Business Law

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Statutes

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are enacted by congress and state legislatures- establish courses of conduct that must be followed by covered parties; state statutes take precedence over state regulations

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Stare decisis

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adherence to precedent set by the supreme court decisions

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Plaintiff

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the party who originally brought the lawsuit

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Defendant

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the party who the lawsuit was brought against

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Appellant

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the party who has appealed the decision of the trial court or lower court

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Appellee/respondent

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the party who must answer the petition’s appeal

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Exclusive jurisdiction-

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hears cases of specialized or limited natures, ex traffic courts, juvenile courts justice of the peace, probate family law, courts that hear misdemeanor criminal law, and civil cases involving lawsuits under a certain dollar amount ($75,000)

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Concurrent jurisdiction

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courts hear cases that are not within the jurisdiction of limited jurisdiction trail courts, such as felonies, civil cases over a certain dollar amount.

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In rem jurisdiction

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does the court have jurisdiction over the property?

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In personem jurisdiction

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does the court have jurisdiction over the particular person? Defendant?

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Diversity jurisdiction

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Diversity of citizenship is one of the factors that will allow a federal district court to exercise its authority to hear a lawsuit. This authority is called diversity jurisdiction. It means that a case involving questions that must be answered according to state laws may be heard in federal court if the parties on the two sides of the case are from different states.

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Jurisdiction

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The power, right, or authority to interpret and apply the law

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Standing/Standing to Sue

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Federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant.

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Venue

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Requires lawsuits to be heard by the court with jurisdiction nearest the location in which the incident occurred or where the parties reside.

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U. S. District Courts

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The federal court system's trials court of general jurisdiction. Powers: impanel juries, receive evidence, hear testimony, decide cases. 94 in the US- one in every state.

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U. S. Courts of Appeals

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The federal court system's intermediate appellate courts. These courts hear appeals from the district courts located in their circuit-12 geographic court locations (can be more than 1 per location) **MO 8th District

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U. S. Supreme Court

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Created by Art 3 of the Constitution. The Supreme court s the highest court in the land and is located in Washington, DC. Their decision is final.

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Litigation

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The process of bringing, maintain, and defending a lawsuit. *difficult, time-consuming, costly, complex procedural rules*

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Complaint/ petition

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Filed by plaintiff to initiate a lawsuit. Must name: parties, allege the ultimate facts and law violated, and contain a "prayer for relief" for a remedy to be awarded by the court.

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Answer

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Defendent must file an answer to the plaintiff's complaint and it is served. Must contain: defendents admittance or denial of the allegations.

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Summons

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Issued after the complaint by court. A court order directing the defendant to appear in court and answer the complaint.

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Access to/ production of documents

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In business cases, a substantial amount of the lawsuit may be based on info contained in documents. Party requests that the other party produce all of the documents relevant to the case.

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Discovery

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Each party engages in various activities to discovers facts of the case from the other party and witnesses prior to trial. Purpose: prevents surprise, preparation for trial, preserving evidence, saving court time, and promotes settlement.

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Deposition

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Oral testimony given by a part or witness prior to trial. Can be given voluntarily or pursuant to a subpoena.

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Interrogatories

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Written questions submitted by one party to a lawsuit to another party. Can be really detailed. In addition certain documents might be attached to the answers. Party is required to answer the questions in writing within a specific amount of time. The answers are signed under oath

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Physical and mental examinations

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To prove the extent of injuries from an accident.

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Appeal on court's interpretation of law

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An appelett court reverses the decision of a lower court if they find an error of law in the record. Does not reverse finding of fact unless such finding is unsupported by the evidence or is contradicted by the evidence.

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Mediation

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Counselor

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Arbitration

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An impartial third party, an arbitrator, hears and decides a dispute. The arbitrator makes an award.

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Negotiation

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The procedure whereby the parties to a dispute engage in negotiations to try to reach a voluntary settlement of their dispute. Includes offers and counteroffers.

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Federal Arbitration Act

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1925-Arbitration agreements involving commerce are valid, irrevocable and enforceable contracts.

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Supremacy clause

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Clause in the United States Constitution. The clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land". The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict.

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unduly burden interstate commerce

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States may enact laws that protect or promote the public health, safety, morals, and general welfare as long as the law does not interfere with interstate commerce

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Preemption doctrine

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The concept that federal law takes precedence over state or local law.

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Federal statute/ administrative decision:

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always takes precedence over state law

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Power not expressly given to federal government retained by states

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Constitution

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Three criteria required before government can restrict commercial speech:

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must seek to implement substantial government interest; Directly advances that interest; and goes no further than necessary to accomplish its objective

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defamation

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publication requirement-false statement made by one person about another. Def must prove untrue statement –published to a third party

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Slander

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oral defamation of character

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Libel

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a false statement that appears in a letter, newpaper, magazine, book, photo or video etc

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Conversion of personal property

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a tort that deprives a true owner of the use and enjoyment of his or her property by takeing over such prperty and exercising ownership over its rights

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trespass to land;

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if a guests refuses to leave

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false imprisonment

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The intentional confinement or restraint of another person without authority or justification and without the person's consent.

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Assult

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The threat of immediate harm or offensive contact or any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary

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Battery

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Unauthorized and harmful or offensive physical contact with another person. Actual physical contact is unnecessary.

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landowners;

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reasonable care are common areas

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Duty of professionals; standard of care of others in same profession

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The liability of a professional who breaches his or her duty of ordinary care.

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negligence:

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duty, breach, injury, causation (actual and proximate)

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fraud (misrepresentation); elements of

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1. The wrong doer made a false representation of the material fact. 2. The wrongdoer has knowledge that the representation was false and intended to deceive the innocent party. 3. The innocent party justifiable relied on the misrepresentation. 4. The innocent party was injured.

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proximate causation:

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foreseeability; Under the law, a negligent party is not necessarily liable for all the damages set in motion by or the negligent act.

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contributory negligence

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All or None

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comparative negligence

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Partial (McDonalds coffee 20/80) If over 50% negligent thrown out

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strict liability

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Liability without fault. A participant in a covered activity with be held liable for any injuries caused by the activity even if he or she was not negligent. Holds that: 1. There are certain activities that can place the public at risk or injury even if reason care is taken. 2.The public should have some means of compensation if such injury occurs. Ex: wild animals-per tiger/python

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express warranty

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Created when a seller or lessor makes an affirmation that the goods he/she is selling or leasing meet certain standards of quality, description, performance, or condition. Not required to make such warranties. ** Basis of the Bargain

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implied warranty of merchantability

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Unless properly disclosed a warranty is implied when sold or leased goods are fir for the ordinary purpose for which they are sold or lease and other assurances. Does not apply to sales or leases by non-merchants or casual sales.

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implied warranty of fitness for a particular purpose

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A warranty that arises where a seller or lessor warrants that the goods with meet the buyers or lessees expressed needs. Breached if the goods do not meet the buyer's or lessee's expressed needs. Applies to both merchant and non-merchant sellers and lessors