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BUS 215: Business Law Midterm 1

Terms in this set (82)

Codes
Grouping of related statutes (i.e. uniform commercial code)
Common Law
Foundation of the legal system, basic rules of law in certain legal areas, based on old English realm
Modern Law
Rules of law that were modernized
Stare Decisis
Lower court must hear to a higher court's decision
Case Precedents
The case that determined a ruling of law
Cases on Point
Cases similar to the one being argued
Plantiff
Files the complaint/lawsuit (only used in civil cases)
Defendant
The one defending him/herself from the lawsuit/complaint (only used in civil cases
Jurisdiction
Which court the case should be heard
Federal Jurisdiction
Requires either Federal Question or Personal Jurisdiction
Federal Question
A constitutional violation
Personal Jurisdiction
Requires Both:
Diversity of Citizenship (different states)
Amount of Controversy (Damages >75,000)
In Personam
"In Person" the person was injured / property was damaged
In Rem
Unique thing/item being fought for
Petitioner
Petitioning the court
Respondant
Responding to the petitioner
Remedies
Damages / Split into Legal and Equitable
Legal Remedies
Monetary (money)
Equitable Remedies
Injunction Relief - Restraining Orders
Specific Performance - Unique Items/Things
Venue
Where (Location) should the case be heard
Depends on:
-Where the accident/breach of conduct occurred
-Where witnesses are located
-If there are entanglements (company entity in foreign state
Standing to Sue
Party bringing forth the law suit must have a stake in the claim
Complaint
2 page document listing:
-Plaintiff and Defendant
- Cause of Action
document filed to court by plaintiff basically presenting facts and suits
Serving of Process
Serving the defendant:
-In person
-By Agent
-Via Email
-By Newspaper/Magazine
Charges
lends its self to criminal interests (criminal)
Cause of Actions
Used on defendants (civil things i.e. intentional infliction of emotional distress)
Summary Judgement
Motion made to the court to expedite the case
Granted only when there is no genuine issue of trial-able fact and when evidence is viewed in the light most favorable to the other party
Bench Trial
Final verdict made by the Judge
Jury Trial
Final verdict made by the Jury
Jury Selection
Mass mailing to numbers in the system, citizens are summoned and must respond
Voir Dire
Process of selecting the Jury
Opening arguments
Both sides give a quick summary (plaintiff then defendant) no actual argument
Burden of Proof
Plaintiff shows clear and convincing or preponderance evidence. who ever is putting on the case bears the burden of proof. Criminal- harder to prove than civil beyond reason of doubt. Civil- a preponderance of evidence or clear and convincing evidence
Direct Examniation
Questioning favorable witness (no leading questions (y/n))
Cross Examniation
Questioning unfavorable witness (yes leading questions (y/n))
Jury Instructions
Judge gives the rule statement on the law, has to be mutually agreed by both sides and approved by the judge
provide law, jury isn't expected to know law (just trier of fact)
Jury Verdict
Decision made by the Jury
Apellete Review
One side appeals and the apellete court either affirms or denies the lower court's decision
Motion for Mistrial
Any prejudice justifies this motion
Alternative Dispute Resolutions
Cases being heard outside the court
Negotiation
Parties meet informally to negotiate terms of the dispute.
talking it out and settling on a mutual agreement
Mediation
Requires a mediator the facilitate both sides separately. The mediator proposes a solution, responds with their opinion which is not final or binding
Arbitration
Requires a Arbitrator. Process is like a bench trial with the arbitrator deciding the resolution.
