Business Law

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Business Law
2010-09-12 20:04:53
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Unit 1 Test
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  1. Played a role in the creation of the US government
    Iroquois Native Americans
  2. The obligation to decide current cases based on previous rulings
  3. The accumulation of precedent; judge-made law
    Common Law
  4. A law passed by a legislative body
  5. A court's power to fashion a remedy, such as an injunction, which the common law does not provide.
  6. Court order to stop doing something
  7. The supreme law of the land, adopted in 1788
    United States Constitution
  8. Congress (House of Representatives & Senate)
    Presidential Office
    Federal Courts
    3 branches of government in the US
  9. 1) Establishes the state government
    2) Guarantees the rights of state residents
    What the State Constitution does
  10. 1) Establishes the 3 branches of government and what laws they can pass and duties they have
    2) Ensures that the states retain all power not given to the national government
    3) Guarantees basic rights to the American people
    3 basic things the US constitution does
  11. Guarantees the right of free speech, free press and the free exercise of religion
    1st Amendment in the US Constitution
  12. Protects the rights of any person accused of a crime
    4th, 5th and 6th Amendments in the Constitution
  13. Executive (the governor)
    Court System
    Government established by each state
  14. Two levels of government
  15. Constitutions
    Common Law
    Administrative Law
    Other Sources (treaties & executive orders)
    Sources of Contemporary Law
  16. The principle that precedent is binding on later cases; means "let the decision stand"
    Stare Decisis
  17. Created principles of equity
    Chancellor in England
  18. There is no jury in an equity case
  19. Passes statutes, ratifies treaties and creates administrative agencies
    Federal Legislative Branch
  20. Proposes statutes, signs or vetoes statutes, oversees administrative agencies and issues executive orders
    Federal Executive Branch
  21. Interpret statutes, create limited federal common law and review the constitutionality of statutes and other legal acts
    Federal Judicial Branch
  22. Passes statutes on state law and creates state agencies
    State Legislative Branch
  23. Proposes statutes, signs or vetoes statutes, oversee state agencies and issues executive orders
    State Executive Branch
  24. Creates state common law, interpret statutes and review constitutionality of statutes and other acts
    State Judicial Branch
  25. Concerns behavior so threatening that society outlaws it altogether
    Criminal Law
  26. The government prosecutes the person who violated a criminal law
  27. Regulates the rights and duties between parties
    Civil law
  28. A person has to file a civil lawsuit
  29. Defines the rights of people
    Substantive Law
  30. Establishes the processes for settling disputes
    Procedural Law
  31. The rights and obligations of governments as they deal with the nation's citizens
    Public Law
  32. Regulates the duties between individuals
    Private Law
  33. The philosophy of law
  34. Law is what the sovereign says that it is
    Legal Positivism
  35. The recognized political power, whom citizens obey
  36. The law must have a moral basis; an unjust law is no law at all
    Natural Law
  37. It doesn't matter what is written as law, what counts is who enforces that law and by what process
    Legal Realism
  38. The person who is suing
  39. The person being sued
  40. Indicates where to find the case in a law library
    Legal citation, underneath the case name
  41. A lawyer who handles court cases
  42. The process of filing claims in court and ultimately going to trial
  43. Any other formal or informal process used to settle disputes without resorting to a trial
    Alternative dispute resolution
  44. Negotiation, Mediation and Arbitration
    Examples of Alternative Dispute Resolution
  45. A neutral party attempts to coax the two disputing parties toward a voluntary settlement
  46. 1) Maintain control of the process and can speak freely
    2) Do not need to fear conceding too much because no settlement takes effect until both parties sign
    3) All discussions are confidential
    Advantages of Mediation
  47. A 3rd party is brought in and they are able to impose an award
  48. Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions
    Trial Courts
  49. A court's power to hear a case
  50. Small Claims division
    Juvenile division
    Land division
    Municipal division
    Probate division
    Domestic Relations division
    Types of Trial Courts with Limited Jurisdiction
  51. General Civil division
    General Criminal division
    Types of Trial Courts of General Jurisdiction
  52. Generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law
    Appeals courts
  53. Because of this, the appeals court may require a new trial
    Error of law
  54. The party filing the appeal
  55. The party opposing the appeal
  56. Court of Appeals
    State Supreme Court
    Types of Appellate Courts
  57. Written arguments on the case
  58. Nullified; to turn the loser into a winner
  59. To allow the decision to stand
  60. Federal Question Case & Diversity Cases
    2 kinds of civil lawsuits that are permitted in federal court
  61. A case in which the claim is based on the United States Constitution, a federal statute or a federal treaty
    Federal Question Case
  62. 1) The plaintiff and defendant are citizens of different states and 2) the amount in dispute exceeds $75,000
    Diversity Jurisdiction
  63. Primary trial court in the federal system
    US District Courts
  64. The nation is divided into 94 districts
  65. Bankruptcy Court
    Tax Court
    US Court of International Trade
    US Claims Court - hears cases brought against the US, typically on contract disputes
