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91 terms

MGT 201 Test #1

Test #1 9/23/2013
STUDY
PLAY
Law
set of rules, created and enforced by gov
Jurisprudence
philosophy of law
Concepts of Jurisprudence
Law as Power, Legal Positivism, Legal Realism, Natural Law
Law as Power
under color of authority
Legal Positivism
Law is what the Law says, no questions
Legal Realism
who is in position to enforce the law (judges)
Natural Law
human rights regardless of what the law says
Parts of Free Market System
Law, Rule of Law, Property, Importance of Rule of Law to Business
Rule of Law
law is generally and equally applicable to to everyone, system of published laws under which gov and people are bound
Property
legal rights as asset, exclusivity of others
Importance of Rule of Law to Business
creates predictability and certainty, provides for peaceful resolution of disputes, provides incentive to maximize asset, attempt to minimalize liability
Classifications of Law
Common and Civil, Public and Private, Civil and Criminal, Substantive
Common and Civil Law
judge made law
Public Law
constitutional, administrative, criminal
Private Law
property, contracts, torts (reasonable)
Torts
unfairly causes someone else to suffer loss or harm
Civil Law
usually between two individuals, monetary compensation
Criminal Law
violate the law and put society at risk, punishment
Burden of Proof
in civil case, it is less than that of a criminal case beyond a reasonable doubt (proponderance in civil case)
Substantive Law
law that determines rights and duties of individuals
Procedural Law
laws, mechanisms, procedures put in place to determine substantive issues
Sources of Law
Constitution, Legislation, Administrative Regulation, Judicial Decisions
Consitution
Federal: grant of power
State: often limits federal gov power
Concepts of US Constitution (3)
set up 3 branches of gov, states retain all powers not given to the federal gov, basic rights guaranteed to individuals
Legislation
law passed by elected officials
Administrative Regulation
created by administration agencies such as SEC, EPA in order to make rules
Judicial Decisons
judge made law or common law
Precedents
standard when judge is faced with similar case and should look at standard
Stare Decisis
when looking at past decisions of precedents, should base opinion consistently with prior decisions
Legal Sanction Enforcement and Penalties
Criminal Conduct, Breach of Contract, Tortious Conduct, Violations of Statutes
Criminal Conduct
punishment
Breach of Contract
monetary damages
Compensatory Damages
put injured person where they would have been
Tortious Conduct
compensatory: make plain of whole
Violations of Statutes and Regulations
fines, damages, jail time
Personnel
Judge, Justice, Magistrate
Juror, Lawyers
Organization of Court
Federal and State
Trial, Court of Appeals and Supreme Court
Judge/Justice/Magistrate
presides over procedures of case
Appellate Court
no witnesses, can sustain the trial courts decision, reverse or remain
Writ of Certiorari
decision by the Supreme Court to hear an appeal from a lower court
Jurors
hear evidence and make factual determination
Petit Jury
6th and 7th Amendments which are trial rights, decide guilty or not guilty and liable or not liable , judge provides law, then they render a verdict
Traditional Role of Jurors
previously not allowed to take notes or ask questions, now can
Unanimous for Jurors?
federal requires unanimous, varies by state
Lawyers
first duty to admin or justice (ethical and correct before else)
Adversarial System
lawyer is a zealous advocate to client (if client committed murder, the lawyer has to support reasonable doubt)
Malpractice
lawyers get sued for mistakes
Trial Court (State)
only court that hears evidence, determines law to be applied, small claims court for minor financial issues
Appellate Court (State)
review judgment of trial court
Supreme Court (State)
have to file a Write of Certiorari, not entitled to second review, few cases are accepted
Federal Courts
jurisdiction limited by Congress, jurisdiction limited to federal question, the US as a party, controversy between states, diversity of citizenship
Appellate Court (Federal)
13 Court of Appeals, parties entitled to review, simple majority rules
US Supreme Court (Federal)
Writ of Certiorari, questions of Federal Importance, Constitutional Issues, Conflicting Decision, Decision becomes law of the land, not subject to review
Judicial Review
power of courts to review action of legislative and executive branch and declare them to be unconstitutional (created in Marbury v. Madison)
Judicial Restraint
only use judicial review in unusual cases, change comes from legislation, look at intent of founding fathers, strong belief of precedent, belief in state's rights
Judicial Activism
court corrects social wrongs, less dependent on precedent, Constitution is a living/breathing document that changes over time, less concerned about state rights (federal > state)
Majority Opinion
5 Justices carries the day
Concurring Opinion
justices agree, but for different reasons
Dissentting Opinion
justices say why they voted so
Dicta vs. Holding
not binding by lower courts, theorize
vs.
obligated to follow
Plaintiff
person charging
Defendant
person being charged
Appellant
initiates lawsuit
Appellee
asked to sustain lawsuit of trial court
3rd Party Defendant
defendant brings someone in (passing blame - liable to plaintiff)
Standing to Sue
personal stake in case
Subject Matter Jurisdiction
does court have authority over this type of case?
General Jurisdiction
many types of cases
Limited Jurisdiction
specific court cases
Personal Jurisdiction
jurisdiction over the parties, plaintiff submits, defendant
Minimum Contracts
would it be fair to require defendant to defend in this specific court
Long Arm Statute
serve notice to out of state defendant
Summons
need to appear in court (state)
Criminal
tried whenever crime is committed
Extradition
state/controversy asks for defendant to be transported back for trial
Complaint
document that initiates lawsuit
Motion to Dismiss
court doesn't have jurisdiction over me
Answer/Counterclaim
answer to complaint
Reply
response to complaint
Motion for Judgment on Pleadings
no dispute, ask court to decide after complaint and answer
Default
no response by defendant, win by default
Purpose
no surprises, both sides know case
Interrogatories
written questions the party answers before trial
Deposition
oral questions asked by lawyer to defendant; phrase questions to attack credibility at trial
Request for Production of Documents
use of documents during trial (written questions)
Physical and Mental Exams
examinations of those involved in case
Scope
very broad, often abused
Motions
request by party for court to do something, pretrial determination, numerous types
Voir Dire
jury is chosen
Peremptory Challenge
ask judge for removal, limited number
Challenge for Cause
documentation to judge that juror is biased