Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
174 Cards in this Set
- Front
- Back
|
law
|
the rules of the state backed up by enforcement.
|
|
|
rule of law
|
the general and equal application of laws, even to lawmakers
|
|
|
property
|
a legal right that allows you to exclude others from your resources. it makes what is yours "yours."
there can be public property, private property, and common property a bundle of private, exclusive rights in people to acquire, possess, use and transfer scarce resources |
|
|
contract law
|
enables an owner to exchange resources. covers the rules of how owners transfer resources by exchanging them. involve enforceable promises to exchange resources in the future.
law of legally enforceable promises |
|
|
tort law
|
compensates owners whose resources are wrongfully harmed by the actions of others
|
|
|
criminal law
|
punishes those who harm an owner's resources in particular ways
area of law dealing with wrongs against the state as representative of the community at large, to be distinguished from civil law which hears cases of wrongs against persons |
|
|
laws of business organizations
|
identify how individuals can own and use private resources in groups
|
|
|
regulatory law
|
protects ownership and sets limits on private resource use
|
|
|
antitrust law
|
forbids owners from monopolizing classes of resources and sets rules for how businesses can compete to acquire ownership in new resources
|
|
|
securities law
|
regulates the transfer of ownership in certain profit-making opportunities
|
|
|
jurisprudence
|
the philosophy of law, the science of law. the practicial science of giving a wise interpretation of the law.
|
|
|
common law
|
emphasizes the role of judges in determining the meaning of laws
the body of law deriving from judicial decisions as opposed to legislatively enacted statutes and administrative regulation |
|
|
civil law
|
relies more on legislation than judicial decisions for law
the area of law governing the rights and duties between prvate parties as compared with the cirminal law. also describes the system of codifying law in many countries as compared with the judicial orientation of the common law system. |
|
|
public law
|
includes constitutional law, administrative law, and criminal law
classification of legal subject matters that regulates the relationship of individuals and organizations to society |
|
|
substantive law
|
defines the legal relationship of people with other people or between them and the state
a body of rules defining the nature and extent of legal rights |
|
|
procedural law
|
deals with the method and means by which substantive law is made and administered
body of rules governing the manner in which legal claims are enforced |
|
|
legislation
|
formal written laws
|
|
|
statute/act
|
legislation adopted by congress or a state legislature
|
|
|
ordinances
|
laws passed by local governments
|
|
|
codes
|
compilations of legislation at all levels of government
|
|
|
uniform commercial code (UCC)
|
the most significant uniform law for business
most successful attempt to have states adopt a uniform law. this codes purpose is to simplify, clarify, and modernize the laws governing commercial transactions. |
|
|
statutory construction
|
concerns how courts interpret and apply the meaning of legislation
|
|
|
opinions
|
decisions made by judges
|
|
|
administrative agencies
|
an organization, usually a part of the executive branch of government, that is created to serve a specific purpose as authorized by the legislative branch. function is usually characterized as quasi-legislative or quasi-judicial.
|
|
|
apportionment
|
the concept used by states to divide a company's taxable income so that no one state burdens a company with an unfair tax bill
|
|
|
separation of powers
|
the doctrine that holds that the legislative, executive, and judicial branches of government fuction independently of one another and that each branch serves as a check on the others.
|
|
|
commercial clause
|
a provision in Article 1, Section 8 of the U.S. Constitution that grants the federal government the power to regulate business transactions
|
|
|
commercial speech
|
speech that has a business-oriented purpose. This speech is protected under the First Amendment, but this protection is not as great as that afforded to noncommercial speech.
|
|
|
contract clause
|
The constitutional provision that prohibits states from enacting laws that interfer with existing contracts. The Supreme Court has refused to interpret this clause in an absolute manner.
|
|
|
defamation
|
The publication of anything injurious to the good name or reputation of another
|
|
|
dormant commerce clause concept
|
the impact of the commerce clause as a means of limiting state and local governments' powers to regulate business activities
|
|
|
equal protection clause
|
A provision in the 14th Amendment of the US constitution that requires all citizens to be treated in a similar manner by the government unlesss there is a sufficient justification for the unequal treatment
|
|
|
establishment clause
|
A provision in the 1st Amendment of the US constitution that prohibits the federal government from establishing any government-supported religion or church
|
|
|
exhaustion of remedies
|
a concept used in administrative law that requires any party to an administrative proceeding to give the administrative agency every opportunity to reslove the dispute before appealing to the court system
|
|
|
federalism
|
a term used to describe the vertical aspect of the separation of powers. the coexistence of a federal government and the various state governments, with each having responsibilites and authorities that are distinct but overlap, is called federalism
|
|
|
free exercise clause
|
a provision in the first amendment of the US constitution that allows all citizens the freedom to follow or believe any religious teaching
|
|
|
irreconcilable conflicts
|
`when a state or local law requires something different than a federal law or regulation and both laws cannot be satisfied. under commerce clause analysis, the state or local law is declared invalid and void.
|
|
|
libel
|
a defamatory written statement communicated to a third party
|
|
|
malice
|
the state of mind that accompanies the intentional doing of a wrongful act without justification or excuse
|
|
|
minimum rationality
|
a legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause of the US constituion. to satisfy this test, the government needs to demonstrate that there is a good reason for the government's action.
|
|
|
nexus
|
a logical connection
|
|
|
overbreadth doctrine
|
a principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. this doctrine may be utilized to protect consitutional rights, such as freedom of speech, against a wide sweep of some governmental action.
|
|
|
police powers
|
the authority a state or local government has to protect the public's health, safety, morals and general welfare.
