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MGT 330- Business Law
Midterm Review Textbook: Legal Environment Today: Business in its Ethical Regulatory E-Commerce and Global Setting
Terms in this set (96)
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters. Spells out rights and duties that exist between persons and between persons and their governments, and the relief available when a person's rights are violated.
Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.
Burden of Proof
Civil case- Plaintiff has BOP to prove on the preponderance that defendant has committed crime.
Criminal case- Government has BOP to prove beyond a reasonable doubt. If there is any reasonable doubt that a criminal defendant committed the crime with which she or he has been charged, then the verdict must be "not guilty."
Judicial Review (ch. 1,3 &4)
The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch. Decided by Marbury v Madison.
A judicial order forcing a person or group to refrain from doing something. Issued by a court of equity.
Monetary damages/ compensation. Courts of Law.
used by the courts when suits for money do not provide justice. Courts of Equity.
Branch of law founded on notions of justice and fair dealing. Equity=fair. Equity is the body of law that addresses concerns that fall outside the jurisdiction of common law.
A reference to a publication in which a legal authority—such as a statute or a court decision—or other source can be found.
The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
Arranges all existing federal laws of a public and permanent nature by subject. Arranged into 50 subjects, each law is given a title and a title number. Prepared by a unit of the House of Representatives.
An equitable remedy in which the court orders the contract to be performed as agreed to by the parties.
Where do laws come from?
1)Constitutional Law- U.S. and State Constitutions
2)Federal Laws: U.S. Code (Enactments of Congress), Code of Federal Regulations (Administrative Agencies ie EPA), and Executive Orders
3)State Laws: NC General Statutes (General Assembly/ N.C. Legislature) and State Administrative Agencies
4) Local Laws- Ordinances, statutory law Municipal or County governments
5) Common Law- Stare Decisis
6) National Law- Pertains to a particular nation. May be common law, civil law or Sharia (Islamic countries)
7) International law- governs relations among nations- treaties, customs, international conferences
8) Cyber law- both federal and state levels, governs electronic communications and transactions
Original jurisdiction- courts in which lawsuits begin, trials take place and evidence is presented. First Court a suit is filed.
(appellate jurisdiction) brought before the court only to appeal from an order or a judgement of a trial court. 1) can affirm/revoke/remand 2) stare decisis
Types of Discovery
1) interrogatories: written questions for which written answers are prepared by a party to a lawsuit.
2)subpoena: issued to compel a party to give testimony and produce documents
3) request for admissions: used to eliminate matters about which there is no real controversy (do you admit this, etc)
4) deposition: an out of court statement given under oath by a person involved in the case (live questioning)
U.S./Federal District Court
The courts of the national government that deal with problems between states, with the constitution, and with laws made by Congress
Rule of 4
A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.
used to determine in personam jurisdiction via internet.. The determinant of where you can be sued based on how much business you have done in certain areas. Must have enough connections in the area for action to be brought against you
Statute of Limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced. After this time your case will be thrown out.
Civil Suit - How to Sue
Parties must have a standing to sue and a legal dispute. File Complaint, must be w/in statute of limit., jurisdiction. Establish a venue. Serve complaint and summons. Defendants Answer. Motions for court to take action. Discovery process- gathering evidence for trial. Pretrial Conference. Trial- jury selection, opening statements, plaintiffs case, defendant cross examines plaintiff's witnesses, defendant moves for Directed Verdict. Closing Arguments. Jury Instructions. Deliberation. Verdict. Post Trial Motions(judgement NOV, new trial etc). Enforcing Judgement.
Civil Suit - What has to be in the complaint
1) facts necessary for the court to take jurisdiction
2) brief summary of the facts necessary to show that the plaintiff deserves a remedy
3) statement of the remedy being sought
A document informing a defendant that a legal action has been commenced against her or him and that the defendant must appear in court on a certain date to answer the plaintiff's complaint.
