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152 terms

business law 1-8

essentials of business law and the legal environment
STUDY
PLAY
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
procedural rules
rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before it
rule
agency statement of general or particular applicability designed to implement, interpret, or process law or policy
rulemaking
process by which an administrative agency promulgates rules of law