Business Law

Card Set Information

Business Law
2013-10-07 18:50:53
College Business Law

"test yourself questions" definitions
Show Answers:

  1. Law
    Refers to the rules, standards and principles that define the behavioral boundaries for business activities
  2. Constitution
    The fundamental law of a nation
  3. Common Law
    Law made and applied by judges as they resolve disputes among private parties
  4. Case Reporters
    Books publishing the decisions written by judges to explain their rulings in important cases
  5. Precedent
    A decision in a case that is used to guide decisions in later cases with similar fact situations
  6. Stare Decisis
    The use of precedent by courts to guide decisions
  7. Executive orders
    An order by the president to establish or enforce a legal requirement
  8. Public Law
    Laws that affect relationships between people and their governments
  9. Private Law
    Laws that affect relationships between people
  10. Criminal Law
    Legal wrongs or crimes committed against the state or society
  11. Felony
    Serious Class of crime that may be punishable by imprisonment in excess of one year or death
  12. Misdemeanor
    A lessor crime that is neither a felony or treason, punishable by a fine or imprisonment
  13. Reasonable Doubt
    Used in criminal law cases, shows the jury there is no reasonable doubt that the defendant is guilty
  14. Civil Law
    Law concerned with the rights and responsibilities that exist among members of society or between individuals and the government in noncriminal matters
  15. Preponderance of the evidence
    Used in civil trials, the burden of persuasion to win a verdict requires that the plaintiff prove its claim by having the majority or bulk of the evidence on its side
  16. Substantive Law
    Includes common law and statutory law that define and establish legal rights and regulate behavior
  17. Procedural law
    the rules of the court system that deal with the manner in which lawsuits are initiated and go forward
  18. T/F State constitutions must be approved by Congress
  19. When a court decides a common law case it usually relies on _________ from earlier decisions under the doctrine of ________
    • Precedent
    • Stare Decisis
  20. When the president and Congress agree to bind the United States to an international agreement, the agreement is called:
    A) An executive Order
    B) A constitutional amendment
    C) A uniform act
    D) A treaty
    D) A treaty
    (this multiple choice question has been scrambled)
  21. Ethics
    Rules or standards governing the conduct of members of a profession and how standards are put into action within an organization
  22. Integrity
    Living by a moral code and standard of ethics
  23. Morality
    Conformity to rules of correct conduct within the context of a society, religion or other institution
  24. Compliance Program
    Under the federal Sentencing Guidelines, a company that maintains a compliance program with regulations that apply to the company will be subject to less punishment in case of violations of the law than if there is no good-faith effort to have internal procedures to help ensure that the law is followed within the organization
  25. Corporate Social Responsibility
    The belief that businesses have a duty to society that goes beyond obeying the law and maximizing profits
  26. Which of the following is not held by the public in low esteem:
    A) Congress
    B) Small business
    C) Law firms
    D) Big business
    B) Small business
    (this multiple choice question has been scrambled)
  27. A person with a strong set of ______ is more likely to be a person of high ______
    • Ethics and morals
    • Integrity
  28. To reduce the severity of penalty in case of prosecution by the government, many companies have adopted_______
    Codes of Compliance
  29. The modern environment of business means that managers in all firms face a variety of ethical, legal social, political, and international issues that make business increasingly complex.
  30. Law is a collection of principles and rules that establish, guide, and alter the behavior of members of society. Rules include both the formal rules (laws) of society and the informal rules as dictated by customs, traditions, and social ethics.
  31. Law and the legal system serve important functions in an orderly society. Law helps to define acceptable behavior. To ensure order, the legal system provides a formal means through which disputes can be resolved. The law maintains the important values of a society. Finally, the legal system provides a way to encourage changes in social consciousness.
  32. Sources of law include the U.S. and state constitutions, Congress and the state legislatures, the judiciary branch, the executive branch, state and federal administrative agencies, and multiple sources that form the international legal environment of business.
  33. Judge-made or common law is the original source of law in this country. The system encourages judges to use prior decisions, or precedents, for guidance in deciding new disputes. The doctrine of stare decisis, standing on precedent, helps give consistency to case law.
  34. Law can be classified on the basis of whether it is public or private, civil or criminal, or substantive or procedural
  35. The public image of big business and of other major institutions is low. Dishonesty is believed to be common. To overcome problems, many companies use codes of ethics, and firms are enforcing compliance programs to help reduce severity of punishment by regulators in case of law violations.
  36. Business ethics involve standards and obligations that persons and firms may uphold in business that go beyond the requirements of the law. Some firms have active corporate social responsibility programs that engage the company in activities not required by law
  37. Doctrine of judicial immunity
    A judge is absolutely immune from suit for damages for judicial acts
  38. Original jurisdiction
    Lower court where disputes are first brought and tried
  39. Appellate jurisdiction
    Where the decisions of a lower court can be taken for review
  40. En banc proceeding
    Legal proceedings before or by the court as a whole rather than before or by a single judge or panel of judges
  41. General jurisdiction
    A power of a court to hear all controversies that may be brought before it
  42. Limited/Special jurisdiction
    The power of a court to hear cases only of particular types where judgments may be issued that only cover certain kinds of disputes
  43. Trial de novo
    "a new" trial, or retrial at an appellate court in which the entire case is examined as though no trial had occurred
  44. Appellate jurisdiction
    The power of a court to revise or correct the proceedings in a case already acted upon by a lower court or administrative agency
  45. Plaintiff
    The party who claims to have suffered an injury that the law can remedy
  46. Defendant
    The party against whom an action or lawsuit is brought
  47. T/F  Most state judges are appointed until age 70, when retirement is usually mandatory
  48. The court that hears suits for money filed against the federal government is called the court of ___________. The court that hears cases involving customs and tariffs disputes is called the court of __________.
