Business Law Exam 1

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Chapters 2, 4, 11, and more

Judical Review

the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch

Jurisdiction

the authority of a court to hear and decide a specific case

REM Jurisdiction

jurisdiction over property located within its boundaries

General Jurisdiction

state court or a federal district court

Limited Jurisdiction

probate court or a bankruptcy court

Legislative branch

makes the laws (Congress)

Executive branch

enforces the laws (President)

Judicial branch

interprets the law (Supreme Court)

Checks and Balances

a system which allows each branch to limit the action of the other 2 branches

Minimal Contact for Jurisdiction of Federal Courts

1. federal question: cause of action based on US Constitution, federal laws, or treaty
2. diversity of citizenship: 1. plaintiff or defendant must be residents of different states and 2. the dollar amount must exceed $20

Concurrent Jurisdiction

when both federal and state courts have the power to hear a case

Exclusive Jurisdiction

when cases can be tried only in federal court or only in state courts

Trial Court

1. testimonies by witnesses
2. evidence is presented
3. dispute is decided by court

Appellate Court

any courts that have the power to appeal, the cases are not retried, no witnesses, no jury, rather a panel of "justices" decide based on questions of law, NOT questions of fact. each attorney gives a brief.

Federal Court System

lowest: US District Courts (trial courts)
middle: US Courts of Appeal
highest: US Supreme Court

In order to bring a case before the USSC a party requests that the Court issue a

writ of certiorari (4/9)

Summons

document used to force defendant to court

Subpoena

require any person to appear or testify

litigation

process of working a lawsuit through the court system

pleadings

the pleadings inform each party's of the others claims and specify the issues involved in the case

the plaintiffs complaint

pleading made by the plaintiff alleging wrongdoing on the part of the defendant; the document that when filed with a court, initiates a lawsuit

defendant judgment

a judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

the defendant's answer

response to plaintiff's complaint (either admits or denies)

counterclaim

a claim made by a defendant in a civil lawsuit against the plaintiff

reply

procedurally, a plaintiff's response to a defendant's answer

affirmative defense

admit to the truth but raise new facts that may result in dismissal of trial

motion of dismiss

requests court to dismiss the case for stated reasons

discovery

includes gaining access to witnesses, documents, records, and other types of evidence

deposition

sworn testimony by a party to the lawsuit or any witness taken under oath before trial

interrogatories

series of written questions for which written answers are prepared and then signed under oath before a trial

requests for other information

-documents -physical exams/mental exams, admit to other things such as "well, you were driving 45 mph"

Voir Dire

the phrase refers to court proceedings where a jury is asked questions

plaintiff's case

1. direct examination
2. cross examination

defendant's case

1.refute plaintiff's case
2. establish a defense
3. assert a counterclaim

end of trial

1. closing agruments
2. judge provides instruction
3. verdict
4. judge issues a judgment

verdict

decision made by jury

negotiation

the simplest form of ADR, a process in which the parties attempt to settle the dispute informally, with or without attorneys

meditation

a neutral 3rd party acts as a mediator ex:divorce

arbitration

the settling of a dispute by submitting to a disinterested 3rd party (other than a court) who renders a decision that is most often legally binding

arbitration clause

a contract that provides that any dispute that arises will be resolved through arbitration rather than the court system

The Commerce Clause

USCON gives Congress the power to regulate interstate commerce

Police Powers

reserves to the states all powers not delegated to the national gov't

The Doormat Clause

the states do not have the power to regulate interstate commerce

The Supremacy Clause

provides that the CONST, laws, and treaties of US are "supreme law of the land"

Due Process

... "no person shall be deprived of life, liberty, or property without due process of law"

Procedural Due Process

1. reasonable notice
2. opportunity to be heard
3. a fair hearing/trial

Substantive Due Process

limits what the gov't may do in its legislative and executive capacities

Eminent Domain Clause

requires the gov't to give just confiscation when they take a person's property

Equal Protection Clause

state cannot deprive a person of unreasonable discrimination

contract

an agreement that can be enforced in court; formed by 2 or more competent parties who agree for consideration, to perform or to refrain from performing some legal act now or in the future.

