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Business Law test

Terms in this set (98)

out-of-court settlement
both sides agree to a solution before the case reaches court
-amount of settlements are kept private
Janitor insurance
covers large group of employee in one location and the company gets money when the employees die.
The employees usually do not know of this, which raises potential issues as well because the company is benefitting from employees death
Key-Person insurance
A company purchases a life insurance policy on its key employee(s), pays the premiums and is the beneficiary of the policy. If that person unexpectedly dies, the company receives the insurance payoff.
GINA
Genetic information non-disclosure act
-Since our genomes can be mapped now, we have known mutant/beneficial genes, GINA states that employers can't look at this part of our genome when hiring to avoid discrimination.
Basically, illegal to hire employees based on who is the healthiest
homeowners association
is an organization in a subdivision, planned community or condominium that makes and enforces rules for the properties within its jurisdiction. Those who purchase property within an HOA's jurisdiction automatically become members and are required to pay dues
Sources of US Law
English Common Law
Constitutional Law
Statutory Law
Administrative Law
English Common Law
developed by judges who issues their opinions when deciding cases. Principle accounted in these case became precedent for later judges deciding similar cases.

law court, equity court and merchant court
Constitution Law
The body of law derived from the U.S. Constitution and the constitutions of the various states.
Statutory Law
vs common law. Difference is the way in which statutory law is create (by the government) where common law is used to judges along with statutory based on precedent examples to make a current ruling
Administrative Law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

administrative agencies: agencies (such as security and exchange commission) that the legislative and executive branches of federal and state gov are empowered to establish
codified law
formal legal systems in which damages, crimes, remedies, and punishments are specified

part: statute and ordinance
Doctrine of Stare Decisis
from the Latin for "let the decision stand," a common-law doctrine that directs judges to identify previously decided cases with similar facts and then apply to the current case the rule of law used by the courts in the earlier cases
Legislative from the bench
how much power does the judege have in interpreting the US constitution and applying it to law

means legislating from the judge's seat, which is to say, making rulings that (in the opinion of the speaker) are tantamount to modifying laws passed by the legislature, or creating new ones.
State Court System
A state judicial structure. Most states have at least three court levels: trial courts(limited-jurisdiction, general-jurisdiction), appellate courts(intermediate), and a state supreme court.(highest court)
limited jurisdiction trial courts
hear matters of a specialized or limited nature

traffic courts, juvenile, probate, misdemeanor criminal law
General Jurisdiction Trial Courts
Courts that hear any civil or criminal cases that have not been assigned to a special court

evidence and testimony are given here

-the decisions made here are appealable to an intermediate/state supreme court
Intermediate Appellate Courts
A type of state court that takes appeals from parties dissatisfied with trial courts.

reviews either pertinent parts or the whole trial court record from the lower court. No evidence or testimony is permitted.

the parties usually file legal briefs with the appellate courts stating the law and facts that support their positions

can appeal to the highest state court
Highest State Court
the highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts

no evidence or testimony is heard; pertinent part of records from entire lower court is submitted.

parties must also submit legal briefs to the court and are usually granted a brief oral hearing
Federal Court System
The three-tiered structure of federal courts, comprising U.S. district courts, U.S. courts of appeal, and the U.S. Supreme Court.

provides that the federal gov judicial power is vested in one "supreme court" (US supreme)

Article III

DISTRICT COURT- federal version of trial court

court of appeal- federal version of intermediate appellate
Executive order
a rule or order issued by the president to an executive branch of the government and having the force of law.