    • Federal Claims
    • International Trade
  49. Judicial officials who assist U.S. district court judges in many matters, and may be assigned to hear cases, are called:
    A) magistrates
    B) receivers
    C) clerks
    D) bailiffs
    A) magistrates
    (this multiple choice question has been scrambled)
  50. Jurisdiction
    The right of a court or other body to hear a case and render a judgment
  51. Subject-matter jurisdiction
    Power of a court to lawfully affect the thing or issue in dispute
  52. Federal question
    A question in a case in which one of the parties, usually the plaintiff, is asserting a right based on a federal law
  53. Diversity-of-citizenship
    An action in which the plaintiff and the defendant are citizens of different states
  54. Diversity Jurisdiction
    When parties to a suit are from different jurisdictions (states or nations), it may create a basis for having a case heard in federal court
  55. Amount in controversy
    The damages claimed or the relief demanded by the injured party in a dispute
  56. Personal jurisdiction
    Power of a court to lawfully bind a party involved in a dispute before it
  57. In personam jurisdiction
    The power the court has over the person involved in the action
  58. Summons
    Process through which a court notifies and compels a defendant to a lawsuit to appear and answer a complaint
  59. Service of process
    In the pleadings stage, the delivery of the complaint to the defendant either to her personally or, in most jurisdictions, by leaving it with a responsible person at her place of residence
  60. Default judgment
    Judgment entered against a party who failed to appear in court to defend against a claim brought by another party
  61. Personal Service
    In the pleading stage, personal service of the complaint is accomplished by physically delivering it to the defendant
  62. Long-arm statute
    A state statute permitting courts to obtain personal jurisdiction over nonresidents as long as the requirements of the stature are met
  63. In rem jurisdiction
    An action taken by a court against the property of the defendant
  64. Exclusive jurisdiction
    The power of a court over a particular subject matter as provided by statute to the exclusion of other courts
  65. Concurrent jurisdiction
    When two different courts are each empowered to deal with the subject matter at issue in a dispute
  66. Conflict-of-law/
  67. Body of law establishing the circumstances in which a state or federal court shall apply the laws of another state, rather than the laws of the state in which it is sitting, to decide a case before it
  68. Venue
    The geographic area in which an action is tried and from which the jury is selected
  69. Forum
    A public place where a trial or judicial proceeding is held
  70. Forum non conveniens
    A rule that allows a court, in equity, to decline jurisdiction over a case when it believes that the matter would be better resolved in another forum
  71. In some cases that would normally be heard in state court, and in which state law applies, the cases will be heard in federal court on the basis of __________
    Diversity of citizenship
  72. T/F  In Erie Railroad Co. v. Tompkins, the Supreme Court held that federal courts should apply federal common law in suits involving parties from multiple states.
  73. The law that states have that help state courts obtain jurisdiction over out-of-state business defendants is called ___________
    Long-arm statute
  74. When a court obtains jurisdiction over property, it is called ____________ jurisdiction
    In rem
  75. Civil litigation involves the use of law and the legal process to resolve disputes among businesses, individuals, and governments. Litigation through the court systems provides a means of resolving disputes without the need to resort to force.
  76. Most U.S. judges are attorneys. It is their responsibility to uphold the legal system's reputation for honesty and impartiality. Federal judges are nominated by the president and confirmed by the Senate. They enjoy lifetime employment once appointed. State judges are appointed or elected.
  77. The court system is made up of the state court systems and the federal court system. Most courts follow the Federal Rules of Civil Procedure to govern the important procedural aspects of the litigation process.
  78. In the study of the court system, the most basic notion is the concept of jurisdiction. The term jurisdiction means "the power to speak of the law" A court must have jurisdiction to hear and resolve a dispute. A court's jurisdiction is divided into two basic categories: subject-matter jurisdiction and personal jurisdiction
  79. Subject-matter jurisdiction is a constitutional or statutory limitation on the types of disputes a court can resolve. Typical subject-matter constraints include minimum requirements on the amount in controversy in the dispute and restrictions on the types of disputes the court has authority to resolve
  80. The jurisdiction of a court varies according to its position in the court system and which court system it is in. Courts of original jurisdiction in the federal and the state court systems are trial courts. They have authority to hear virtually any kind of dispute and provide any kind of relief. Courts with appellate jurisdiction have the power to review cases decided by courts below them. Most state court systems and the federal court system have two levels of appellate courts. The highest appellate court in the federal system is the U.S. Supreme Court
  81. The federal court system has limited subject-matter jurisdiction. The federal courts are limited by the U.S. Constitution to hearing cases involving (1) a federal question or (2) diversity of citizenship cases where the amount in controversy exceeds $75,000 and parties are from more than one jurisdiction. The state court systems can hear most disputes, including federal question cases where Congress has not limited jurisdiction to the federal court system.
  82. In addition to meeting the subject-matter jurisdictional requirements of a court, the parties- the plaintiff and the defendant- must meet personal jurisdictional requirements of the court. A state court's personal jurisdiction is generally limited to the boundaries of its state
  83. Personal jurisdiction normally is not an issue, unless the defendant is not a resident of the state in which the plaintiff wants to bring the action. Jurisdiction of the court over the defendant is obtained y personal service of process. For out-of-state defendants, however, the court may need to exercise jurisdiction under authority of the state's long-arm statute. Generally, the plaintiff must how that the out-of-state defendant is transacting business or has some other interest in the state
  84. When the court is unable to establish its jurisdiction through personal service on the defendant the court may be able to establish in rem jurisdiction over property owned by the defendant that is located within the state
  85. The federal courts in diversity-of-citizenship cases must apply the appropriate state common and statutory law
  86. In state court cases, when the incident in question took place in another state, the court must look to the forum state's conflict-of-law rule to determine what substantive law will apply to resolve the dispute
  87. Litigation must occur in the proper venue. In the interest of fairness, a case may be moved to another forum in the same court system, usually because of strong publicity that makes a fair trial difficult. A case may also be moved because the forum for a trial is not convenient for most parties relevant to litigation
  88. Adversary system of justice
    A legal system in which the parties to a dispute present their own arguments and are responsible for asserting their legal rights
  89. Pleading
    Statement of the plaintiff and the defendant that detail their facts, allegations, and defenses, which create the issues of the lawsuit
  90. Complaint
    Initial pleading by the plaintiff in a civil action that informs the defendant of the material
  91. Motion to dismiss
    A request that a complaint be dismissed, because it does not state a claim for which the law provides a remedy or is in some other way legally deficient
  92. Demurrer
    An older term for a motion to dismiss a claim for failure to state a cause of action
  93. Answer
    The response of a defendant to the plaintiff's complaint, denying in part or in whole the charges made by the plaintiff
  94. Affirmative defense
    Defendant's response to plaintiff's claim that attacks the plaintiff's legal right to brig the action rather than attacking the truth of the claim
  95. Counterclaim
    A claim a defendant asserts against the plaintiff
  96. Deposition
    Sworn testimony, written or oral, of a person taken outside the court
  97. Interrogatories
    In the discovery process, a set of written questions for a witness or a party for which written answers are prepared with assistance of counsel and signed under oath
  98. Contempt of court
    Any act that obstructs a court in the administration of justice or that is calculated to lessen the court's authority
  99. Protective order
    A decree by a court to protect a person or a legal entity against harassment by another person or to protect certain documents against discovery in the litigation process
  100. Summary judgment
    A judgement entered by a trial court as a matter of law, when no genuine issue of law is found to exist
  101. Trial
    A judicial examination of a dispute between two or more parties under the appropriate laws by a court or other appropriate tribunal that has jurisdiction
  102. Jury
    A body of people selected to hear the evidence in a case presented in court and who are given the power to apply the law to the facts established at trial in determining which party prevails in the matter in dispute, whether civil or criminal
  103. Opening statements
    Oral presentations made to the jury by the attorney before the parties present their cases
  104. Direct Examination
    The initial examination of a witness by the party on whose behalf the witness has been called
  105. Cross-examination
    Examination by the attorney representing the adverse party after the other party has examined her witness
  106. Closing arguments
    Oral presentation to the jury by the attorneys after the plaintiff and defendant have stated their cases and before the judge charges the jury
  107. Instructions to jury/charges
    It is the direction or guideline that a judge gives a jury concerning the law of the case being deliberated
  108. Hung jury
    A jury so divided in opinion that it cannot agree upon a verdict
  109. Mistrial
    A trial that cannot stand in law because the court lacks jurisdiction, because of juror misconduct or because of disregard for some other procedural requirement
  110. Judgment as a matter of law/
    Directed Verdict
    Verdict granted by the court on the grounds that the jury could reasonably reach only one conclusion on the basis of the evidence presented during the trial
  111. Judgment notwithstanding the verdict
    Judgment entered by the court for a party following a jury verdict against the party
  112. Equitable remedies
    • The means by which a court enforces a right adjudicated in equity or prevents or redresses the violation of such a right.
