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103 terms

Business Law

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Sources of Law
Constitution (Supremacy Clause) (both federal and state)
Codified Law (Statutes and Ordinances) (federal, state and local)
Administrative Law (rules adopted by agencies
Case Law - based on rulings of previous cases
Common law
(civil law) a law established by following earlier judicial decisions
Stare Decicis
similar cases should be decided consistently
Differences between Criminal vs. Civil
Civil is preponderance of evidence, Criminal has to be almost certain (85%)
Personal Jurisdiction
Refers to the Court's power or authority over the parties to the litigation, or the "person" involved (in personam jurisdiction)
Resident
actual residents of a state (includes corporations)
long arm statute
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "sufficient minimum contacts" with that state for the statute to apply.
Property
(in rem jurisdiction) jurisdiction to hear a case because of jurisdiction over the property or the lawsuit
(Quasi in rem jurisdiction) jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect judgment by attaching property of the defendant located in another state.
Original vs. Appellate Jurisdiction
Original=Where the case is first heard
Appellate= When the case has already been heard but is being appealed to a higher court
Federal Jurisdiction
The power of the federal courts to hear matters of federal law. (federal question)
Exclusive vs concurrent
- Only in Federal or State Courts
- Otherwise, cases can start in either system, EVEN constitutional cases
- State courts: Family law
Remedies - Equitable vs. Legal
Legal = $$$ Equitable = money isn't an adequate remedy (recision- canceling a contract)
Specific Performance
(equitable remedy) A remedy that orders the breaching party to perform the acts promised in the contract.
Reformation
(equitable remedy) An equitable doctrine that permits the court to rewrite a contract to express the parties' true intentions (ex. if both parties signed a contract that had an error in it that wasn't noticed.)
injunction
(equitable remedy) A court order that prohibits a person from doing a certain act. To obtain an injunction, a person must show that he or she will suffer an irreparable injury if the injunction is not issued.
Exclusive federal jurisdiction (must go to Fed court)
Bankruptcy, Patents, anti-trust, US govt is a party, Federal crimes, Admiralty
State court jurisdiction
family law
in rem jurisdiction
jurisdiction to hear a case because of jurisdiction over the property of the lawsuit
quasi in rem jurisdiction
Jurisdiction allowed a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state.
Federal jurisdiction
Has to have a federal question or diversity of jurisdiction (different states and $75,000 or more)
Exclusive jurisdiction
power of the federal courts alone to hear certain cases
concurrent jurisdiction
authority for both state and federal courts to hear and decide cases
Venue
a concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside
Standing
plaintiff must have some stake in the outcome of a lawsuit
State court systems
limited jurisdiction (only misdemeanors)
general/district jurisdiction (tries all kinds of cases)
intermediate appellate court (takes appeals)
Highest state court
Federal court systems
special fed courts
US district courts
US Courts of appeal
Supreme court - (writ of cert)
rule of 4 (must have 4 in favor of trying the case)
Types of decisions
Unanimous and majority decisions set precedence, plurality does not. Plurality-majority, but agree for different reasons
Pleadings
paperwork that is filed with the court to respond to a lawsuit (complaint, answer, cross-complaint, and reply)
pre-trial
(law) a conference held before the trial begins to bring the parties together to outline discovery proceedings and to define the issues to be tried
post-trial
motion for a new trial and either side by appeal. Enforcement of award.
Appeals
Request to a higher court for a review of a case
ADR (alternative dispute resolution)
methods of resolving disputes other than litigation (negotiation, mediation, conciliation, mini-trial, fact-finding, using judicial referee)
Criminal sanctions
the punishment afforded to a succesfully prosecuted person in a criminal case.
Felonies
a serious crime such as murder, rape, kidnapping, or robbery (prison)
Misdemeanors
A relatively minor offense such as vandalism or stealing inexpensive items (county jail)
Infractions
breaking the law; minor offenses against the rules, usually punishable by fines. (no jail)
responsible corporate officer doctrine
a corporate officer may be criminally liable even if she did not participate in, direct, or even know of the criminal violation.
burglary
entering a building unlawfully with intent to commit a felony or to steal valuable property
robbery
the taking of property from a person's possession by using force or threats
larceny (theft)
The taking of another's personal property other than from his or her person/building
arson
malicious burning to destroy property
Embezzlement
the fraudulent appropriation of funds or property ENTRUSTED to your care but actually owned by someone else
extortion
threat to expose something about another person unless that other person gives money or property (blackmail)
criminal fraud
intentional misrepresentation which results in harm (physical, monetary, etc.) (false presences/deceit)
money laundering
washing illegal or tainted money through legitimate business
corporate criminal liability
criminal liability of corporations for actions of their officers, employees, or agents
criminal process
arrest with miranda rights
booking
initial appearance (bail can be posted)
Indictment/information - officially issued documents
arraignment- accused is presented charges and asked to give a plea
plea bargain/settlement - deal between prosecution and defendant to save time and money
guilty plea/trial- plead guilty or go to trial
exclusionary rule
(unconstitutional) improperly gathered evidence may not be introduced in a criminal trial (exceptions: good faith and inevitable discovery) (fruit of the poisonous tree)
Mistake of fact
a defense claiming an error or misunderstanding of fact or circumstances resulting in an act that would otherwise not have been undertaken
Self defense
the right to protect oneself reasonably from acts of violence or threatened violence
Entrapment
a defense that claims the defendant would not have broken the law if not tricked into doing it by law enforcement officials
Intentional tort
A wrongful act knowingly committed.
