of powers among the legislative, executive, and judicial branches of government

State action

actions by governments as opposed to actions taken by private individuals

State regulation of commerce

the Commerce Clause of the U.S. Constitution restricts the states' power to regulate activities if the result obstructs interstate commerce

strict scrutiny test

requirement that regulation be necessary to promote a compelling governmental interest

substantive due process

requirement that governmental action be compatible with individual liberties

Supremacy Clause

federal law takes precedence over conflicting state laws

adjudication

formal methods by which an agency resolves disputes

administrative agency

governmental entity (other than a court or legislature) having authority to affect the rights of private parties

administrative process

entire set of activities engaged in by administrative agencies while carrying out their rulemaking, enforcement, and adjudicative functions

enforcement

process by which agencies determine whether their rules have been violated

interpretative rules

statements issued by an administrative agency indicating its construction of its governing statute

judicial review

acts as a control or check by a court on a particular rule or order of an administrative agency

legislative rules

substantive rules issued by an administrative agency under the authority delegated to it by the legislature

order

a final disposition made by an agency

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