    • Remedies include specific performance, injunction, recission, reformation, and declaratory, and declaratory judgment.
  113. Remedies at law
    The legal means by which a right is enforced or the violation of a right is prevented or compensated
  114. Monetary damages
    Money compensation sought or awarded as a remedy for a breach of contract or for tortious acts
  115. Compensatory damages
    A sum awarded to an injured party that is equivalent to her actual damages or injuries sustained
  116. Punitive/exemplary damages
    Compensation awarded to a plaintiff beyond actual damages; awarded to punish the defendant for doing a particularly offensive act
  117. Nominal damages
    A damage award whereby a court recognizes that the plaintiff has suffered a breach of duty but has not suffered any actual financial loss or injury as a result.
  118. Specific performance
    An equitable remedy, whereby the court orders a party to contract to perform his duties under the contract. Usually granted when money damages are inadequate as a remedy and the subject matter of the contract is unique.
  119. Injunction
    An order issued by a court that restrains a person or business from doing some act or orders the person to do something. May be permanent or temporary
  120. Temporary restraining order
    A court order in equity to restrain a particular action while the court considers a request to issue an injunction
  121. Error of law
    A determination by an appeals court that a lower court, usually a trial court, made a mistake in applying the law to the facts that were established at trial.
  122. Written briefs
    Document prepared by an attorney, to be the basis for an appeal of a case to an appellate court. Contains the points of law the attorney wants to establish, with the arguments and authorities to support that view.
  123. Oral arguments
    presentations made in an appeals court or supreme court, usually by attorneys, in support of or objecting to the decision of a lower court as part of the appeals process
  124. Affirm
    In a court of appeals, a decision to declare that a judgment entered by a lower court is valid and will stand as decided
  125. Reverse
    A decision by an appellate court that overturns or vacates the judgment of a lower court
  126. Modify
    In an appeals court, to change some detail of a lower court holding, but to leave the primary finding in place
  127. Majority opinion
    when an appeals court issues an opinion in a case that affirms or reverses the decision of the lower court, a majority of the judges join in an opinion that expresses the legal rationale for the decision of the court.
  128. Concurring opinion
    At the appellate court level, an opinion filed by one or more of the justices in which the justices agree with the majority opinion but state separate views or reasons for the decision
  129. Dissenting opinion
    An opinion written by one or more appellate judges or justices explaining why they disagree with the decision of the majority of the court in a given case
  130. Remand
    The act of an appellate court in sending a case back to a trial court ordering it to take action according to the appellate court's decision
  131. Judgment
    The official decision of a court of law upon the rights and claims of the parties to an action litigated in and submitted to the court for its determination
  132. Res judicata
    A rule that prohibits the same dispute between two parties from being relitigated by a court after final judgment has been entered and all appeals exhausted
  133. Writ of execution
    A writ to put into force the judgement of a court
  134. Garnishment
    A legal process by which a creditor appropriates a debtor's wages or property in the hands of a third party
  135. Arbitration
    A means of settling disputes between parties when they submit the matter to a neutral third party of their choosing, who resolves the dispute by issuing a binding award
  136. Alternate dispute resolution
    A process by which the parties to dispute resolve it through a mechanism other than litigation in court
  137. Arbiter
    In an arbitration proceeding, the person granted the authority to decide a controversy
  138. Award
    The decision that settles an arbitration proceeding.
  139. Negotiation
    Voluntary discussion of the terms and conditions of a proposed agreement or a form of alternative dispute resolution to resolve a dispute and avoid litigation
  140. Mediation
    A form of alternative dispute resolution in which a third party is hired by parties to a dispute with the intent to persuade them to settle their dispute
  141. Mediator
    A neutral person , usually paid, who attempts to help other parties reach an agreement to resolve a dispute
  142. Commerce Clause
    That part of the U.S. Constitution that gives Congress the power to regulate interstate commerce
  143. Necessary and proper clause
    The part of the U.S. Constitution that gives Congress the authority to use various powers to execute its functions under the Constitution
  144. Supremacy clause
    article VI, paragraph 2 of the U.S. Constitution, which states that the Constitution and federal laws are supreme over the laws of all states
  145. Interstate commerce
    The carrying on of commercial activity that affects business in more than one state
  146. Political speech
    In constitutional law, speech that concerns political matters
  147. Commercial speech
    Expressions made by businesses about commercial matters
  148. Exclusionary rule
    Under the Fourth Amendment, as interpreted by the courts, evidence that has been gathered in violation of the search-and-seizure rules cannot be used against a defendant at trial
  149. Self-incrimination
    The rule that a witness is not bound to give testimony that would incriminate him with respect to a criminal act
  150. Just compensation/
    takings clause
    The portion of the Fifth Amendment that states "nor shall private property be taken for public use, without just compensation" The requirement that when the government uses its power to force a private party to give up a property interest, fair market value should be paid
  151. Eminent domain
    The power of the government to take private property for public use for fair compensation
  152. Regulatory takings
    When a government action results in a reduction in the value of private property
  153. Excessive fines
    An excessive penalty that is held to violate the Eight Amendment. This occurs when a fine or penalty, is to large relative to the legal violation that occurred
  154. Due process
    Constitutional limitation requiring that a person not be deprived of life, liberty, or property without a fair and just hearing
  155. Equal protection clause
    Section 1 of the Fourteenth Amendment to the Constitution, providing that states treat all persons subject to state laws in a similar manner
  156. Crime
    Violation of the law that is punishable by the state or nation.
  157. White-collar crimes
    a wide range of nonviolent crimes, often involving cheating or dishonesty in commercial matters.  Ex: fraud, embezzlement, and insider trading
  158. Actus reus
    "guilty act." the wrongful deed that constitutes the physical commponent of a crime; usually must be joined with mens rea to establish criminal liability
  159. Mens rea
    "guilty mind" or "state of mind"
  160. Criminal negligence
    this is gross negligence so extreme that it is punishable as a crime.  For example, involuntary manslaughter can be based on criminal negligence, such as when an extremely careless automobile driver kills someone
  161. Miranda rights
    the doctrine that a criminal suspect in police custody must be informed of certain constitutional rights before interrogation
  162. Statute of limitations
    a statute setting maximum time periods from the occurrence of an event, during which certain actions can be brought or rights enforced.  If an action is not filed before the expiration of that time period, the statute bars the use of the courts for recovery
  163. Toll
    what you have to pay the troll to enter the boy's soul (or...refers to a time period, usually set by statute, required to meet an obligation or to be met for a right to exist, such as a statute of limitation that must be met to have the right to have a cause of action.  If something has been tolled, the right has been lost.)
