180 terms

Business Law Test 1

In preperation for an A in BLAW.
STUDY
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law
enforcable rules governing relationships among individuals and between individuals and thier society.
jurisprudence
the branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do
Natural law
a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society
positive law
The body of conventional, or written, law of a particular society at a particular point in time.
positivist school
A school of legal thought centered on the assumption that there is no law higher then the laws created by the government. Laws must be obeyed, even if they are unjust, to prevent anarchy.
Historical school
emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system
Legal realism
Based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs
Sociological school
A school of legal thought that views the law as a tool for promoting justice in society.
breaches
Violation of a law, duty, or other form of obligation, either by engaging in an action or failing to act
Areas of Law that may affect business decision making
Contracts, Sales, Negotiable instruments, creditos rights, intellectual property, e-commerce, product liability, torts, agency, business organizations, professional liability, courts and court procedures.
Constitutional Law
law that involves the interpretation and application of the U.S. Constitution and state constitutions
Statutory Law
the body of laws created by legislative statutes
ordinaces
to confirm priestly authority upon
uniform laws
need a set of laws so that commerce is possible; can't have different laws in every state for business. Uniform Commercial Code. Uniform Partnernship Act. Most states adopt them but not in the exact same form
Administrative law
the body of rules and regulations and orders and decisions created by administrative agencies of government
Administrative agency
A federal, state, or local government unit established to perform a specific function. Administrative agencies are created and authorized by legislative bodies to administer and enforce specific laws.
Independent regulatory agencies
Federal regulatory agencies that are independent, thus not fully under the power of the president. Ex. Federal Trade Commission, Securities and Exchange Commission.
Case law
(civil law) a law established by following earlier judicial decisions
Common law
a body of rulings made by judges that become part of a nation's legal system
Remedies
a court will award money or other relief to a party injured by a breach of contract
Courts of law
The courts that awarded compensation back in English Realm
Remedies of Law
Three remedies known as land, items of value, or money
Damages
a sum of money paid in compensation for loss or injury
Chancellor
highest official of a monarch. Granted new an unique remedies.
Courts of equity
Formal chancery courts, grant unique remedies. These remedies include specific performance, injunction and rescission.
Equitable maxims
Propositions or general statements of equitable rules
laches
a doctrine by which equitable relief is denied to one who has waited TOO long to seek relief
Defense
a defendant's answer or plea denying the truth of the charges against him
Petitioner
someone who petitions a court for redress of a grievance or recovery of a right
Respondent
The party against whom legal action is taken; the party against whom a writ of certiorari is sought.
Statues of limitation
specific length of time an individual can sue for injury resulting from negligence
Precedent
an example that is used to justify similar occurrences at a later time
Reporters
set of books containing published court decisions
Binding authority
Any source of law that a court must follow when deciding a case. This includes constitutions, statues, and regulations, that govern the issue being decided, as well as previous court decisions in the same jurisdiction.
Public Policy
the course of action the government takes in response to an issue or problem as deemed by widely held belief.
Legal reasoning
the reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to the specific facts or circumstances of the case
Alleges
claims
Cases on point
Previously decided cases that are as similar as possible to the one under consideration
Syllogism
logical formula consisting of a major premise, a minor premise and a conclusion; deceptive or specious argument
Analogy
drawing a comparison in order to show a similarity in some respect
Origins Of Common Law
1066 in Britain, King William implemented this uniform legal system. He sent judges out to make rulings on cases, thus creating precedents. 1225, the signing of the Magna Carta established the rule of law in England
Legal and Equitable Remedies
-if the injured party can be made whole by receiving something of economic value, the remedy is a legal remedy [damages]
-if a remedy at law is inadequate, a litigant may seek a remedy in equity, which involves notions of fair dealing and justice
Case Precedents and the doctrine of stare decisis
Judges must abide by precedents in thier jurisdictions.
Stare Decisis and legal Reasoning
Use deductive reasoning to identify relevant legal rules, applying those rules to to the facts of the case and drawing a conclusion.
