Law and Society

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promise

An assertion that something either will or will not happen in the future.

promisor

A person who makes a promise.

promisee

A person to whom a promise is made.

contract

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

objective theory of contracts

A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions.

offeror

A person who makes an offer.

offeree

A person to whom an offer is made.

bilateral contract

A type of contract that arises when a promise is given in exchange for a return promise.

unilateral contract

A contract that results when an offer can be accepted only by the offeree's performance.

formal contract

A contract that by law requires a specific form for its validity. Negotiable instruments and letters of credit are examples of formal contracts.

informal contract

A contract that does not require a specified form or formality to be valid.

express contract

A contract in which the terms of the agreement are stated in words, oral or written.

implied-in-fact contract

A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract).

executed contract

A contract that has been completely performed by both parties.

executory contract

A contract that has not yet been fully performed.

valid contract

A contract that results when the elements necessary for contract formation (agreement, consideration, contractual capacity, and legal purpose) are present.

voidable contract

A contract that may be legally avoided (cancelled or annulled) at the option of one or both of the parties.

unenforceable contract

A valid contract rendered unenforceable by some statute or law.

void contract

A contract having no legal force or binding effect.

agreement

A meeting of two or more minds in regard to the terms of a contract, usually broken down into two events: an offer and an acceptance.

offer

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

revocation

In contract law, the withdrawal of an offer by an offeror; unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability.

counteroffer

An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.

mirror image rule

A common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed.

promissory estoppel

A doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding is justice will be better served by the enforcement of the promise.

estop

To bar, impede, or preclude someone from doing something.

acceptance

A voluntary act by the offeree that shows assent, or agreement, to the terms of an offer; may consist of words or conduct.

mailbox rule

A rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an official mailbox), if mail is expressly or impliedly an authorized means of communication of acceptance of the offer.

consideration

Generally, the value given in return for a promise. The consideration must be something of legally sufficient value, and there must be a bargained-for exchange.

covenant not to compete

A contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specified geographic area. Courts commonly enforce such covenants if they are reasonable in terms of time and geographic area and are part of, or supplemental to, a contract for the sale of a business.

unconscionable

A term used to describe a contract or clause that is void on the basis of public policy because one party, as a result of disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominant party.

adhesion contract

A "standard-form" contract, such as that between a large retailer and a consumer, in which the dominant party dictates the terms.

exculpatory clause

A provision that releases a contractual party from liability in the event of monetary

cyber crime

A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.

crime

A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment-or in some cases, death.

beyond a reasonable doubt

The standard of proof used in criminal cases. If there is any reasonable doubt that a criminal defendant committed the crime with which he or she has been charged, then the verdict must be "not guilty."

actus reus

A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.

mens rea

Mental state, or intent. A wrongful mental state is as necessary as a wrongful act to establish criminal liability. What constitutes a mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life.

robbery

The act of forcefully and unlawfully taking cash, personal property, or any other article of value from another. Force or intimidation is usually necessary for an act of theft to be considered robbery.

burglary

The act of unlawfully entering or breaking into a building with the intent to commit a felony. (Some states statutes expand this to include the intent to commit any crime.)

larceny

The wrongful taking and carrying away of another person's personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property's value.

arson

The intentional burning of a building owned by another. Some statutes have expanded this to include and real property regardless of ownership and the destruction of property by other means - for example, by explosion.

forgery

The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.

white-collar crime

Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.

embezzlement

The fraudulent appropriation of funds or other property by a person to whom the funds or property has been entrusted.

insider trading

The purchase or sale of securities on the basis of inside information (information that has not been made available to the public.

money laundering

Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise-in effect, "laundering" the "dirty money."

felony

A crime - such as arson, murder, rape, or robbery - that carries the most severe sanctions, ranging from on year in a state or federal prison to the death penalty.

misdemeanor

A lesser crime than a felony, punishable by a fine or incarceration in jail for up to one year.

