Business Law First Test

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administrative law

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Concerns all agencies, boards, commissions, and other entities created by a federal or state legislature and charged with investigating, regulating, and adjudicating a particular industry or issue.

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civil law

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The large body of law concerning the rights and duties between parties. It is distinguished from criminal law, which concerns behavior outlawed by a government.

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common law

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law Judge-made law, that is, the body of all decisions made by appellate courts over the years

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criminal law

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Rules that permit a government to punish certain behavior by fine or imprisonment.

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equity

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The broad powers of a court to fashion a remedy where justice demands it and no common law remedy exists. An injunction is an example of an equitable remedy.

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injunction

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A court order that a person either do or stop doing something

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jurisprudence

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The study of the purposes and philosophies of the law, as opposed to particular provisions of the law

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precedent

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An earlier case that decided the same legal issue as that presently in dispute, and which therefore will control the outcome of the current case.

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private law

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Refers to the rights and duties between individuals that they themselves have created, for example, by entering into a contract or employment relationship

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procedural law

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The rules establishing how the legal system itself is to operate in a particular kind of case.

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public law

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Refers to the rights and obligations of governments as they deal with the nation's citizens, for example, by taxing individuals, zoning neighborhoods, and regulating advertisements

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sovereign

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Refers to the recognized political power whom citizens obey. In the United States, the federal and all of the state governments are sovereigns

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stare decisis

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"Let the decision stand." A basic principle of the common law, it means that precedent is usually binding.

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statute

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A law passed by a legislative body, such as Congress.

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substantive law

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Rules that establish the rights of parties. For example, the prohibition against slander is substantive law, as opposed to procedural law

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writ

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An order from a government compelling someone to do a particular thing.

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affirm

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A decision by an appellate court to uphold the judgment of a lower court.

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alternative dispute resolution

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Any method of resolving a legal conflict other than litigation, such as: negotiation, arbitration, mediation, mini-trials, and summary jury trials

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appellant

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The party who appeals a lower court decision to a higher court.

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appellate court

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Any court in a state or federal system that reviews cases that have already been tried.

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apellee

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The party opposing an appeal from a lower court to a higher court

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arbitration

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A form of alternative dispute resolution in which the parties hire a neutral third party to hear their respective arguments, receive evidence, and then make a binding decision.

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brief

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The written legal argument that an attorney files with an appeal court.

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burden of proof

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The allocation of which party must prove its case. In a civil case, the plaintiff has the burden of proof to persuade the factfinder of every element of her case. In a criminal case, the government has the burden of proof.

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writ of certiorari

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Formal notice from the United States Supreme Court that it will accept a case for review

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challenge for cause

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An attorney's request, during voir dire, to excuse a prospective juror because of apparent bias.

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class action

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A method of litigating a civil lawsuit in which one or more plaintiffs (or occasionally defendants) seek to represent an entire group of people with similar claims against a common opponent

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complaint

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A pleading, filed by the plaintiff, providing a short statement of the claim.

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counter claim

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A claim made by the defendant against the plaintiff.

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cross examination

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During a hearing, for a lawyer to question an opposing witness.

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default judgement

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Court order awarding one party everything it requested because the opposing party failed to respond in time.

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deponent

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The person being questioned in a deposition

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direct examination

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During a hearing, for a lawyer to question his own witness.

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directed verdict

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The decision by a court to instruct a jury that it must find in favor of a particular party because, in the judge's opinion, no reasonable person could disagree on the outcome.

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discovery

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A stage in litigation, after all pleadings have been served, in which each party seeks as much relevant information as possible about the opposing party's case

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error of law

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A mistake made by a trial judge that concerns a legal issue as opposed to a factual matter. Permitting too many leading questions is a legal error; choosing to believe one witness rather than another is a factual matter

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rules of evidence

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Law governing the proof offered during a trial or formal hearing. These rules limit the questions that may be asked of witnesses and the introduction of physical objects

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federal question jurisdiction

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One of the two main types of civil cases that a United States district court has the power to hear. It involves a federal statute or a constitutional provision

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harmless error

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A ruling made by a trial court which an appeals court determines was legally wrong but not fatal to the decision.