    Foreign Intelligence Surveillance Court - specialized, secret court, which oversees requests for surveillance warrants against suspected foreign agents
    Other Federal Trial Courts
  66. The president nominates ALL federal court judges and the nominees must be confirmed by the Senate
  67. Intermediate courts of appeals; divided into 11 circuits
    US Courts of Appeals
  68. Highest court in the country
    US Supreme Court
  69. A petition asking the Supreme Court to hear a case
    Writ of certiorari
  70. The documents that begin a lawsuit - consists of a complaint, the answer and sometimes a reply
  71. A short, plain statement of the facts alleged and the legal claims made; filed by the plaintiff's attorney
  72. Inform the defendant of the general nature of the claims and the need to come into court and protect his interest
    The purpose of a complaint
  73. A paper ordering the defendant to answer the complaint within 20 days; the plaintiff's lawyer receives after filing a complaint
  74. A brief reply to each of the allegations in the complaint; must be filed within 20 days of receipt by the defendant's attorney
  75. A decision that the plaintiff wins without a trial because the defendant failed to answer in time
    Default judgement
  76. A second lawsuit by the defendant against the plaintiff
  77. An answer to a counter-claim
  78. One plaintiff represents the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed
    Class action
  79. A formal request to the court to take some step or issue an order
  80. A request that the court terminate a case without permitting it to go further
    Motion to Dismiss
  81. The pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case
  82. Interrogatories
    Production of Documents & Things
    Physical and Mental Examination
    Important forms of discovery
  83. Written questions that the opposing party must answer, in writing, under oath
  84. A chance for one party's lawyer to question the other party, or a potential witness, under oath; lawyers for both parties are present
  85. The person being questioned in a deposition
  86. A request that the court limit discovery
    Motion for a protective order
  87. Both parties are entitled to discover anything that could reasonably lead to valid evidence
  88. A formal quest that the court orders the other party to supply more complete answers to the interrogatories
    Motion to compel answers to interrogatories
  89. A supporting argument; sent with the motion
  90. A device a judge can use in reaching a discovery ruling; the judge views the requested documents alone, with no lawyers present, and decides whether the other side is entitled to view them
    In Camera Inspection
  91. A ruling by the court that no trial is necessary because some essential facts are not in dispute; occurs after discovery
    Summary judgement
  92. As long as there is some evidence supporting each side of a key factual dispute, the court may not grant summary judgement
  93. Presumes that by putting a witness on the stand and letting both lawyers "go at" her, the truth will emerge
    Adversary system
  94. Both plaintiff and defendant have a right to demand a jury trial when the lawsuit is one for money damages
  95. If the plaintiff is seeking a equitable remedy, there is no jury right for either party
  96. The process of selecting a jury; means "speak the truth"
    Voir Dire
  97. A claim that a juror has demonstrated probable bias; each lawyer can make any number of these
    Challenge for cause
  98. The right to excuse a juror for virtually any reason; a limited number by each lawyer
    Peremptory challenge
  99. The plaintiff has the burden of proof
    In civil cases
  100. The plaintiff's burden in a civil lawsuit
    Preponderance of the evidence
  101. In a civil case, the plaintiff must convince the jury that its version of the facts is at least slightly more likely than the defendant's version. Some courts describe this as a "51-49" persuasion
  102. The government's burden in a criminal prosecution
    Beyond a reasonable doubt
  103. When a lawyer asks questions of her own witness
    Direct examination
  104. To ask questions of an opposing witness
  105. Determines what questions a lawyer may ask and how the questions are to be phrased, what answers the witness may give and what documents may be introduced
    Law of evidence
  106. A ruling that the plaintiff has entirely failed to prove some aspect of her case
    Directed verdict
  107. A directed verdict is permissible only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it
  108. judgement notwithstanding the jury's verdict
    Judgement non obstante veredicto (JNOV)
  109. To affirm the outcome but with changes
  110. To nullify the lower decision and return the case for reconsideration or retrial
    Reverse and remand
  111. A mistake by the trial judge that was too minor to affect the outcome
    Harmless error
  112. A violation of a duty imposed by the civil law
  113. Harm caused by deliberate action; the defendant doesn't always intend to cause the harm but the action they followed was intended
    Intentional tort
  114. Injuries caused by neglect and oversight rather than by deliberate conduct
    Negligence and strict liability
  115. False statements that harm someone's reputation
  116. Written defamation
  117. Oral defamation
  118. A fact that a plaintiff must prove to win a lawsuit
  119. Defamatory Statement - statement that is likely to harm another person's reputation
    Falseness - the statement must be false to be defamatory
    Communicated - the statement must be communicated to at least one person other than the plaintiff
    Injury - in slander cases, the plaintiff generally must show injury; in libel cases, the law is willing to assume injury
    Elements of a Defamation Case
  120. Generally a valid defense in a defamation suit because it cannot be proven true or false
  121. Public officials and public figures receive less protection from defamation. They can only win defamation cases by proving actual malice by the defendant.