  164. Entrapment
    a law-enforcement officer's inducement of a person to commit a crime, by fraud or undue persuasion, in an attempt to bring a criminal prosecution against that person.  It provides an affirmative defense that the crime would not have been committed but for the set up.
  165. Warrant
    a judicial authorization for the performance of an act that would otherwise be illegal
  166. Probable cause
    reasonable ground to believe the existence of facts warranting the undertaking of certain actions, such as the arrest or search of a person
  167. Grand jury
    a body of people, often 23, who are chosen to sit periodically for at least a month and as long as a year to decide whether to issue indictments.  If evidence presented by the prosecutor is sufficient, an indictment will issue.  The jury may screen possible charges and may participate in an investigation that may lead to an indictment.
  168. Indictment
    a formal written charge issued by a grand jury asserting that the named person has committed a crime
  169. Arraignment
    this is the initial step in a criminal prosecution; the defendant is brought before the court to hear the charges and enter a plea
  170. Nolo contendere
    a party pleads no contest
  171. Plea bargain
    a negotiated agreement between a prosecutor and a criminal defendant for the defendant to plead guilty to a lesser offense or to only one of multiple charges in exchange for concessions such as a lighter sentence for a dismissal of the other charges
  172. Double Jeopardy
    when a defendant is prosecuted or sentenced twice for the same offense.  Double jeopardy is prohibited by the Fifth Amendment
  173. Bribery
    the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of public or legal duties
  174. Economic espionage
    when commercial trade secrets are stolen for use by a competitor; this is specifically in violation of federal law
  175. Embezzlement
  176. Mail fraud
    an act of fraud using the Postal Service, as in making false representations through the mail to exploit another party
  177. Money laundering
  178. RICO
    a law designed to attack organized criminal activity by prosecuting persons who participate or conspire to participate in racketeering.  The federal RICO statute of 1970 applies to activity involving interstate or foreign commerce.  Many states have adopted laws -- "little RICO" acts -- based on the federal statute.  The federal and most state RICO acts provide for enforcement not only by criminal prosecution but also by civil lawsuit, in which plaintiffs can use for treble damages
  179. Racketeering
    a pattern of illegal activity such as bribery, that is part of an operation owned or controlled by those engaged in the illegal activity.  RICO extends it to include activities such as mail fraud and securities fraud
  180. Wire fraud
    fraud involving the use of electronic communications, such as by making false representations on the telephone or the Internet to obtain money.  The federal Wire Fraud Act holds that any fraud by wire or other electronic communications, such as radio or television in foreign or interstate commerce is a crime
  181. Anti-money laundering
  182. Sentencing Guidelines
  183. Tort
    an injury or wrong committed with or without force against another person or his property; a civil wrong that is a breach of a legal duty owed by the person who commits the tort to the victim of the tort
  184. Negligence
    the failure to do something that a reasonable person, guided by the ordinary considerations that regulate human affairs, would do or the doing of something that a reasonable person would not do
  185. Due care
  186. Ordinary Care
    the degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken
  187. Omission
    a failure to do something, especially a neglect of duty; leaving something out that may be critical to a decision
  188. Reasonable Person
    the standard which one must observe to avoid liability for negligence; often includes the duty to foresee harm that could result from certain actions
  189. Causation
    the causing or producing of an effect; in law, something that may be related to legal consequences
  190. Res ipsa loquitur
    the thing speaks for itself.  something super obvious.  it is clear that the defendant's actions were negligent and were the proximate cause of the injury incurred
  191. Cause in fact
    an act or omission without which an event would not have occurred.  Courts express this in the form of a rule commonly referred to as the "but for" rule: the injury to a person would not have happened but for the conduct of the wrongdoer
  192. Sine qua non
    the injury would not have happened but for the actions of the defendant
  193. Proximate cause
  194. Substantial factor test
    a standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant's conduct was a major cause of the injury in question
  195. Intervening conduct
    in tort, an independent cause that comes between the original wrongful act and the injury that relieves liability that would otherwise exist for the original act; a legal break in the causal connection
  196. Superseding cause
    the act of a third party, or an outside force, that intervenes to prevent a defendant from being liable for harm due to negligence
  197. Danger-invites-rescue doctrine
    the principle that a tortfeasor who is liable for endangering a person is also liable for injuries to someone who reasonably attempted to rescue the person in danger
  198. Assumption of risk
  199. Exculpatory clause
    a part of a contract that releases one of the parties from liability for their wrongdoings; not favored at laws
  200. Comparative negligence
    a defense to negligence whereby the plaintiff's damages are reduced by the proportion his fault bears to the total injury he has suffered
  201. Contributory negligence
  202. Intentional torts
  203. tortfeasors
  204. Assault
  205. Battery
  206. Consent
  207. Privilege
  208. Self-defense
  209. False imprisonment
  210. Emotional distress/mental distress
  211. Invasion of privacy
  212. Defamation
  213. Slander
  214. Libel
  215. Defamation per se
  216. Absolute privilege
  217. Conditional privilege
  218. Constitutional privilege
  219. Actual malice
  220. Fraud
  221. Intentional misrepresentation
  222. Misstatement
  223. Material fact
  224. Scienter
  225. Privity
  226. Damages
  227. Interference with contractual relations
  228. Interference with prospective advantage
  229. Product Liability
  230. Privity of contract
  231. Caveat emptor
  232. Reasonable care
  233. Strict Liability
  234. Warranty
  235. Express warranty
  236. Implied warranty
  237. Misrepresentation
  238. Failure to warn
  239. Design defect
  240. Risk-utility test
  241. Unknown hazards
  242. Joint and several liability
  243. Bulk-supplier doctrine
  244. Sophisticated user
  245. Ultrahazardous activity
  246. Property
  247. Real property
  248. Deed
  249. Quitclaim deed
  250. Warranty deed
  251. Liens
  252. Special warranty deed
  253. Title
  254. Estate
  255. Fee simple
  256. Mineral rights
  257. Tenancy in common
  258. Joint tenancy
  259. Life estate
  260. Trust
  261. Trustee
  262. Beneficiary
  263. Business trusts
  264. Servitudes
  265. Easement
  266. Profit
  267. Adverse possession
  268. Easement by prescription
  269. Statutes of limitation
  270. Covenant
  271. Leasehold
  272. Landlord
  273. Tenant
  274. Lease
  275. Waste
  276. Police power
  277. Zoning
  278. Trespass
  279. Private nuisance
  280. Public nuisance
  281. Trespass to personal property
  282. Conversion
  283. Misappropriation
  284. Premises Liability
  285. Invitees
  286. Contract
  287. Promise
  288. Express Contract
  289. Implied contract
  290. Offer
  291. Offeror
  292. Offeree
  293. Termination
  294. Option contract
  295. Revocation
  296. Counteroffer
  297. Acceptance
  298. Bilateral contracts
  299. Unilateral contracts
  300. Performance
  301. Mirror image
  302. Consideration
  303. Promisee
  304. Promisor
  305. Legal detriment
  306. Promissory estoppel
  307. Contractual capacity
  308. Void contract
  309. Voidable contract
  310. Ratification
  311. Usury
  312. Unenforceable contracts
  313. Exculpatory agreement
  314. Unconscionable contracts
  315. Covenant not to compete
  316. Reality of consent
  317. Genuine consent
  318. Mistake
  319. Duress
  320. Undue influence
  321. Statute of Frauds
  322. Parol evidence rule
  323. Discharged
  324. Performance
  325. Substantial performance
  326. Material breach
  327. Assignment
  328. Delegation
  329. Third-party beneficiary
  330. Breach of contract
  331. Anticipatory Breach
  332. Repudiation
  333. Rescission
  334. Novation
  335. Accord and satisfaction
  336. Accord
  337. Satisfaction
  338. Impossibility of performance
  339. Impracticability
  340. Frustration
  341. Economic loss rule
  342. Compensatory damages
  343. Expectancy damages
  344. Liquidated damages
  345. Penalty
  346. Mitigate
  347. Restitution
  348. Quasi contract
  349. Quantum meruit
  350. The American legal system is an adversary system of justice. The responsibility for bringing and presenting a lawsuit rests upon the litigants. The system reflects the belief that truth is best discovered through the presentation of competing ideas.