Civil Law
law concerned with private wrongs against individuals
Criminal law
law concerned with public wrongs against society
citation
a reference to or a quotation from an authority
Cyberlaw
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
Appellant
the party who appeals a decision of a lower court
Appellee
party who defends an appeal
Opinions
Contains the courts reasons for its decision, the rules of law that apply, and the judgement
Jurisdiction
(law) the right and power to interpret and apply the law
in personam jurisdiction
jurisdiction based upon claims against a person, in contrast to jurisdiction over the person's property
In rem jurisdiction
jurisdiction based on claims against property
Long arm statue
state statute that permits a state to obtain personal jurisdiction over nonresident defendants
Probate courts
State courts that handle only matters relating to the transfer of a person's assets and obligations after that person's death, including issues relating to custody and guardianship of children
Bankruptcy courts
Handle only bankruptcy proceedings, which are governed by federal bankruptcy law
Federal question
a question that had to do with the US Constitution, acts of Congress, or treaties; it provides a basis for federal jurisdiction
diversity of citizenship
A basis for federal court jurisdiction over a lawsuit between (1) citizens of different states (2) a foreign country and citizens of a state of of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases,
Concurrent Jurisdiction
authority shared by both federal and state courts
Exclusive Jurisdiction
Jurisdiction that exists when a case can be heard only in a particular court or type of court.
Venue
The location where something takes place, esp. a trial
Standing to sue
In order to bring a lawsuit before a court a party must have a sufficient "stake" in a matter to justify seeking relief through the court system
Justicable controversy
a controversey that is not hypotheical or academic but real and substansial; a requirement the must be satisfied before a court will hear a case
State and Federal Court Systems
Supreme Court followed by the U.S. Court of Appeals and The highest state courts. Then followed by federal administrative agencies. U.S. District Courts, Specialized U.S. Courts(bankruptcy courts, court of Federal claims, court of international trade, tax court), state court of appeals. Below these are the state trial court od general jurisdiction, state administrative agencies. Below them are local trial courts of limited jurisdiction.
Small Claims courts
courts that handle cases that involve less than $5000
Question of fact
a question asked to determine what is true or to what extent something is true
Question of law
In a lawsuit, an issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.
Litigation
a legal proceeding in a court
Alternative dispute resolution
settlement of civil disputes between parties using neutral mediators or arbitrators without going to court
Writ of certiorari
a common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case
Rule of four
Requirement that a case can only be heard by the Supreme Court if four justices vote to hear the case
Negotiation
Discussion with a view to reaching agreement; talking about a conflict where both parties give and take to reach a resolution, without attorneys.
Arbitration
the process by which the parties in a dispute submit their difference to the judgment of an impartial person or group appointed by mutual consent
Award
In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator.
Arbitration clause
a clause in a contract providing for arbitration of disputes arising under the contract
Arbitrability
The question of whether an issue lies within the authority and jurisdiction of the arbitrator. A matter may be declared non-arbitrable either because certain steps, timetables and procedures have not been followed prior to submitting it to arbitration or because the substance of the issue is beyond the scope of the arbitrator's authority as defined by the collective bargaining agreement.
Early neutral case evaluation
A form of alternative dispute resolution in which a neutral third party evaluates the strengths and weakness of the disputing parties' positions; the evaluator's opinion forms the basis for negotiating a settlement.
Mini-trial
private proceeding in which each party to a dispute argues its position before the other side, and vice versa. A neutral third party may be present and act as an adviser if the parties fail to reach an agreement
Summary jury trials
a nonbinding process in which attorneys for both sides present synopses of their cases to a jury, which renders an advisory opinion on the basis of these presentations
American Arbitration Association
a major provider of arbitration services
Online dispute resolution
the resolution of disputes wit hthe assitance of organizations that offer disputesresolution services via the internet.
Federal Rules of Civil Procedure
the rules governing the manner in which civil cases are brough in and progress through the federal courts
Stages in an A Typical Lawsuit
(accident, breach of contract, or other event) > Party consults with Attorney(Initial client interview, signing of retainer agreement) > Informal investigation > Plaintiffs attorney files complaint > Defendant attorney files answer to complaint or motion to dismiss > Motion for judgments on the pleadings(Request to end case based on info contained in the pleadings) > Discovery(formal investigation, deposition, interrogation, other discovery requests) > Motion for summary judgments(Requests to end case on available information) > Further discovery > Pretrial conference > Trial > Posttrial Motions > Appeal > Steps to Enforce and collect
Pleadings
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.