petty offense

In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation.

consent

Voluntary agreement to a proposition or an act of another; a concurrence of wills.

duress

Unlawful pressure brought to bear on a person, causing the person to perform an act that she or he would not otherwise perform.

self-defense

The legally recognized privilege to protect oneself or one's property against injury by another. The privilege of self-defense usually applies only to acts that are reasonably necessary to protect oneself, one's property, or another person.

entrapment

In criminal law, a defense in which the defendant claims that he or she was induced by a public official - usually an undercover agent or police officer - to commit a crime that he or she would otherwise not have committed.

self-incrimination

The giving of testimony that may subject the testifier to criminal prosecution. The Fifth Amendment to the Constitution protects against self-incrimination by providing that no person "shall be compelled in any criminal case to be a witness against himself."

plea bargaining

The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant's pleading guilty to a lesser offense in return for a lighter sentence.

search warrant

An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

probable cause

Reasonable grounds for believing that a person should be arrested or searched.

double jeopardy

A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the Constitution.

exclusionary rule

In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's constitutional rights guaranteed by the Fourth, Fifth and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.

indictment

A charge by a grand jury that a named person has committed a crime.

grand jury

A group of citizens called to decide, after hearing the state's evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial ought to be held.

information

A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a government prosecutor.

computer crime

Any act that is directed against computers and computer parts, that uses computers as instruments of crime, or that involves computers and constitutes abuse.

identity theft

The act of stealing another's identifying information - such as a name, date of birth, or Social Security number - and using that information to access the victim's financial resources.

hacker

A person who uses one computer to break into another. Professional computer programmers refer to such persons as "crackers."

cyberterrorist

A hacker whose purpose is to exploit a target computer for a serious impact, such as corrupting a program to sabotage a business.

strict liability

Liability regardless of fault. Strict liability may be imposed in cases involving abnormally dangerous activities, dangerous animals, or defective products.

product liability

The legal liability of manufacturers, sellers, and lessors of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods.

unreasonably dangerous product

In product liability law, a product that is defective to the point of threatening a consumer's health and safety. A product will be considered unreasonably dangerous if it is dangerous beyond the expectation of the ordinary consumer or if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

market-share liability

Liability shared among all firms that manufactured and distributed a particular product during a certain period of time in proportion to the firms' respective shares of the market. Only some jurisdictions apply this theory and only when the true source of the harmful product is unidentifiable.

statute of repose

Basically, a statute of limitations that is not dependent on the happening of a cause of action. Statutes of repose generally begin to run at an earlier date and run for a longer period of time than statutes of limitations.

Federal form of government

A system of government in which the states form a union and the sovereign power is divided between the central government and the member states.

Checks and balances

The principle under which the powers of the national government are divided among three separate branches - the executive, legislative, and judicial branches - each of which exercises a check on the actions of the others.

Commerce clause

The provision in Article I, Section 8, of the US Constitution that gives Congress the power to regulate interstate commerce.

Police powers

Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.

Supremacy clause

The clause in Article VI of the Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Bill of Rights

The first ten amendments to the US Constitution.

Symbolic speech

Nonverbal expressions of beliefs. Symbolic speech, which includes gestures, movements , and articles of clothing, is given substantial protection by the courts.

Filtering software

A computer program that is designed to block access to certain Web sites based on their content. The software blocks the retrieval of a site whose URL or key words are on a list within the program.

Meta tag

A key word in a document that can serve as an index reference to the document. On the Web, search engines return results based, in part, on the tags in Web documents.

Establishment clause

The provision in the First Amendment to the Constitution that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another.

Free exercise clause

The provision in the First Amendment to the Constitution that prohibits the government from interfering with people's religion practices or forms of worship.

Search warrant

An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.

Due process clause

The provisions in the 5th and 14th Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.

Equal protection clause

The provision in the 14th Amendment to the Constitution that guarantees that no state will "deny to any person within its jurisdiction the equal protection of the laws." This clause mandates that the state governments must treat similarly situated individuals in a similar manner.

