Biz Law Chp 2

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Author:
charlie09er
ID:
170111
Filename:
Biz Law Chp 2
Updated:
2012-09-16 13:00:31
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Business Law
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Chapter 2 Key Terms
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  1. Judicial Review
    • the process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch
    • enables this branch to act as a check on the other 2 branches of govt
  2. Marbury v. Madison
    • established the power of the judiciary
    • US Supreme case, 1803
  3. Jurisdiction
    • juris - "law"
    • diction - "to speak"
    • "the power to speak the law"
    • before any court can hear a case, it must have jurisdiction over the person (or company) against whom the suit is brought, etc
  4. In Personam Jurisdiction
    personal jurisdiction, over any person or business that resides in a certain geographic area
  5. In Rem jurisdiction
    • jurisdiction over property that is located within its boundaries
    • "jurisdiction over the thing"
  6. Long Arm Statute
    • a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state
    • must demonstrate minimum contacts
  7. Minimum contacts
    Recall the example in the book about a business based in Maine who has a plant in Georgia and sells goods there.  There are enough contacts to establish minimum contacts, therefore, long arm statute
  8. Subject-matter Jurisdiction
    refers to the limitations on the types of cases a court can hear
  9. Probate Court
    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 the custody and guardianship of children
  10. Bankruptcy Court
    handle only bankruptcy proceedings, which are governed by federal bankruptcy law.
  11. Original vs. Appellate Jurisdiction
    the distrinction between the 2 normally lies in whether the case is being heard for the first time
  12. Federal Question
    • a question that pertains to the US Constitution, acts of Congress or treaties; 
    • provides a basis for federal jurisdiction
  13. Diversity of Citizenship
    • whenever a federal court has jursisdiction over a case that does not involve a question of federal law
    • most common type has 2 requirements:
    • 1. plaintiff & defendant must be residents of diff states
    • 2. dollar amount in question must exceed $75K
  14. Sliding-Scale Standard
    used in determining the jurisdiction over an Internet-based defendant
  15. Venue
    • concerned with the most appropriate location for a trial
    • reflects the policy that a court trying a case should be in the geographic neighborhood where the incident leading to the lawsuit occurred
  16. Standing to Sue
    • sufficient stake in a matter to justify seeking relief through the court system
    • also required justiciable controversy (see card 17)
  17. Justiciable Controversy
    a controversy that is real and substantial, as opposed to hypothetical or academic
  18. State Court Systems may include:
    • local trial courts of limited jurisdiction
    • state trial courts of general jursidiction
    • state courts of appeals (intermediate appellate courts)
    • state's highest court (often called state supreme court)
  19. Small Claims Courts
    • inferior trial courts that hear only civil cases involving claims of less than a certain amount
    • generally conducted informally and lawyers are not required
  20. Appellate Courts
    • aka court of appeals or reviewing court)
    • generally do not conduct new trials in which evidence is submitted
    • usually a panel of 3 or more judges who review the records of the court
  21. Question of Fact
    • deals with what really happened in regard to the dispute being tried
    • ex: whether a party actually burned a flag
  22. Question of Law
    • concerns the application or interpretation of the law
    • ex: whether flag-burning is a form of speech protected by the 1st Amendment, etc
  23. 3-Tiered system of Federal Court System
    • US District Courts (trial courts of general jurisdiction)
    • US Courts of Appeals (intermediate courts of appeals)
    • US Surpreme Court
  24. Writ of Certiorari
    • an order issued by the Surpreme Court to a lower court requiring the latter to send it the record of the case for review;
    • 4 of 9 justices my approve it (rule of four)
  25. Litigation
    • the process of resolving a dispute through the court system
    • expensive & time-consuming
  26. Alternative Dispute Resolution (ADR)
    advantage: flexibility, privacy, resolved more quickly
  27. Negotiation
    • simplest form of ADR
    • process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them
  28. Mediation
    • another form of ADR
    • a neutral 3rd party acts as a mediator and works with both sides in the dispute to facilitate a resolution
  29. Arbitration
    • more formal method of ADR
    • an arbitrator (neutral 3rd party of panel of experts) hears a dispute and imposes a resolution on the parties
    • difference: 3rd party hearing teh dispute makes a decision for the parties
  30. Arbitration Clause
    included in a contract specifying that any dispute arising under the contract will be resolved through arbitration rather than through the court system
  31. Arbitrability
    issue of arbitrability - whether the matter is one tha tmust be resolved through arbitration
  32. Early Neutral Case Evaluation
    parties select a neutral 3rd party to evaluate their respective positions
  33. Mini-Trial
    each party's attorney briefly argues the party's case before the other and a panel of reps from each side who have the authority to settle the dispute
  34. Summary Jury Trials
    • parties present their arguments and evidence and the jury renders a verdict
    • verdict is not binding, but acts as a guide to both sides in reaching an agreement
  35. Online Dispute Resolution (ODR)
    • the settlement of disputes in an online forum
    • best for resolving small to medium sized business liability claims

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