Assault
apprehension of and immediate harmful and offensive contact
battery
an assault in which the assailant makes physical contact
false imprisonment
confinement without legal authority
invasion of privacy
1. misappropriation- using someones likeness to make money without consent
2. intrusion upon seclusion- peeping tom
3. False light- publicized false information
4. public disclosure of private facts- (even if it is true)
Defamation
an abusive attack on a person's character or good name
Libel
false statement that appears in print or media (written defamation)
slander
oral defamation of character
disparagement/ trade libel
defaming a company's product or service (belittling)
fraud
intentional misrepresentation, the intentional defrauding of a person out of money, property, or something else of value
intentional infliction of emotional distress
a tort that says a person who's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress (tort of outrage)
malicious prosecution
a lawsuit in which the original defendant sues the original plaintiff. in the 2nd lawsuit, the defendant becomes a plaintiff and visa versa (frivolous, no legitimate grounds)
business torts
intentional torts that occur almost exclusively in a business setting
wrongful interference with a contract
valid enforceable contract exists and is known and is breached by a third party
wrongful interference with a business
established business relationship ends because of predatory methods
elements of negligence
Duty, Breach, Causation, injury
Duty of care
obligation people owe each other not to cause any unreasonable harm or risk (reasonable person)
breach
a breaching of the duty of care (when you act unreasonably)
causation
actual cause of negligence, a person who commits a negligent act is not liable unless actual cause can be proven (actual- my act led to chain of events which caused an injury, proximate-chain of events is reasonable to have blame) MUST HAVE BOTH TO BE GUILTY
injury
a plaintiffs personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant't negligence
Malpractice
the liability of a professional who breaches his or her duty of ordinary care
negligence per se
a tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care
res ipsa loquitur
the burden switches to the defendant to prove that they were not negligent (doctor leaves in scalpel)
superseding/intervening event
unforeseeable intervening event breaks the chain of causation (plane crash causes you to hit another person)
assumption of the risk
voluntary assumption of risk (waiver)(know it was dangerous, goes in anyway)
contributory negligence
behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence
comparative negligence
negligence allocated between the plaintiff and the defendant with a corresponding reduction in damages paid to the plaintiff (if 20% negligent, they are only liable 80%) cannot be 50-50, must be less than 50%.
no duty to rescue
you don't have to put yourself in danger to save someone else
strict liability
liability without fault
(all members of a manufacturing chain are liable)
product liability
legal obligation of sellers to pay damages to individuals who are injured by defective or unsafe products
misrepresentation
untrue statement of facts
negligence
breached duty of care and caused harm
Manufacturing defect
defect that occurs when a manufacturer fails to 1. properly assemble a product. 2. Properly test a product 3. adequately check the quality of a product. EX. mouse in Squirt
design defect
defect that occurs when a product is improperly designed
warning defect
Type of defect that exists when foreseeable risks of harm could have been avoided or reduced by providing reasonable warnings (Not generally known dangers, foreseeable misused)
assumption of risk
voluntarily and knowingly subjecting oneself to danger
generally known dangers
defense that acknowledges that certain product are inherently dangerous and are known to the general population to be so
Misuse of the product
relieves a seller of product liability if the use abnormally misused the product. The product must be designed to protect against foreseeable misuse.
supervening event
product must reach consumer without substantial change
statute of limitation
time limit within which you can sue from when injury occurs
Repose
time limit within which you can sue from when product is sold. (longer period of time)
contributory negligence
behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence
comparative fault
actions that says a plaintiff who is contributorily negligent for his or her injuries is responsible for a proportional share of the damages
a party from Nevada and Utah are fighting and $100,000 at stake, MUST this go to federal court?
No
complaint must have these 3 things
pleade facts, legal cause of action, described what remedy you are asking for
answer contains these 2 things
admits or denies, arises affirmative defenses, the party can raise any cross claims
discovery
ask for interrogatories, ask for documents, deposition, examination
after-trial options
motion for a new trial, motion JNOV (judgment not withstanding the verdict) which means the jury was not reasonable and must have disregarded the evidence for some reason (ex. they hated your client`)
3 parts of appeal
transcript of trial, written brief, and they do an oral argument to the judges panel.
arbitration
mini trial
mediation
a procedure offered by local courts to quickly resolve a dispute
lethal force can only be used if...
imminent death or serious bodily harm