Judicial 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.

Long arm statute

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply.

Probate court

A state court of limited jurisdiction that conducts proceeding relating to the settlement of a deceased person's estate.

Bankruptcy court

A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.

Federal question

A question that pertains to the US Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Diversity of Citizenship

Under Article III, Section 2, of the US Constitution, a basis for federal district court jurisdiction over a lawsuit between: Citizens of different states, A foreign country and citizens of a state or of different states or, Citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal district court can take jurisdiction in such cases.

Concurrent jurisdiction

Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in a federal or a state court.

Exclusive jurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court.

Docket

The list of cases entered on a court's calendar and thus scheduled to be heard by the court.

Venue

The geographic district in which a legal action is tried and from which the jury is selected.

Standing to sue

The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.

Justiciable controversy

A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.

Small claims court

A special court in which parties may litigate small claims (such as $5,000 or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties.

Question of fact

In a lawsuit, an issue that involves not only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (by the judge if there is no jury).

Question of law

In a lawsuit, an issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.

Writ of certiorari

A writ from a higher court asking the lower court for the record of a case.

Rule of four

A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.

Litigation

The process of resolving a dispute through the court system.

Pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

Complaint

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

Summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

Default 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.

Answer

Procedurally, a defendant's response to the plaintiff's complaint.

Counterclaim

A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

Reply

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

Motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case.

Motion for judgment on the pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

Motion for summary judgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Deposition

The testimony of a party to a lawsuit or a witness taken under oath before a trial.

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

E-evidence

Evidence that consists of computer-generated or electronically recorded information, including email, voicemail, spreadsheets, word-processing documents, and other data.

Voir dire

Old French phrase meaning "to speak the truth." In legal language, the phrase refers to the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors.

Motion for a directed verdict

In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support his or her claim.

Award

In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator.

Motion for judgment n.o.v.

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict against him of her was unreasonable and erroneous.

Motion for a new trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Brief

A formal legal document prepared by a party's attorney (in answer to the appellant's brief) and submitted by an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.

Alternative dispute resolution (ADR)

The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.

Negotiation

A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding.

Arbitration clause

A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

Summary jury trials (SJT)

A method of settling disputes, used in many federal courts, in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.

Online dispute resolution (ODR)

The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet.

Ethics

Moral principles and values applied to social behavior

Business ethics

Ethics in a business context; a consensus as to what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting.

Ethical reasoning

A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand.

Categorical imperative

A concept developed by the philosopher Immanuel Kent as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.

Principle of rights

The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). Those who adhere to this "rights theory" believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of various groups. These groups include the firm's owners, its employees, the consumers of its products or services, its suppliers, the community in which it does business, and society as a whole.

Utilitarianism

An approach to ethical reasoning that evaluates behavior in light of the consequences of that behavior for those who will be affected by it, rather than on the basis of any absolute ethical or moral values. In utilitarian reasoning, a "good" decision is one that results in the greatest good for the greatest number of people affected by the decision.

Cost-benefit analysis

A decision-making technique that involves weighing the costs of a given action against the benefits of that action.

Corporate social responsibility

The idea that corporations can and should act ethically and be accountable to society for their actions.

Moral minimum

The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law.

Backdating

The practice of marking a document with a date that precedes the actual date. Persons who backdate stock options are picking a date when the stock was trading at a lower price than the date of the options grant.

Law

A body of enforceable rules governing relationships among individuals and between individuals and their society.

Jurisprudence

The science or philosophy of law.

Natural law

The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.

Positive law

The body of conventional, or written, law of a particular point in time.

Legal positivism

A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government. Laws must be obeyed, even if they are unjust, to prevent anarchy.

Historical school

A school of legal thought that emphasizes the evolutionary process of law and looks to the past to discover what the principles of contemporary law should be.

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