Deal with emergency situation when something has to happen quickly and there is no time to take it to legislature


affirmative action
Uniform Law
model statutes for states to consider adopting

apply to all states
Contract law
set of laws that specify what constitutes a legally enforceable agreement

common law of contracts-developed from early court decision that became precedent for later decisions
UCC
Uniform Commercial Code - laws governing commercial transactions and establishing claims for collateral.

is one of several uniform acts developed in an attempt to bring the law of the states into harmony with another.
valid initiative
power to propose new legislation
Direct Democracy
A form of government in which citizens rule directly and not through representatives

ex: voting on LGBTQ right
Indirect Democracy
a system of government that gives citizens the opportunity to vote for representatives who work on their behalf
classification of law
Substantive and Procedural

Public and Private

Civil and Criminal
Substative Law
creates, defines, and regulates legal rights and duties

governs the rights and obligations of everyone within its jurisdiction. It defines crimes and punishments, as well as civil rights
procedural law
Civil law suit could result from violation of substantive law
legal entity
Corporation, partner, trust, decedent of state are all example of entities
Three hallmark of legal entities
pi - legal entity can act as plaintiff; party who is suing
delta - defender; legal entity has power to sue
own property- legal entity can own property by itself
decedent
dead person

executor- goes around and gets money from people who owes money to deceased

administrator-

testate- dying with a valid will
intestate- dying without a valid will
law of intestate succession
lawmaker of state decides who gets the money if person dies
Civil law

preponderance of evidence/burden of proof

liability
Rights and duties between entities of a non-criminal nature

Same incident has ability to bring criminal and civil charges

I have civil duty to sue someone for kicking me, and can also charge criminal charges for kicking me

Another example: OJ simpson vs california
Torte of battery (civil)- you get money

Preponderance of evidence and burden of proof

the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.

Burden of proof: the obligation to prove one's assertion.

Liability: used in civil trial (instead of the term guilty)
Criminal law
We start with presumption of innocence
Plaintiff is always the governor
MO vs neha satya; based on the fact that any crime hurts us all
Ordinary people also don't have money to go after bad guy, so taxpayers go and do that together
Burden of proof: every element of crime beyond a reasonable doubt must be proven by prosecutor, plaintiff or the government

guilty, not guilty, innovent
common law burglary
CLOSE- abides certain area from the rest
Room etc
Personal property of another--taking away/depriving
Defense: I was just going to take her item and use it see what's up--I wasn't going to steal it.
If one juror is not convinced on element, I am not convicted
Guilt, guily, not guilty, innocent
role of jury vs judge
Finder of fact: jury finds the fact (if the original crime happened)
Giver of law: judge's duty
appeal system in civil vs criminal charges
Any side can appeal
Criminal cases- if not find guilty, cannot appeal again
litigation
process of bringing, maintaining or defending a lawsuit.
major phases of litigation
pleading, discovery, pretrial motions and settlement conference
pleading
paperwork that is filed with the court to initiate and respond to a lawsuit
--to initiate a lawsuit, the party suing (plaintiff) must file a complain in proper court. contain name of the parties, facts/law violated, prayer for relief

summon- once complaint has been filed, the defender is informed to appear to court

answer- defender admits or denies allegation made by plaintiff. If no answer is received, a default judgment is entered, which establishes defendant's liability

cross complaint and reply- document filed and served by a defendant is he or she countersues the plaintiff. defendant = cross-complainant and the plaintiff is the cross-defendant

cross defendant now must file and serve a reply.
intervention and consolidation
intervention- act of others to join as parties to an existing lawsuit

consolidation- act of court to combine two or more separate lawsuits into one lawsuit
class action
group of plaintiffs collectively bring a lawsuit against a defendant .

- the judge has to approve class action law. ex: silicon breast implants--everyone involved got to sue

two options: opt-in or opt-out
opt-in or opt-out

which is the better option for the defendant?
Ones judge decided class action lawsuit aka similarly situated people and gives them the option of opting in or out.
Opt-in: If you want to be part of lawsuits, you need to notify the court
Opt-out: If you involved in initially suing, you are automatically a plaintiff in lawsuit
If you don't wanna be in this lawsuit, you need to opt-out
If opt-out, you either cannot sue or sue by yourself

Sometimes, it is better for companies to be sued once in class action than sued multiple times separately due to budget reasons.
Opt-out is a better option for the defendant; bc everyone who fits the description is automatically a plaintiff. To change, the rules you would have to do something and people usually are too lazy to do something
As a chair company, you would want to tie in as many people as possible and pay one legal company all at once, instead of being sued million times.
market share liability
is a manner of awarding damages to a plaintiff when there is no way to figure out which defendant is responsible for how much of the plaintiff's injuries.
Coupon cases:
Lawyers don't get money unless they win; and they get percentage of what you win s
Statute of Limitations
The time within which a case must be commenced.
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.