A legal document summoning someone to court. To give testimony and produce documents.
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
Procedurally, a defendant's response to the plaintiff's complaint.
A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
Procedurally, a plaintiff's response to a defendant's answer.
Motion to Dismiss
A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which the suit should be dismissed. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case.
The geographic district in which a legal action is tried and from which the jury is selected.
Writ of Certiorari
A writ from a higher court asking a lower court for the record of a case.
Voir dire and challenges
An Old French phrase meaning "to speak the truth." In legal language, the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors. Can dismiss potential jurors "for cause" (just because) or preemptory- your guess at what they will do/say
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding.
The authority of a court to hear and decide a specific case.
State vs Federal Jurisdiction
Federal- federal crimes, bankruptcy, patents, and copyrights, suits against U.S., ocean waters
State- divorce, adoption
When it could be either the party gets to choose
Subject matter jurisdiction
Jurisdiction over subject matter is a limitation on the types of cases a court can hear. In both federal and state court systems, there are courts of general (unlimited) jurisdiction and courts of limited jurisdiction.
In personam Jurisdiction
(different ways that the court in a civil case can have power to hear a case against a defendant- looks to connections the defendant has with the geographic areajurisdiction based upon claims against a person, in contrast to jurisdiction over the person's property
Magistrate (Small Claims)= $10,000 or less- appeal to District Court
Over $10,000-$25,000- appeal to NC Court of Appeals
Superior- over $25,000- appeal to NC Court of Appeals
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.
Judgement notwithstanding the verdict (judgement NOV)
"Motion for Judgement" a motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury's verdict against him/her was unreasonable and erroneous. Request for the judge to ignore the jury's verdict.
A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.
Standing to sue
The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.
The provisions in the Fifth and Fourteenth Amendments to the U.S. Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.
The provision in the Fourteenth Amendment to the U.S. Constitution that guarantees that a state may not "deny to any person within its jurisdiction the equal protection of the laws." This clause mandates that the state governments must treat similarly situated individuals in a similar manner.
The requirement in Article VI of the U.S. Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land." Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.
The giving of testimony that may subject the testifier to criminal prosecution. The Fifth Amendment to the U.S. Constitution protects against self-incrimination by providing that no person "shall be compelled in any criminal case to be a witness against himself."
Invasion of privacy
A person has the right to solitude and freedom from prying eyes of public. To sue for invasion a person must have a reasonable expectation of privacy and the invasion must be highly offensive. 1) appropriation of identity 2) intrusion into a person's affairs or seclusion 3) False Light (info that puts a person in a false light) 4) public disclosure of private facts (sex life, financial affairs)
Police Powers (and weighing process)
Powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
The power of a government to take land from private citizens for public use on the payment of just compensation
The right to a formal indictment by the grand jury, Criminal Proceedings; Due Process; Eminent Domain; Double Jeopardy; Protection from Self incrimination
declared that all persons born in the US were citizenship, that all citizens were entitled to equal rights and their rights were protected by due process
Bill of Rights- definition, purpose, application
The first ten amendments to the U.S. Constitution. The purpose of the Bill of Rights is to limit the government's power and to apply the Constitution to individual states. Held up by the Supreme Court. 1) Freedom of religion, speech, press, assembly 2) bear arms 4) unreasonable search and seizure 6)speedy and public trial 7)right to trial by jury in civil case 8) no cruel and unusual punishment 10)power reserved for states
The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.
Body of law derived from the U.S. Constitution and constitutions of various states. U.S. Constitution is the supreme law of the land. Laws that violate the cons
Constitutional rights of corporations
Recognized as a person and it enjoys many of the same rights and privileges under state and federal law that natural persons enjoy. (due process, free speech, fund political broadcasts)
In tort law, the use by one person of another person's name, likeness, or other identifying characteristic without permission and for the benefit of the user.