(waives the right to have the case heard in court)
Rule statement: arbitration is deemed valid when one knowingly willfully and volitionally signed the agreement and it is not deemed unconscionable
Mens Rea / Actus Rea
Guilty Mind, Guilty Act (both required to be a criminal offense)
Common Law Crimes
BARRK
Burglary
Arson
Robbery
Rape
Kidnapping
Burglary
CL - Intentional breaking and entering into the dwelling house of another during the night time with specific intent to commit a crime therein
ML - Unlawful breaking and entering into any structure at any time
Arson
CL - Malicious burning of the dwelling house of another
ML - Malicious burning of any structure
Roberry
CL + ML - Trespassory taking and asportation of the personal property of another through force
Rape
CL - Unlawful carnal knowledge of a female without consent
ML - Unlawful carnal knowledge of any person without consent
Statutory Rape
CL - Unlawful carnal knowledge of a female under 10
ML - Unlawful carnal knowledge o any person under the age of the majority
Kidnapping
CL - Trespassory and asportation of a person outside the country without consent
ML - Trespassory and asportation of any person without consent
Felonious Crimes
Death and imprisonment of more than one year
Misdemeanors
Fine and imprisonment of less than one year
Embezzelement
Trespassory taking and asporatation of the personal property of another while in lawful custody or posession
Larceny
Trespasory taking and asportation of the personal property of another
Receiving Stolen property
When the party knows or should have known that the goods were stolen
Forgery
Unlawful signing or modification or altering of a legal document or token chosen
Fraud
Intentional misrepresentation of fact, known to be false by the wrongdoer, for purposes of inducing action or inaction and in fact induces the action or inaction desired
Bribery
Enticing a government official to do something they would not otherwise do
Extortion
Gleam information or property from a lay person through threat
Self Defense
One may use both deadly or non-deadly force to defend one's self (equal to the force dealt to one)
Defense of others
One may use deadly or non-deadly force where the other is privileged to use the same amount of force
Defense of property
One may use only non deadly force to defend their property
Voluntary Intoxication
Volitionally do the action to become intoxicated (never a valid defense)
Involuntary Intoxication
Someone put something in the drink
Expressed Consent
Given expressly, either verbally or written
Implied Consent
Implicit through conduct or prior repeated behavior or jesters
Duress
Constraint illegally exercised to force someone to perform an act (never a valid legal defense for murder)
Insanity
• M'naghten test (majority of states): also known as the right wrong test. At the time of the crime the person lacked the mental capacity to know right from wrong
• Irresistible impulse (minority of states): the criminal knows the act is wrong but could not control the impulse to act
Infancy
0-7 years old : Presumption of Innocence
7-14 years old : Reputable Presumption of Innocnece
14 + : Guilty
1st Amendment
Freedom of Speech and Religion - without being insightful
4th Amendment
Prohibits government intrusion against unreasonable searches and seizures against a person or property / requires probable cause and/or warrants
Exceptions to the 4th Amendment
Type of Entity (pawn shops, strip clubs)
Consent
Terry's Stop and Frisk
Plain sight/hear/smell
5th Amendment
Right against self incrimination
Double Jeopardy - No person shall be tried for the same offense twice
6th Amendment
Right to a jury trial (felonious crimes)
Right to counsel (felonious crimes)
Right to a speedy
Right to a fair and impartial trial
Right to cross and confront an accuser
8th Amendment
Right to reasonable bail
Right against cruel and unusual punishment
14th Amendment
No person shall be discriminated against
Tort law
a civil, non-contractual wrong / Must establish intent (the wrongdoer known or should have known)
defamation
the false defamatory statement (libel/ slander) of or concerning the plaintiff communicated to a third party
• false hood: must be false statement
• defamatory: liable has permanency (written or recording) slander is non Permanente form
• third party: not the defamer or plantiff, must known and understand what is being communicated
• you can not defame a dead person
defences to defamation
Truth- valid defense
Absolute privilege- defamatory statements made in judicial setting, so it is what it is, they are excused
Qualified privilege- must be good faith opinions, not malicious
privacy torts
FL- false light
• Can also include intentional infliction of emotional distress
I-intrusion into seclusion or solitude
• Causes you to not be able to enjoy and or relax in your home
C- commercial appropriation
• Where ones name or likeness is being used with out the parties consent
D- public disclosure of privet facts
• One is expected to hold confidences and later disclose them
• i.e. Doctor patient confidentiality, attorney client, therapist, priest etc.
strict liability
iability with out fault
animals:
• domestic (house pets and farm animals)- you are strictly liable if you knew or should have known about the animals dangerous propensities. Often times there is a one free bite rule because after that bite you should have known but before you didn't, exclusion is pit bulls
• wild/unlawful to own or special permit (circus animals, sanctuaries)- the injury of the wild elephant must be typical of the animal.
ultra hazardous: abnormally dangerous activity
• i.e. fireworks, dynamite, chemicals
false pretenses
gleaning items or goods through trickery i.e. dine n dash, fortune telling w/o legitimacy
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