-disposition: oral testimony given by a party or witness prior to trial under oath by deponent

interrogatories - written questions submitted by one party to a lawsuit to another party

production of documents- request by one party to another to produce all documents relevant to case prior to the trial

physical/mental examination
pretrial motion
a motion a party can make to try to resolve or dispose of all or part of a lawsuit prior to trial

two motions: motions for judgement on the pleadings and motion for summary judgement
settlement conference
a hearing before a trial in order to facilitate the settlement of a case
jury selection
The process whereby, according to law and precedent, members of a trial jury are chosen.

individuals are selected to hear specific cases through a process called coir dire ("to speak the truth")
voir dire
a preliminary examination of a witness or a juror by a judge or counsel to determine whether they exhibit bias/prejudice
Trial Overview
jury selection
opening statement
the plaintiff's case
the defendant's case
rebuttal and rejoinder
closing argument
jury instruction, delibration and verdict
entry of judgement
contingency pay agreement
if you win $0-2000; lawyer would take 10%, 20%, 30% etc

vs hourly
Jurisdiction
The authority of a court to hear a case. you cannot file any lawsuit in any court, you have to go to appropriate court.
Type of jurisdiction of federal court
federal question - case arising under the US constitution, treaties or federal statute and regulations. no $$ amount limit for federal question
Can come from small town, local law

diversity of citizenship- means of bringing a lawsuit in federal court that involves a nonfederal questions if the parties are 1. citizen of different states 2. citizen of state and a citizen or subject of a foreign country
Minimum $75000 damage must be involved
Jurisdiction of State Courts
State courts hear any cases that federal courts do not have jurisdiction to hear including matters involving state law, real estate, business law, sales and lease agreemants, and Negotiable Instruments.

state court have concurrent jurisdiction with federal courts to hear cases involving diversity of citizenship and federal questions over which federal court do not have exclusive jurisdiction. ex: you can take case involving juris. to state court if it doesn't qualify to federal
standing to sue
The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit.

-stake: if you are injured is car crash, your friend shouldn't sue you
in personam jurisdiction
Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

plaintiff and defendant both have jurisdiction over him/herself

jurisdiction is defined as: Defined as authority of the court to take your case
long arm statute
A state statute that permits a state to exercise jurisdiction over nonresident defendants.

nonresident has:
1. committed tort within the state
2.entered into contract either in state or that affects the state(allegedly breached the contract). aka own real estate in another state
3. transacted other business in the state that allegedly cause injury to another person)
venue
reuires a lawuit to be heard by the court of the court system that has jurisdiction to hear the case that is located nearest to where the incident occurred.
JNOV
judgement not withstanding the verdict
--JURY decides another things and judges reverse the jury
-very rare
Decision of the US supreme court
unanimous decision
majority decision
plurality decision
tie decision

leads to opinion:
concurring- judges who agrees with the outcomes of case but not the reason proffered by other justices can issue this opinion

dissenting opinion- justice who does not agree with a decision can file an dis opinion that sets forth the reasons for his or her dissent
domicile for a company
state of incorporation (initially formed) + state where the HQ is+ where it is doing business
dispute resolution
method of resolving disputes other than litigation

negotiation
arbitration
mediation
negotiation
discussion and bargaining to try to reach a voluntary settlement of their dispute
Arbitration
parties choose an impartial 3rd party to hear and decide the dispute. labor union, leases, employment and other commercial contract usually contain arbitration clause

arb. clause- clause in contract that requires disputes arising out of the contract to be submitted to arbitration.

simple terms: whats stated is contract should be followed

"you are giving up the legal right to sue the other party. "

?wtf
Mediation
parties use mediator to propose a settlement of their dispute
domicile
A home; residence
air space jurisdiction
when you own land, you own it from heaven to center of earth
Air-space-- if someone has a tree hanging in your yard, you can ask them to cut that tree
surface estate
the rights - or title - to the portion of the land that is on the surface-basement
sub-surface estate
Below basement- where minerals are found etc
You can lease out sub-surface estate separate from surface estate
"Oil lease"
If oil is under three different properties, you have to contact all three owners to lease out land to oil company
When buying house, ask if I own both surface and sub-surface estate, because someone can own the subsurface estate on your property.
Written Interrogatories
lists of questions that must be answered in writing and under oath
oral deposition
A deposition that involves the actual presence of the deponent who responds aloud to the questions asked by an attorney.