Assault and Battery
Assault- Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat. Battery- The unexcused, harmful or offensive, intentional touching of another.
Communication Decency Act of 1996
included in the 1996 Telecommunications Act, directed at indecent materials on the internet, was found unconstitutional in Reno v. ACLU, 1997.
A tort committed in cyberspace.
Anything published or publicly spoken that causes injury to another's good name, reputation, or character.
Defamation in oral form.
Slander per se
1) statement that another has a particular type of disease or mental illness 2)statement that another has committed improprieties in business, trade, or profession
3) statement that another has committed or has been imprisoned for a serious crime
4) statement that a person has been unchaste or engaged in sexual misconduct
Defamation in writing or other form having the quality of permanence (such as a digital recording).
An economically injurious falsehood made about another's product or property; a general term for torts that are more specifically referred to as slander of quality or slander of title.
fraudulent misrepresentation- any misrepresentation either by misstatement or by omission of a material fact knowingly made with the intention of deceiving another. Intentional deceit for personal gain.
Disparagement of property
an economically injurious falsehood made about another's product or property. a general term for torts taht are more specifically referred to as slander of quality or slander of title
A rule in tort law that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely; used in the majority of states.
A rule in tort law that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault; used in a minority of states.
Wrongfully taking or retaining possession of an individual's personal property and placing it in the service of another.
intentional confinement or restraint of another person's activities without justification.
privilege to detain- granted to merchants in most states to use reasonable force to detain or delay a person suspected of shoplifting from leaving the establishment
Negligence- elements and defenses
The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
Res Ipsa Loquitur
A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."
Civil wrong not arising from a breach of contract; a breach of legal duty that proximately causes harm or injury to a person
Elements of Torts and Damages Possible
damages- Money sought as a remedy for a breach of contract or a tortious action.
Trespass to Land The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization.
Trespass to Personal Property The unlawful taking or harming of another's personal property; interference with another's right to the exclusive possession of his or her personal property.
self-defense, necessity, insanity, justifiable use of force, mistake, duress, entrapment, statute of limitations, immunity
In criminal procedure, a rule under which any evidence that is obtained in violation of the accused's rights guaranteed by the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.
Mental state, or intent. Normally, a wrongful mental state is as necessary as a wrongful act to establish criminal liability. What constitutes such a mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life.
A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.
Requirements for a crime
act of commission- person has to do something, guilty act- a person is punished for harm done to society
A publication of the U.S. government that prints executive orders, rules, and regulations.
Freedom of Information Act, requires disclosure of all governmental information unless exempt under Act.
, Mandates that all records created and kept by federal agencies in the executive branch must be open for public inspection and copying
Government in the Sunshine Act
A law that requires all committee-directed federal agencies to conduct their business regularly in public session
The formal instructions that government issues for implementing laws.
, EPA, FDA, OSHA, &State Depts. of Health (DOH) primarily issue:
Administrative Law Judge- One who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact.
Steps followed by agencies when creating rules
1. Enabling Act. 2. Agency researches problem 3. proposed regulation 4. public comment period 5. action on rules taken, 6. final rule published in federal register 7. court and legislative challenges to proposed rules
Administrative procedure act- spells out the steps federal agencies must follow when creating laws
a federal agency that established to perform a specific function. authorized by legislative acts to make and enforce rules in order to administer and enforce the acts
Code of Federal Regulations
Part of the Federal Register Act. The rules and regulations of other federal administrative agencies.
Latin term meaning "beyond the powers"; in corporate law, acts of a corporation that are beyond its express and implied powers to undertake
exhausting your administrative remedies- Adjudication
The act of rendering a judicial decision. in an administrative process the proceeding in which an administrative law judge hears and decides issues that arise when an administrative agency charges a person or a firm with violating a law or regulation enforced by the agency
1) negotiated settlements 2) formal complaint 3) hearing before ALJ 4) appeal to agency 5) appeal to Federal Court
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