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in camera

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"In the judge's chambers," meaning that the judge does something out of view of the jury and the public.

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judgement non obstante verdicto (n.o.v.)

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"Judgment notwithstanding the verdict." A trial judge overturns the verdict of the jury and enters a judgment in favor of the opposing party.

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jurisdiction

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The power of a court to hear a particular dispute, civil or criminal, and to make a binding decision

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litigation

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the process of resolving disputes through formal court proceedings

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mediation

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The process of using a neutral person to aid in the settlement of a legal dispute. A mediator's decision is non-binding

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mini trial

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A form of alternative dispute resolution in which the parties present short versions of their cases to a panel of three "judges."

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modify

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an apellate court order changing a lower court ruling

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modify

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A formal request that a court take some specified step during litigation. A motion to compel discovery is a request that a trial judge order the other party to respond to discovery

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peremptory challenge

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During voir dire, a request by one attorney that a prospective juror be excused for an unstated reason.

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pleadings

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The documents that begin a lawsuit: the complaint, the answer, the counter-claim and reply.

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preponderance of the evidence

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The level of proof that a plaintiff must meet to prevail in a civil lawsuit. It means that the plaintiff must offer evidence that, in sum, is slightly more persuasive than the defendant's evidence.

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reasonable doubt

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The level of proof that the government must meet to convict the defendant in a criminal case. The factfinder must be persuaded to a very high degree of certainty that the defendant did what the government alleges.

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remand

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The power of an appellate court to return a case to a lower court for additional action.

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reply

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A pleading, filed by the plaintiff in response to a defendant's counter-claim.

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reverse

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The power of an appellate court to overrule a lower court and grant judgment for the party that had lost in the lower court.

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summary judgement

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The power of a trial court to terminate a lawsuit before a trial has begun, on the grounds that no essential facts are in dispute

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summary jury trial

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A form of alternative dispute resolution in which a small panel of jurors hears shortened, summarized versions of the evidence

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trial court

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Any court in a state or federal system that holds formal hearings to determine the facts in a civil or criminal case.

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voir dire

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The process of selecting a jury. Attorneys for the parties and the judge may inquire of prospective jurors whether they are biased or incapable of rendering a fair and impartial verdict.

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adjudicate

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To hold a formal hearing in a disputed matter and issue an official decision

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bill

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A proposed statute that has been submitted for consideration to Congress or a state legislature

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common law

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Judge-made law, that is, the body of all decisions made by appellate courts over the years.

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de novo

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The power of an appellate court or appellate agency to make a new decision in a matter under appeal, entirely ignoring the findings and conclusions of the lower court or agency official.

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enabling legislation

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A statute authorizing the creation of a new administrative agency and specifying its powers and duties

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exhaustion of remedies

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A principle of administrative law that no party may appeal an agency action to a court until she has utilized all available appeals within the agency itself.

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promulgate

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To issue a new rule.

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subpoena

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An order to appear, issued by a court or government body

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subpoena duces teccum

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An order to produce certain documents or things before a court or government body.

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attachment

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A court order seizing property of a party to a civil action, so that there will be sufficient assets available to pay the judgment.

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commerce clause

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One of the powers granted by Article I, §8 of the Constitution, it gives Congress exclusive power to regulate international commerce and concurrent power with the states to regulate domestic commerce.

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commercial speech

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Communication, such as television advertisements, that has the dominant theme of proposing a commercial transaction.

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eminent domain

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The power of the government to take private property for public use

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equal protection clause

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Part of the Fourteenth Amendment, it generally requires the government to treat equally situated people the same.

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14th amendment

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fundamental rights

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In constitutional law, those rights that are so basic that any governmental interference with them is suspect and likely to be unconstitutional

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judicial activism

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The willingness shown by certain courts (and not by others) to decide issues of public policy, such as constitutional questions (free speech, equal protection, etc.) and matters of contract fairness (promissory estoppel, unconscionability, etc.).

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judicial restrain

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?

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judicial review

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The power of the judicial system to examine, interpret, and even nullify actions taken by another branch of government.