  351. Litigation begins with pleadings. The plaintiff must notify the defendant by service of process that a complaint has been filed with a court. The defendant must answer the complaint with a motion to dismiss, a defense, or a counterclaim, or the plaintiff wins by default. The plaintiff may respond to the defendant's answer with a reply.
  352. Before trial, the discovery process allows the parties to gather evidence. Depositions or interrogatories may be taken from both the parties and the witnesses. The discovery process allows parties to know what the trial is to be about so that few surprises arise. Gathering evidence may cause the parties to settle the case as the likely outcome becomes clear.
  353. At most trials, the defendant has the right to ask for a jury trial. Attorneys discuss with clients the advisability of a jury trial or a trial where the judge hears and determines the entire matter. When a jury is used, it is the finder of fact.
  354. At trial, after opening statements by both parties, the plaintiff presents witnesses and evidence to prove the facts of her case. Witnesses are questioned by both sides. After the cases have been stated, either party can request that the judge give a directed verdict to end the case. In most cases, the matter goes to the jury after closing arguments and instructions by the judge. The jury determines the facts of the case and applies the law as explained by the judge.
  355. The remedies awarded by the courts in resolving civil disputes include monetary damages and equitable relief. Monetary damages include compensatory, punitive, and nominal damages. Equitable remedies include specific performance and injunctions.
  356. A party unhappy with the result may appeal the decision. The court of appeals reviews the case to determine whether any errors were made in the application of the law to the facts as they were determined by the judge or jury. The court of appeals may affirm, reverse, or modify the trial court's decision.
  357. Plaintiffs winning judgments are responsible for attempting to collect the judgment, which is difficult if the defendant leaves the state or has few assets. The plaintiff may have to return to the court to obtain orders to force compliance with the judgement. A writ of execution allows the property of the defendant to be seized to satisfy the judgement.
  358. Arbitration is the most formal ADR process. A decision to enter into arbitration is a binding contract. The parties who agree to arbitration choose an arbitrator, a neutral party who arbitrates the dispute and issues a binding decision, called an award, much like a judge resolves a case.
  359. Arbitration hearings are run much like a trial, but the rules of evidence are not as strict. Each side presents its case to the arbitrator and may call witnesses and experts to testify. An arbitrator's award need not be justified in writing. Appeals of awards to the courts are rarely successful because the parties have agreed to be bound by the decision. Unless fraud or other misconduct by the arbitrator can be shown, the courts are very unlikely to intervene.
  360. Arbitration is often a standard part of employment contracts, insurance and commercial sale contracts, and agreements with stockbrokers.
  361. Negotiation is the least formal kind of ADR. The parties deal directly with each other or do so through attorneys or other agents who represent them in confidential discussions to resolve a matter. The parties exchange information, make offers, compromise, and move toward a formal settlement
  362. Mediation is a more structured form of negotiation a neutral mediator helps the parties come to a resolution of a dispute. A mediator must be agreed upon by both parties. A mediator get the parties to agree on a process, explains the rules, gathers information, outlines key issues, talks to and listens to the parties, suggests options, encourages compromise, and may help draft an enforceable settlement. Mediation is usually confidential.
  363. The commerce clause and the necessary and proper clause give Congress nearly unlimited discretion to regulate and tax business. Unless a statute specifies that certain businesses are exempt, regulations apply to all since even local business has been held to affect interstate business.
  364. States may impose regulations that do no conflict with federal regulations or may impose regulations in areas in which Congress gives them specific regulatory authority, but states may not impose burdens on interstate commerce. Numerous states regulatory and taxing schemes have been limited because they violate the commerce clause of the Constitution.
  365. The taxing power of the federal government is nearly unlimited. Taxes may be used for purposes other than just to raise revenues. They may be used to regulate and may be punitive in nature. The Supreme Court rarely questions the taxing schemes of Congress. State taxing scheme may not discriminate against interstate or international commerce.
  366. Commercial speech is afforded a high level of First Amendment protection. Businesses have the right to participate in political discussion whether or not it concerns an issue that directly affects business
  367. Restrictions on commercial speech are subject to constitutional guidelines concerning strong public necessity. Truthful speech about lawful activities may be regulated only if the regulation would advance a substantial governmental interest and the regulation is no more extensive than is necessary.
  368. Since companies have Fourth Amendment guarantees against unreasonable searches and seizures, law enforcement authorities can be required to obtain warrants for most inspections. The main exception is in the case of closely regulated industries. The business sensibility of requiring an inspector to obtain a warrant for a routine inspection is dubious.
  369. Companies may not withhold documents or testimony requested by prosecutors on the grounds that the evidence might incriminate the company; only individuals may invoke that Fifth Amendment right. Efforts to evade the requirement to testify by holding corporate evidence out of the country will not necessarily work.
  370. When government agencies prevent property from being used in a legitimate manner because of long, unjustified procedural delays, or if agencies impose rules that substantially change the propterty value, compensation may be sought under the just compensation clause of the Fifth Amendment.
  371. The Supreme Court has held that large damage awards by juries against businesses do not violate the Eighth Amendment protection against excessive fines, nor do the violate Fourteenth Amendment due process clause protections of fair play and substantial justice.
  372. The due process clause of the Fourteenth Amendment has been used to extend constitutional protections to matters subject to state regulation. Economic regulations must be shown to be related to a legitimate government interest, such as public safety. The clause is also used to ensure fairness in law enforcement procedures.