  122. The defendant knew the statement was false or acted with reckless disregard of the truth
    Actual malice
  123. A witness testifying in a court or legislature my never be sued for defamation
    Absolute privilege
  124. Exists when two people who have a legitimate need to exchange information
    Qualified privilege
  125. The intentional restraint of another person without reasonable cause and without consent
    False imprisonment
  126. Results from extreme and outrageous conduct that causes serious emotional harm
    Intentional infliction of emotional distress
  127. An intentional touching of another person in a way that is unwanted or offensive
  128. Occurs when a defendant does some act that makes a plaintiff fear an imminent battery
  129. Intentionally entering land that belongs to someone else or remaining on the land after being asked to leave
  130. Taking or using someone's personal property without consent
  131. Injuring another person by deliberate deception
  132. Money intended to restore a plaintiff to the position he was in before the injury
    Compensatory damages
  133. Requires a court to settle once and for all, by awarding a lump sum for past and future expenses
    Single recovery principle
  134. Medical expenses
    Lost wages
    Pain & suffering
    How compensatory damages are figured
  135. Intended to punish the defendant for conduct that is extreme and outrageous
    Punitive Damages
  136. The reprehensibility of the defendant's conduct;
    The ratio between the harm suffered and the award; and
    The difference between the punitive award and any civil penalties used in similar cases
    Guideposts when awarding punitive damages
  137. Tortious Interference with a Contract
    Tortious Interference with a Prospective Advantage
    Tortious Interference with Business Relations
  138. The defendant improperly induced a third party to breach a contract with the plaintiff
    Tortious interference with a contract
  139. 1) There was a contract between the plaintiff and a 3rd party;
    2) The defendant knew of the contract;
    3) The defendant improperly induced the third party to breach the contract or made performance of the contract impossible; and
    4) There was injury to the plaintiff
    4 Elements for a Tortious Interference with a Contract
  140. A claim that special circumstances made its conduct fair
    Defense of Justification
  141. 1) It was acting to protect economic interest, such as its own contract with the 3rd party;
    2) It was acting in the public interest, for example, by reporting to a government agency that a corporation was over billing for government services; or
    3) The existing contract could be terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long-term assurances because the other side could end it at any time
    What needs to be shown to establish justification
  142. Malicious interference with a developing economic relationship
    Tortious interference with a prospective advantage
  143. A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.
  144. A tort if a reasonable person would find the invasion of her private life offensive
  145. Prohibits the use of someone's likeness or voice for commercial purposes
    Commercial Exploitation
  146. Provides broad protection against false statements intended to hurt another business
    The Lanham Act
  147. 1) Duty of Due Care
    2) Breach
    3) Factual Cause
    4) Foreseeable Harm
    5) Injury
    5 Elements for a Negligence case
  148. An act done by someone that is neither intended or expected to hurt anyone, yet someone is harmed
  149. If the defendant could have forseen injury to a particular person, she has a duty to him. If she could not have foreseen the harm, there is usually no duty.
  150. Does not require a bystander to come to the assistance of a person in danger, assuming that the bystander did not create the danger
    Affirmative Duty to Act
  151. A landowner is only liable to a trespasser for intentional injury or gross misconduct.
    Lowest Liability of Landowner's Duty
  152. If there is some man-made thing on the land that may attract children, the landowner is probably liable for any harm
    Occasional Liability - Children
  153. Anyone on the land for her own purpose but with the owner's permission
    Higher Liability - Licensee
  154. Someone on the property as of right because it is a public place or a business open to the public
    Highest Liability - Invitee
  155. Reasonable "person" means someone of the defendant's occupation
  156. Failing to behave the way a reasonable person would under similar circumstances
    Breach of Duty
  157. A minimum standard of care for a particular activity is set by a legislature in order to protect a certain group of people and a violation of the statute injuries a member of that group
    Negligence Per Se
  158. A plaintiff that can show negligence per se need not prove breach of duty.
  159. The defendant's breach physically led to the ultimate harm
    Factual Cause
  160. For the defendant to be liable, the type of harm must have been reasonably foreseeable.
  161. When one of the "dominoes" in the row is entirely unforeseeable
    Superseding Cause
  162. The facts imply that the defendant's negligence caused the accident; the thing speaks for itself
    Res Ipsa Loquitur
  163. 1) The defendant had exclusive control of the thing that caused the harm,
    2) The harm normally would not have occurred without negligence,
    3) The plaintiff had no role in causing the harm
    When Res Ipsa Loquitur applies
  164. The plaintiff must persuade the court that he has suffered a harm that is genuine, not speculative
  165. If the plaintiff is even slightly negligent she recovers nothing
    Contributory Negligence
  166. A plaintiff may generally recover even if she is partially responsible.
    Comparative Negligence
  167. A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured
    Assumption of Risk
  168. A much higher level of liability resulting from ultrahazardous acts or defective products
    Strict Liability
  169. A defendant engaging in an ultrahazardous activity is virtually always liable for any harm that results.
  170. Using harmful chemicals
    Operating explosives
    Keeping wild animals
    Bringing dangerous substances onto property
    Pile driving
    Crop dusting
    Examples of Ultrahazardous Activity