Complaint
(civil law) the first pleading of the plaintiff setting out the facts on which the claim for relief is based
Service of process
the act of delivering a writ or summons upon someone
Summons
an order to appear in person at a given place and time
Default judgement
a judgment entered in favor of the plaintiff when the defendant defaults (fails to appear in court)
Answer
the principle pleading by the defendant in response to plaintiff's complaint
Affirmative defense
A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations.
Counterclaim
a claim filed in opposition to another claim in a legal action
Motion
the act of changing location from one place to another
Pretrial motions
motion to dismiss, motion for judgment on the pleadings, motion of summary judgement(amont others - motion to strike, motion to make more definite and certain, motion for judgement on the pleadings, motion to compel discovery, motion for summary judgement
voir dire
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
Opening statements
a brief outline of what the defendant and the plaintiff will try to prove.
Rules of evidence
Rules governing the admissibility of evidence in trial courts.
Relevant evidence
Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only relevant evidence is admissible in court.
Hearsay
Any testimony given in court about a statement made by someone else who was not under oath at the time of the statement
Direct examination
(law) the initial questioning of a witness by the party that called the witness
Cross-examination
Questioning of a witness during a trial or during the taking of a deposition, by the party opposed to the one who produced the witness.
Motion for judgement as a matter of law
a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case
Motion for a directed verdict
In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support her or his claim.
Rebuttal
(law) a pleading by the defendant in reply to a plaintiff's surrejoinder
Rejoinder
(law) a pleading made by a defendant in response to the plaintiff's replication
Closing argument
An argument made after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.
Motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.
Motion for judgement on the pleadings
a final judgment for one side in a lawsuit without trial when a judge finds based on pleadings, affidavits, and depositions that there is no genuine factual issue in the lawsuit
Brief
a condensed written summary or abstract
Writ of execution
a routine court order that attempts to enforce the judgment that has been granted to a plaintiff by authorizing a sheriff to carry it out
Police powers
Inherent powers of state governments to pass laws to protect the public health, safety, and welfare; the national government has no directly granted police powers but accomplishes the same goals through other delegated powers.
Federal form of government
A system of government in which the states form a union and the sovereign power is divided between the central government and the member states
Privileges and and immunities clause
no State can draw unreasonable distinctions between its own residents and those persons who happen to live in other States
Full faith and credit clause
Clause in the Constitution (Article IV, Section 1) requiring each state to recognize the civil judgments rendered by the courts of the other states and to accept their public records and acts as valid
Checks and balances
A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power
Commerce clause
The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.
Bill of Rights
a statement of fundamental rights and privileges (especially the first ten amendments to the United States Constitution)
First Amendment
an amendment to the Constitution of the United States guaranteeing the right of free expression
Second Amendment
right to bear arms
Third Amendment
The government may not house soldiers in private homes without consent of the owner
Fourth Amendment
protects you from unreasonable search and seizure of your home and property
Fifth Amendment
an amendment to the Constitution of the United States that imposes restrictions on the government's prosecution of persons accused of crimes
Sixth Amendment
the constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial.
Seventh Amendment
right to a trial by jury
Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Symbolic speech
nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the first amendment.
Filtering software
A computer program that is designed to block access to certain Web sites based on their content. The software blocks the retrieval of a site whose URL or key words are on a list within the program.
establishment clause
the First Amendment guarantee that the government will not create and support an official state church
Free exercise clause
the First Amendment guarantee that citizens may freely engage in the religious activities of their choice
Search warrant
a warrant authorizing law enforcement officials to search for objects or people involved in the commission of a crime and to produce them in court
Probable cause
(law) evidence sufficient to warrant an arrest or search and seizure
due proccess clause
Part of the 14th Amendment which guarentees that no state deny basic rights to its people
Equal protection clause
14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination
Business Ethics
ethical or unethical behaviors by employees in the context of their jobs
Ethical reasoning
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand.