  373. The equal protection clause of the Fourteenth Amendment is used to protect individual from suffering a loss of freedom from state laws that discriminate against a particular class of persons, when there is no compelling governmental interest in the law, such as public health or safety.
  374. Crimes are actions that violate a law of the federal or state government that has been declared to be enforceable by criminal penalties. Most crimes are matters of state law
  375. Felonies are more serious crimes for which prison may be imposed. Misdemeanors are lesser crimes that usually are punishable by a year or less in jail or a fine.
  376. For a person to be convicted of a crime, the person must have committed a wrongful act, or actus reus, and must have had the necessary intent or state of mind, or mens rea, to commit the crime.
  377. Criminal acts need not be intentional; they may be based on criminal negligence, a careless disregard of the rights and safety of others, which is a violation of our duty to act with reasonable care.
  378. A criminal case must be prosecuted during the statute of limitations. Other defenses include entrapment-when the state has tricked someone to commit a crime that would no otherwise have occurred- and a failure to allow the defendant to exercise constitutional rights such as be made aware of Miranda rights.
  379. In criminal cases evidence must be handled with special care to ensure that it has not been tainted. If not treated properly, it will be excluded from trial.
  380. Unless a person is caught in the act of committing a crime, there is usually a warrant issued for arrest. Judges or magistrates issue arrest warrants based on presentation of probable cause by law enforcement officials
  381. When a person is arrested, there will be an arraignment before a judge or magistrate to read the charges. In serious cases, there may be a grand jury used to issue an indictment. Parties may plead guilty, no contest, or not guilty.
  382. Most cases, especially misdemeanors, are settled by pleas without a trial. Judges must approve plea bargain agreements. If there is a trial and the jury finds the defendant innocent of the charge, there may not be another trial on that charge.
  383. White collar crimes include a wide range of actions where persons or corporations are accused of violating federal or state statutes that concern the abuse of business processes.
  384. Areas in which white collar crimes occur include: antitrust, bankruptcy fraud, bribery, counterfeiting, credit card fraud, computer and internet fraud, economic espionage, embezzlement, environmental law, financial fraud, government fraud, healthcare fraud, insider trading, insurance fraud, mail fraud, money laundering, securities fraud, tax evasion, telephone and telemarketing fraud, and wire fraud.
  385. Congress has imposed Sentencing Guidelines to tell judges the ranges of sentences to be imposed for various crimes. The Supreme Court has held these to be advisory, and they remain controversial, because they cut into the traditional powers of judges to determine punishment in crime cases.
  386. Companies that have taken active steps to ensure compliance with various legal duties can lessen punishment in case a problem does arise. Lesser charges may be filed, and the penalty for violations may be lighter, if the company is shown to have a reasonable compliance program in place.
  387. Tort law concerns legal wrongs inflicted by one party on another by interfering with an interest protected by common law. Tort law changes over time as social values, technology, and business practices change. The primary purpose is to compensate the injured party and to put the burden on the tortfeasor.
  388. Tort liability for negligence arises when the duty of ordinary care- the care expected of a reasonable person under the circumstances- to another person is breached, usually by an act that is the proximate cause, or substantial factor of harm, to the other person.
  389. For a tort to be established, it must be shown that the act or failure to act on the part of the defendant was the cause in fact of the injury sustained. When the causation appears to be clear, the doctrine of res ipsa loquitur applies. After the cause is shown, then proximate cause in the logical sequence of events leading to the injury must be established. Liability ay be avoided if some intervening conduct by another party becomes the superseding cause of the injury that occurred.
  390. A defendant in a negligence case may pose a defense of assumption of the risk on the part of the plaintiff. The plaintiff knew or should have known the risk, or may have accepted it by signing a liability waiver. There may also be a comparison of the behavior of the plaintiff and defendant under the rule of comparative negligence.
  391. Intentional torts are based on willful misconduct that invades the rights of another and causes injury. The rights can be the rights of persons to be safe and secure in their person or in their property. Wrongdoers will be expected to pay damages to compensate for injuries.
  392. Intentional interference with personal rights includes assault, when a person is placed in fear of bodily harm or offensive contact; battery, or unlawful physical contact without consent; false imprisonment, which is detaining someone within boundaries against his or her will; emotional distress, caused by outrageous conduct; invasion of privacy, which is a violation of a person's right to be free from unwanted exposure; defamation or false communication that injures a person's reputation, including slander and libel; and malicious prosecution, or the unjustified use of the law to injure another.
  393. Defenses raised in tort lawsuits include truth in defamation cases; consent, or that the plaintiff had approved of the interference that led to injury; privilege, or that the defendant had a right to take the actions now challenged, including self-defense in case of assault; inflicting injury on another to defend someone else being attacked; and physically defending property. Force used should be no more than reasonable under the circumstances. The law places a higher value on human life than on property.
  394. Misrepresentation, or fraud, is a general category of tort that can be intentional or based on negligence. When intentional, it must be shown that there was an intent to provide misleading information to convince someone to do something they would not have otherwise, and that the party had good reason to rely on the deceit, which was then the cause of a loss suffered.
  395. The tort of interference with contractual relations occurs when ongoing contractual deals are wrongfully and knowingly interfered with by another party who wants the existing contract to be broken.
  396. Interference with prospective advantage, or prospective economic advantage, is an unreasonable interference in another party's business dealings so as to prevent an ongoing relationship from succeeding.
  397. The rule of negligence in tort dominated product liability the first half of the twentieth century. Still good law, it requires producers to take the care of a reasonable person hen making products to prevent foreseeable injury. The reasonable person is held to the skill of an expert in the industry.
  398. Strict liability for defective products began in contract law based on implied warranty inferred by the courts from a review of the parties' dealings or based on express warranty about the quality of a product.
  399. Strict liability in tort became widely accepted after the 1963 Greenman decision in California Section 402A of the restatement of torts imposes strict liability on the manufacturer when a product in a defective condition unreasonably dangerous to the user or consumer or to his property is sold. Besides a flaw in the product at the time of manufacture, strict liability is imposed for failure to warn of hazards in using the product and defects in the design of the product that makes it less safe than it should be.
  400. The newer restatement(third) of torts, section 2 regarding product defects moves away from a distinction between strict liability and negligence. In assigning liability, it encourages the use of a risk-utility analysis for products that are defective at the time of manufacture due to poor design or due to failure to warn of dangers.
  401. Many strict liability suits have concerned unknown hazards such as those associated with asbestos, where the danger did not become known until many years later. When claims of thousands of persons exceed the funds of the defendants, the courts strive to find fair ways to allocate money among claimants. When many companies have made the same product, they may be held jointly and severally liable, potentially requiring all producers to pay compensation.
  402. A defense that may be raised in product liability suits is negligence by the user, which can include product misuse. There also can be assumption of risk by the consumer, especially for products, such as medicinal drugs, that are beneficial but have unavoidable side effects and products, such as tobacco and alcohol, that are legal but have bad effects. Producers do not have to constantly warn sophisticated buyers, such as producers, about all dangers in products.