requirements of a valid contract

1. agreement
2. consideration
3. contractual capacity
4. legality

voidable contract

is a valid contract but can be avoided at the option of one or both of the parties (minors, under fraudulent conditions, under the influence)

unenforceable contracts

contract that cannot be enforced

void contracts

no contract at all

even if all the elements of a valid contract are present, a contract may be unenforceable if the following are not met

1. genuineness of assent or voluntary consent 2.form-that is, the contract must be in whatever form the law requires

agreement

an essential element for contract formation
"meeting of the minds"
usually broken down into 2 events: an offer and an acceptance

offer

a promise or commitment to do or refrain from doing some specified act in the future

intention

what a reasonable person interprets as a proposal

3 elements are necessary for an offer to be effective

1. serious intention
2. the terms of the offer must be reasonably certain, or definite
3. resulting in the offeree's knowledge of the offer

termination

revocation, counteroffer, rejection

revocation

the offeror's act of withdrawing an offer as long as its not accepted

counteroffer

occurs when offeree rejects the original offer and simultaneously makes a new offer

mirror image rule

any variation of offer is treated as a counteroffer.

mailbox rule

under this rule, if the authorized mode of communication is the mail, then an acceptance becomes valid when it is dispatched (placed in the control of the US Postal Service) not when it is received by the offeror

acceptance

voluntary act by offeree that shows assent (agreement) to the terms of an offer

preexisting duty role

promise to do something you're legally obligated to do; is not a contract

consideration

legal value given in bargain for legal exchange for performance or promise of exchange

contractual capacity

legal ability required for facing a contract

ratification

confirmation of prior agreement that was not legally binding

sole proprietorship

1.not incorporated
2.owned by 1 person
3. no legal requirements
4. license required when a person is engaging in dangerous activity
5. unlimited liability
6. no tax-income and expenses

partnership

1. 2 or more persons
2. common ownership in business
3. sharing of profits and losses
4. right to manage business

entity concept

partnership[p treated as a separate entity

limited partnership

1.allows each partner to restrict their personal liability to amount of their business investment
2. @ least 1 participant must accept general partnership status
3. does not participate in management decisions

limited partnership RQ

name, purpose, profit sharing, duration, have to have limited partnership in name

general partnership

1. 2 or more carrying out business purpose
2. equal rights and responsibility in management
3. not taxed; pass through to partners, who include gain and individual tax returns at a lower rate

limited liability partnerships

1. corporation or indiviual tax
2. not responsible for wrongdoings of other partners or for debt/obligations

corporation

1. legal entity
2. limited liability
3. perpetual existence
4. ease of transfer of ownership

common stock

true ownership

common shareholders

right to the remaining profit after debts and dividends

stocks

equity security

corporation has to pay ______ on bonds?

interest

bond indenture

bond has no specific asset at security

secured bond

specific property as calateral

board of directors

1. declare dividends
2. hire, fire, and pay officers
3. set corp. policy
4. set financial structure
5. indicate fundamental changes

business judgment rule

1. person exercise reasonable care
2. act in good faith
3. act in best interest of corporation

common shareholders rights

1. right to vote
2. preemptive right
3. dividends
4. right to transfer shares

preemptive right

allows shareholders to remain a percentage of corporation

c corporation

corporation that pays tax on income it makes during the year

s corporation

does not pay income tax flows through to shareholders

requirements to be an s corporation

1. no more than 75 shares
2. no more than 25% passive income
3. 1 class of stock

watered stock

stock issued for overvalued property or services of less than par value

piercing the corporate veil

1. inadequately capitalized
2. not following corporate formalities
3. corporation used for wrongful conduct

stockholders

owners of a corporation

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