Categorical imperative
the moral principle that behavior should be determined by duty, A concept developed by the philosopher Immanuel Kant as an ethical guideline for behavior. In deciding whether an action is right or wrong a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
Principle of rights
an ethical principle that holds that you should never take any action that infringes on others; agreed-upon rights
Utilitarinism
the idea that the goal of society should be the greatest happiness for the greatest number of its citizens
Cost-benefit analysis
economic model that compares the marginal costs and marginal benefits of a decision
Corporate social responsibility
the obligation of organization management to make decisions and take actions that will enhance the welfare and interests of society as well as the organization
Compensatory damages
(law) compensation for losses that can readily be proven to have occurred and for which the injured party has the right to be compensated
Punitive damages
(law) compensation in excess of actual damages (a form of punishment awarded in cases of malicious or willful misconduct)
fradulent Misrepresentation
Occurs when one party to a contract is not given full or accurate information by the other party about the contract subject matter, Intentional misrepresentation of material fact, reasonably relied on by plaintiff resulting in damages
Trespass to land
to be on the land of another without right or permission of the owner
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.
Disparagement of property
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.
Slander of quality
The publication of false information about another's product, alleging that it is not what its seller claims.
Trade libel
The publication of false information about another's product, alleging it is not what its seller claims; also referred to as slander of quality.
Slander of title
The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner.
Cyber torts
torts committed via the internet
Negligence
1. That the defendant owed a duty of care to the plaintiff.
2. The the defendant breached that duty.
3. That the defendant's breach caused the plaintiff's injury.
4. That the defendants breach caused the plaintiff's injury and that injury was forseeable.
Business invitees
on the premises fr the potential financial benefit of the occupier
Malpractice
a wrongful act that the actor had no right to do
Causation in fact
An act or omission without which an event would not have occurred.
Proximate cause
is the cause that immediately and directly results in a specific event. if a person can eleminate any one of the 4 elemants, the lawsuit will not be successful.
Assumption of risk
doctrine under which a person cannot recover for injuries received from a dangerous activity to which she voluntarily exposed herself
Contributory negligence
(law) behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence
Comparative negligence
(law) negligence allocated between the plaintiff and the defendant with a corresponding reduction in damages paid to the plaintiff
Res ipsa loquitur
a rule of evidence whereby the negligence of an alleged wrongdoer can be inferred from the fact that the accident happened
Good samaritan statues
relieve you of some liability when reasonable care is used
dram shop acts
statutes adopted in many states that impose strict liability upon tavern owners for injuries to third parties caused by their intoxicated patrons
State Jurisdiction
1. Resident 2. (while within boundaries of state) 3. Long arm statue.
Federal Jurisdiction
1. Federal statute 2. Constitution(U.S.)
3. Diversity of Citizenship($75,000 or more)
In rem jurisdiction
adj. from the Latin "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court has jurisdiction, and enforcement of a judgment must be upon the property and does not follow a person. "In rem" is different from "in personam," which is directed toward a particular person.
Burden of proof
The preponderance of evidence which means more likely then not.
When do constitutional law apply?
When the matter is between private parties the constitution laws do not apply. Between individuals and government organizations then constitutional laws apply.
Defenses to negligence
Assumption of risk, Superseding cause, and contributory and comparative negligence.
Respondent Superior
1. employee activity within scope of employment
2. employee is negligent
Absolute bar
Negate the claim of negligence(assumption of risk, superceding intervening clause)
Strict product liability
everyone in the commercial chain will be liable for the defect. (manafacturer, distrubutor, retailer) *end user is not in the commercial chain. Refurbishing makes you in the commercial chain.
Dave Jefferson is a ten-year old. For no reason, For no reason, Dave kicked down six-year old Evans. Pete was seriously injured. A claim for relief has been asserted by Pete's parents for thier medical and hospital costs and for Pete's injuries. If the claim is asserted Dave's parents, the most likely result is that they be found:
liable because Dave has acted improperly.
If the claim is asserted against Dave, the most likely result is that he will be found:
liable because he intended to knock Pete down.
Is strict liability hold a claim if the product or service in question is:
1. abnormally dangerous
What is the importance of common law?
precedents are determined under stare decisis. Courts of law and courts or equity have been combined.
State level appeal eligibility
automotic appeal based on procedure/law. appeal cannot be made on a error of fact. Car accident example. procedure - wrong court date. law - issue of law is wrong. U.S. Supreme Court appeal is still possible with permission(write of certerori)
Jurisdiction
The power to speak the law.
Torts(Wrongs)
Wrongs
Strict liability
Liability without fault. (Strict product liability)