  403. Strict liability in tort has long been imposed on those who engage in ultrahazardous activities, such as using explosives, and on those who handle unusually dangerous substances, such as toxic chemicals. If the party involved in the ultrahazardous activity causes an injury to an innocent party, regardless of the degree of care taken to prevent harm, liability to imposed.
  404. Property law focuses on real property, which is land, houses, and things attached to the land; and personal property, which is movable property, such as furniture, books, and cars. The owners of property have legal interests or rights in property. Property rights are limited by common law and by statutes that restrict the use of property.
  405. Written deeds are used to transfer ownership interests in real property. Many forms of deeds exist that provide different levels of assurances of the quality of ownership rights being provided. Titles to property, which constitute the formal right of ownership, are passed by deeds.
  406. The strongest form of ownership of real property is fee simple, which is how most real estate in the United States is held. When more than one party owns real estate, it is often held in a tenancy in common, where the parties have an undivided interest that passes to their heirs on death; or it may be in a joint tenancy, which is also an undivided interest, but the other owner has a right to survivorship.
  407. Property is often held in a trust for a business so as to help protect the property against being lost if the business has financial problems. Trusts are also used by people who wish to keep property under certain controls for the beneficiary of the trust.
  408. Servitudes are restrictions or requirements imposed on the use of property, most commonly easements and covenants. Such legal rights are held to run with the land, as they usually stay in place when title to property passes. Most easements grant the right to another party to enter property for some purpose, such as to have access to power lines. Covenants are often used in real estate developments in impose requirements on the design of houses and characteristics of the property that must be maintained.
  409. Real estate may be leased to tenants for any terms the parties agree on so long as to does not conflict with state law. Any details not covered in a lease fall under state landlord-tenant law. The parties have obligations. Tenants may not abuse the property, and landlords must make certain key repairs in a timely manner and must not invade the privacy of the tenants.
  410. Leases for commercial property tend to be highly specific on many details about the property. Unlike most residential leases, which are often governed by state landlord-tenant statutes, commercial leases are determined by the parties to the bargain and so require care by the parties to the transaction
  411. Governments have the poser of eminent domain. It allows them to condemn private property and take it for public use, so long as fair market value compensation is paid to the owners. Destruction of substantial property value by regulations such as zoning generally not compensable. A controversial form of eminent domain in recent years is the use of eminent domain to turn the property over to a private party for profitable use
  412. Torts against property include trespass, or the unauthorized intrusion on the land of another, and nuisance, which is a substantial and unreasonable interference with the right of persons to use and enjoy their property. A nuisance may be private, in which case a property owner sues, or public, when any people suffer from the interference and a public attorney acts on their behalf.
  413. Other torts include trespass to personal property, which is wrongful interference with the right of persons to use their property in a lawful manner, and conversion, which is the unlawful appropriation (theft) of the personal property of another person.
  414. Property owners may be sued for premises liability by those they have invited to come on their property, such as store customers. If the property owner has been negligent in maintaining the condition of the property and that negligence violates the duty of ordinary care that results in an injury, liability may be imposed. Liability may arise from failure of a property owner to provide reasonable security against criminal attacks.
  415. Basic to the law of contracts is freedom of contract. However, because of public policy goals, state and federal laws place some restrictions on the kinds of contracts businesses can enter into.
  416. Contract law is based on a large body of common or judge-made law. The restatement of contracts is an authoritative document providing a summary of the common law of contract, which is quite consistent across the states.
  417. A contract is a promise or set of promises that creates an agreement between parties. It creates legal rights and duties enforceable under the law.
  418. Under the common law, a contract must meet several elements to be enforceable:
    1. There must be an agreement (offer and acceptance)
    2. The parties to a contract must provide consideration.
    3. The parties must have the legal capacity to contract.
    4. The subject matter of the contract must be legal.
    5. The consent of the parties must be genuine.
  419. An offeror has the right to terminate an offer without warning, before it is accepted, unless there was an option granted, which is a contract in itself, giving the offeree a certain time in which to decide. If an offer is not specifically ended, it is presumed to end in a reasonable time given usual practices in that area of business.
  420. Acceptance of an offer must be clear and, to be effective, must not make changes in the terms offered. When an offeree makes changes to an offer, a new offer, a new offer has been created. If an offeror states that acceptance must follow a specific form, such as signing a piece of paper, then that must be done for acceptance to be effective.
  421. Consideration is something of value bargained for in an exchange. The courts do not care much about the "fairness" of an exchange, only that there has been a voluntary exchange of mutual promises to give something of value. A legal detriment exists for both parties to the contract, so it is not a gift.
  422. A promise that falls short of meeting the terms of a contract may still be held to be enforceable under the doctrine of promissory estoppel. That occurs when a promise is made that the other party can reasonably rely upon in their decision making.
  423. Parties to a contract must have capacity to contract, meaning they must be of legal age and not suffering from a disability that precludes their understanding the matter. The subject matter of a contract must be legal for the courts to be willing to consider enforcement; deals for subjects that are illegal by statute, or that violate public policy, will not be recognized.
  424. Consent must be genuine; no force or duress may be used. If a supposed contract was based on fraud or fraudulent misrepresentation, there was not real consent. This can fall into tort law, which allows greater damages, including punitive damages.
  425. Some contracts must be in writing to fulfill requirements of the Statute of Frauds. They include contracts for the sale of land and real property, promises made in consideration of marriage, contracts that cannot be completed within one year, and promises to pay the debt of another.
  426. Contracts may be discharged, or terminated, in several ways: by performance, through a breach by one or both of the parties to the contract, by the impossibility of performance, by operation of law, or by mutual agreement of the parties.
  427. In the event of a breach of contract, the injured party may ask the court for relief. Most common are money damages to compensate for expenses incurred and for lost profits. The injured party has a responsibility to minimize losses from the breach. The courts can also provide equitable relief, such as specific performance, in certain cases.
  428. Sworn, in-person testimony of a witness recorded by a court reporter is called ______
  429. A case begins by the _________ filing a ______ against the ________ who may have claims and files a _________
    • Plaintiff
    • Complaints
    • Defendant
    • Counterclaim
  430. T/F  Parties are not allowed to see "critical documents" that support an argument being made by the opposition in a case
  431. T/F  A party may not demand a physical examination of an opposing party in any legal proceeding due to constitutional protection of personal privacy
  432. If a court issues an order of indefinite length to a party, instructing them to do something or not to do something it is called ______
    Permanent Injuction
  433. The process used to select members of a jury is called ______ an attorney may have the right to _____ the selection of a person to a jury
    • Voir Dire
    • Challange
  434. T/F  After a jury return a verdict, the losing party may ask the judge to overturn the verdict by granting a motion for judgment as a matter of law
  435. When parties to a dispute agree to meet before a private decision maker who has authority to impose a binding resolution to the dispute, the process is called:
    A) mediation
    B) arbitration
    C) res judicata
    D) negotiation
    B) arbitration
    (this multiple choice question has been scrambled)
  436. T/F  The majority of states now require mediators to be licensed, which is usually accomplished by passing a state examination
  437. At the end of arbitration, the decision is called _______
  438. T/F   If an arbitrator makes a mistake of law, not a mistake of fact, there is a right to appeal the decision to the proper court for review of the decision
  439. T/F   The first 10 amendments to the Constitution are known as The Bill of Rights
  440. With respect to business, the primary issue involving the First Amendment to the Constitution involves _________
    Freedom of Speech
  441. What two kinds of commercial speech are not protected by the First Amendment?
    • Misleading speech
    • Speech about unlawful activities
  442. T/F  Warrantless searches of business property is allowed in some instances
  443. T/F  The power of eminent domain belongs to the federal government only; it may not be used by state or local governments without federal permission.