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preemption

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The doctrine, based on the Supremacy Clause, by which any federal statute takes priority whenever (1) a state statute conflicts or (2) there is no conflict but Congress indicated an intention to control the issue involved

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based of supremecy clause

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supremecy clause

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From Article VI of the Constitution, it declares that federal statutes and treaties take priority over any state law, if there is a conflict between the two or, even absent a conflict, if Congress manifests an intent to preempt the field.

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Articl VI of the Constitution

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takings clause

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Part of the Fifth Amendment, it ensures that when any governmental unit takes private property for public use, it must compensate the owner.

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5th amendment

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assault

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An intentional act that causes the plaintiff to fear an imminent battery.

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battery

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The intentional touching of another person in a way that is unwanted or offensive.

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compensatory damages

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Those that flow directly from the contract.

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contribuatory negligence

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A rule of tort law that permits a negligent defendant to escape liability if she can demonstrate that the plaintiff's own conduct contributed in any way to the plaintiff's harm.

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defamation

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The act of injuring someone's reputation by stating something false about her to a third person. Libel is defamation done either in writing or by broadcast. Slander is defamation done orally.

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element

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A fact that a party to a lawsuit must prove in order to prevail.

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false imprisonment

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The intentional restraint of another person without reasonable cause and without her consent

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intentional tort

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An act deliberately performed that violates a legally imposed duty and injures someone.

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justification

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A criminal defense in which the defendant establishes that he broke the law to avoid a greater harm.

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negligence per se

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Violation of a standard of care set by statute. Driving while intoxicated is illegal; thus, if a drunk driver injures a pedestrian, he has committed negligence per se.

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res ipsa loquitur

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A doctorine of tort law holding that the facts may imply negligence when the defendant had exclusive control of the thing that caused the harm, the accident would not normally have occurred without negligence, and the plaintiff played no rold in causing the injury

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strict liability

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A tort docorine holding to a very high standard all those who engage in ultrahazardous activity (eg using explosives) or who manufacture certain products

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tort

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a civil wrong, committed in violation of a duty that the law imposes

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ultrahazardous activity

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conduct that is lawful yet unusual and much more likely to cause injury than normal commercial activity

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acquit

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To find the defendant not guilty of the crime for which he was tried.

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actus reus

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The guilty act. The prosecution must show that a criminal defendant committed some proscribed act. In a murder prosecution, taking another person's life is the actus reus

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affidavit

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A written statement signed under oath.

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agent

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a person who acts for a principal

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arson

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Malicious use of fire or explosives to damage or destroy real estate or personal property

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deterrance

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Using punishment, such as imprisonment, to discourage criminal behavior.

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due process clause

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Part of the Fifth Amendment. Procedural due process ensures that before depriving anyone of liberty or property, the government must go through procedures which ensure that the deprivation is fair. Substantive due process holds that certain rights, such as privacy, are so fundamental that the government may not eliminate them.

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5th amendment

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curess

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(1) A criminal defense in which the defendant shows that she committed the wrongful act because a third person threatened her with imminent physical harm. (2) An improper threat made to force another party to enter into a contract.

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embezzlement

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Fraudulent conversion of property already in the defendant's possession

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entrapment

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A criminal defense in which the defendant demonstrates that the government induced him to break the law.

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exclusionary rule

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In a criminal trial, a ban on the use of evidence obtained in violation of the Constitution.

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felony

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The most serious crimes, typically those for which the defendant could be imprisoned for more than a year

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fraud

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Deception of another person to obtain money or property from her

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indictment

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The government's formal charge that a defendant has committed a crime.

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larceny

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Taking personal property with the intention of preventing the owner from ever using it.

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mens rea

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guily state of mind

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misdemeanor

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A less serious crime, typically one for which the maximum penalty is incarceration for less than a year, often in a jail, as opposed to a prison.

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motion to suppress

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A request that the court exclude evidence because it was obtained in violation of the Constitution

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probably cause

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In a search and seizure case, it means that the information available indicates that it is more likely than not that a search will uncover particular criminal evidence.

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retribution

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Giving a criminal defendant the punishment he deserves