Both side of lawyers would be there, they meet at a neutral place. Going through deposition is really really stressful/unpleasant because lawyers from other side want to get you
Attorney tell their client to not answer
Done under oath--can be admissible in court
Privilege communication
confidential information that has been told to a:

physician (or attorney) by the patient

lawyer client privilege

doctor-pt privilege

spousal privilege

penitent(spiritual master)

anything that risks national security
self-incrimination
The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. The Fifth Amendment forbids self-incrimination.
challenge for cause
A voir dire challenge for which an attorney states the reason why a prospective juror should not be included on the jury.

'I hate USA'
Two types of evidence
direct evidence and circumstantial evidence
direct evidence
Evidence that establishes the existence of a fact that is in question without relying on inference.
circumstantial evidence
evidence provided by a witness from which a jury must infer a fact

'he spit ears in front of me so he must have bit his ears off'
in jury during case:
opening statement (presentation of evidence from both sides- direct/circumstantial)

- direct examination (friendly question by lawyer from your side)

-cross examination- not so friendly questioning by lawyer from the other side

-expert witness: express his independent expert opinion based on the information that is provided.

-closing argument - end of presentation of all the documents from both side
"We have proven by preponderance of evidence that..."

finally, jury decision on the outcome
delegated or enumerated power given to federal gov include
power to coin money, establish federal post office, power to declare war, power to conduct foreign relations, power to regulate commerce
reserved power
Power to the states
Article 1 of the Constitution
Legislative Branch
article 2 of the constitution
Executive Branch
Article 3 of the Constitution
Judicial Branch
Judicial Review (Marbury v. Madison)
The power of the courts to declare laws unconstitutional

-not mentioned in constitution; we have the power to look at legislative and executive order to determine if they are constitutional or not
Commerce Clause
Clause stating that Congress can regulate interstate and international commerce.

article 1, section 8
3 parts of commerce clause
regulate commerce with foreign nations/interstate commerce and commerce with indian tribe (Indian reservation, bureau of indian law etc is all federal law)
ordinary speech
type of speech that is most protected

government cannot limit ordinary speech

- verbal/non-verbal speech is protected as well
Nonprotected speech
Libel, obscenity, fighting words, and commercial speech, which are not entitled to constitutional protection in all circumstances.

defamation: telling a lie about someone that hurts their reputation

trade disparagement- lie about company that hurts their reputation

absenity: not legal or protected; porn is legal as long as it doesn't involve children
laws that are somewhat protected
commercial law such as advertisement

-central Hudson Gas Case
How much the court can limit commercial speech
Whether the speech at issue concerns legal activity/whether or not its misleading

Whether the interest asserted by the gov are substantial

Whether the regulation directly advances gov interest

Whether the regulation is more extensive than necessary
2nd Amendment
freedom of religion

The government will not interfere with the practice of your religion

Limitation: they have to honor contract application for job
etc. ex: COP praying during anytime of shift
Never ask: can you work on sundays?
4th Amendment
no unreasonable searches/seizures
Search warrant needed, unless emergency
Take case to judge to prove that there is a probable cause to believe that search is needed
Exclusionary rule?
5th Amendment
The Right to Remain Silent/Double Jeopardy, right to due process
Due Process Clause
Clause in the Fifth Amendment limiting the power of the national government; similar clause in the Fourteenth Amendment prohibiting state governments from depriving any person of life, liberty, or property without due process of law.
14th Amendment
Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws

-similarly situated person must be treated the same.

Equal protection clause
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