  444. If a government imposes a regulation that destroys almost all of the value of property, the action is said to be a  __________
    Regulatory takings
  445. T/F  The Equal Protection Clause of the Fourteenth Amendment applies to the federal government, but does not apply to state governments unless they have incorporated it into their state constitution.
  446. T/F Federal Express allowed the IRS to search a package sent by a customer. As a result of the search, the evidence helped lead to the customer's conviction. The appeals court held the evidence was improperly gathered as it violated the right to privacy
  447. When a person is arrested on suspicion of a crime they must be read their ________
    Miranda rights
  448. If a city enacts a law, often called an _______, violations are most likely classified as a ______.
    • Ordinance
    • Misdemeanor
  449. T/F  If rather than go to trial,  a defendant agrees to plead guilty, that is called a plea of nolo contendere
  450. A degree of carelessness amounting to a culpable disregard of rights and safety of others is the definition of _________
    Criminal negligence
  451. The offer of or taking of money, goods, services, or other things of value to influence official actions or decisions is ________
  452. T/F  Federal courts have the ability to impose sentences on convicted felons that do not follow the Sentencing Guidelines exactly
  453. __________ is a pattern of illegal activity, such as bribery or extortion that is part of an enterprise controlled by those engaged in the illegal activity.
  454. T/F  Telemarketing fraud is subject to civil penalties, such as fines and injunctions, but Congress did not provide for criminal penalties
  455. Copying of a genuine item without authorization is called ___________
  456. The elements of a tort based on negligence include a duty of ________ that was __________ by the defendant.
    • Ordinary Care
    • Breached
  457. When the cause of something seems to be the obvious reason for an injury that has been suffered, it is said that the doctrine of _______ may apply
    Res ipsa loquitur
  458. In Palsgraf v. Long Island Railroad, where Palsgraf was injured when there was an explosion at a train station, the New York high court held that the railroad was________
    not liable for her injuries because proximate cause was not established
  459. In some states courts have replaced proximate cause with ___________
    Substantial factor
  460. T/F  For there to be liability in case of assault, there must be some "clearly defined" offensive contact with the body
  461. When playing soccer you collide with another player and break that player's leg. Most likely, you have the defense of
  462. T/F  One may not use deadly force to prevent the theft of property unless there is no reasonable alternative so as to stop the thief
  463. T/F For there to be possible suit for defamation, false information must have been provided to a third party
  464. When there is defamation, if it is spoken, it is called _________ if it is in writing it is called __________
    • Slander
    • Libel
  465. If someone falsely tells other people that you were convicted of armed robbery, that may be a tort called________
    Defamation per se
  466. To establish fraud or intentional misrepresentation, one must show misrepresentation of a ______ fact, and that there was _________ by the plaintiff on the misinformation.
    • Material
    • Justifiable reliance
  467. In establishing fraud, one must show that the defendant knew there was false information being transmitted; that is called _________
  468. Major defenses in product liability suits include ___________ and __________
    • Misuse
    • Assumption of risk
  469. T/F  Strict liability in tort for a defective product requires a showing that the producer failed to exercise all possible care in the preparation and marketing of the product
  470. The old rule "let the buyer beware" is ______
    Caveat emptor
  471. T/F   The courts have held that for strict liability to apply to a producer there must have been some knowledge of the problem at the time the product was made and distributed
  472. If a firm sells a large quantity of toxic chemicals to another firm, which uses the chemical in its production process, and an employee of that firm is injured by the chemical, there may be a defense called __________ or the sophisticated user defense
    bulk-supplier doctrine
  473. T/F   The most common form of real property ownership in the U.S. is fee simple
  474. The right to remove minerals or oil from someone's property is called a _____________- the right to drive across that property to get to another piece of property is called an  __________
    • Profit
    • Easement
  475. T/F  Tenants in common are when two or more people rent property together for a period of at least one year
  476. To gain ownership of land by open occupation of it over time, despite not owning the land, is called ____________
    Adverse possession
  477. When we rent property from someone, our interest is called a ___________
  478. A corporation or a partnership may find it desirable to hold ownership in property though a _______so as to increase the security of ownership
  479. Governments often control the use of land through ____________ and may obtain ownership of land, if the owner does not want to sell, by ___________
    • Zoning
    • Eminent domain
  480. T/F   State and local governments impose land use controls under their police powers
  481. An activity that substantially and unreasonably interferes with the use and enjoyment of land is a ___________
  482. An intentional and wrongful interference with possession of personal property of another without consent is _________
    Trespass to personal property
  483. Something of value or something bargained for in exchange for a promise is called ___________
  484. An exchange of promises is called a ________ contract. When an offer is accepted by performance, it may be called a _______ contract.
    • Bilateral
    • Unilateral
  485. In some circumstances consideration for  promise is not required for the promise to be enforceable. This is called detrimental reliance or ________
    Promissory estoppel
  486. T/F  When a party to a contract has the right to avoid fulfilling the terms of the contract, the contract is said to be voidable.
  487. T/F If one party to a contract accidentally writes in a contract that the price of something is one-tenth of what it was supposed to be, there is said not to be genuine consent to the lower price
  488. If someone points a gun at another person and tells them to sign a contract, there is no real consent due to _________ If someone takes advantage of another person and convinced them to do something they would likely not have done otherwise, there may be found to be__________-
    • Duress
    • Undue Influence
  489. T/F A
  490. An unconscionable contract may violate "public policy" and not be enforceable
  491. Some contracts must be in writing to be enforceable. Such contracts are subject to _______
    Statute of Frauds
  492. The transfer of contract rights to another party is called __________ A transfer of contractual duties to a third party is called __________
    • Assignment
    • Delegation
  493. T/F If both parties to a contract agree that the contract should be terminated without performance, there is said to be a novation.
  494. T/F  If a breach of contract has occurred, the party suffering a loss from the breach has an obligation to mitigate the damages
  495. T/F  A quasi contract is a type of contract that is held to exist when one key term is missing but a court finds that the parties intended to enter into a contract, so one does exist.
  496. If a party does everything required  under a contract except for some small bit, and a dispute arises, the court is likely to find that there has been _______________
    Substantial performance