|
|
|
preemption
|
a condition when a federal statue or administrative rule governs an issue to the extent that a state or local government is prohibited from regulating that area of law
|
|
|
primary jurisdictiona
|
a doctrine used by reviewing courts to determine whether a case is properly before the courts or whtehr it should be heard by an administrative agency first since an agency might have expertise superior to the courts'
|
|
|
prior restraints
|
a priniciple applicable under the freedom of press and speech clauses of the first amendment to the constitution. the courts have announced decisions that encourage governments to allow the publication or expression of thoughts rather than to restrain such thoughts in advance of their publication or expression.
|
|
|
procedural due process
|
the process or procedure ensuring fundamental fairness that all citizens are entitled to under the US constitution
|
|
|
prohibiting discrimination
|
a standard of review under the Commerce Clause that can invalidate state and local laws. When state and local laws discriminate against or negatively impact inerstate commerce, such laws are invalid and void.
|
|
|
quasi-judicial
|
administrative actions involving factual determinations and the discretionary application of rules and regulations
|
|
|
quasi-legislative
|
this term describes the rule-making functions of administrative agencies
|
|
|
quasi-strict scrutiny
|
a legal test used by courst to test the validity of governmental action, such as legislation, under the equal protection clause of the US constitution. to satisfy this test, the government needs to demonstrate that the purpose of the action is substantially related to an important governmental objective.
|
|
|
strict scrutiny
|
a legal test used by courts to test the validity of governmental action, such as legislation, under the equal protection clause of the US constitution. To satisfy thsi test, the government needs to demonstrate that there is a compelling state interest justifying the government's action.
|
|
|
supremacy clause
|
Article 6 of the US constituion, which states that the constitution, laws, and treaties of the US shall be the supreme law of the land, and shall take precedenc over conflicting state laws
|
|
|
symbolic speech
|
nonverbal expression
|
|
|
undue burden
|
under the civil rights act of `1964 and the Americans with disabilities Act an employer need not take action that is excessively costly or creates excessive inefficieny in order to accomodate an employee's religious beliefs or disabilit.
|
|
|
arbritration
|
submission of a dispute to an extrajudicial authority for decision
|
|
|
arbritrator
|
the individual or panel members authorized by disputing parties to resolve a dispute through the arbritration processs
|
|
|
award
|
the decision announced by an arbritrator
|
|
|
caucus
|
the name used for a private meeting between a mediator and one of the parties involved in a mediation
|
|
|
conflict
|
the common occurence in life when 2 or more points of view exist
|
|
|
de novo judical review
|
a proceeding wherein the judge or hearing officer hears the case as if it had not been heard before
|
|
|
dispute
|
the circumstance when a party in conflict claims the right to do or having something and the other party denies, rejects, or ignores the claim.
|
|
|
focus groups
|
a group acting as a mock jury; attorneys present cases to such a group to get the members' feedback on the merits of the various arguments presented
|
|
|
mandatory arbritration
|
a form of resolving a dispute, as an alternative to litigation, that is required by a statute
|
|
|
Med-Arb
|
an abbreviation for an alternative dispute resolution system that involves parties going through mediation and agreeing to resolve as many issues as possible. these parties agree that any matters not resolved in the mediation process will then be abritrated
|
|
|
mediation
|
an alternative to litigation whereby a third party attempts to assist the disputing parites in reaching a settlement. the third-party mediator lacks authority to impose on the parties a binding solution to the dispute.
|
|
|
mediator
|
an individual who assists disputing parties in their efforts to resolve their differences. mediators must rely on their persuasive abilities since they have no authority to settle the dispute.
|
|
|
negotiation
|
the processs used to persuade or coerce somoene to do or to stop doing something
|
|
|
positional bargaining
|
a method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground. the seller refers to the last offer made as its top dollar.
|
|
|
postdispute arbitraion agreement
|
can be applicable to arbritration, mediation, or other methods of ADR; such a clause is signed by parties that are already in dispute.
|
|
|
predisupute arbriation clause
|
applicable to ADR systems agreed to by contracting parties prior to a dispute arising; usually this clause is a part of the original contract between the parties.
|
|
|
principled, interest-based negotiation
|
a method of negotiation that focuses on the parties' interests as opposed to positions. the language used to describe this bargaining includes options, alternatives, objective criteria, and relationships.
|
|
|
submission
|
the act or process of referring an issue to abitration.
|
|
|
voluntary arbritration
|
a method of resolving a dispute, as an alternative to litigation, that the parties agree to utilize. this agreement may be made before or afer a dispute arises.
|
|
|
affidavits
|
a sworn written statement made before an officer authorized by law of administer oaths.
|
|
|
answer
|
the resposive pleading filed by a defendant
|
|
|
appellant
|
the party seeking review of a lower court decision
|
|
|
appellee
|
the party responding to an appeal, the winner in trial court
|
|
|
beyond a reasonable doubts
|
the burden of proof required in criminal cases. the prosecution in a criminal case has the burden of proving the defendant is guilty, and the jury must have no reasonable doubt about the defendant's guilt.
|
|
|
brief
|
a written doument produced by a party for a reviewinmg court that contains the facts, propositions of law, and argument of a party. it is in this document that the party argues the desired application of the law and any contentions as to the rulings of the lower court.
|
|
|
burden of proff
|
the term burden of proff has two meanings. it may describe the party at a trial with the burden of coming forward with evidence to establish a fact. the term also describes the party with the burden of persuasion. this party must convince the judge or jury of the dispute facts in issue or else lose that issue. there are various degrees of proof.
|
|
|
class-action suit
|
a method of litigation that allows one or more plaintiffs to file a lawsuit on behalf of a much lager group of persons, all of whom have a common interest in the claims being litigated.
|
|
|
clear and convincing proof
|
a burden of proof that requires the party with the burden to establish clearly the existence of the alleged facts. This burden requires more proof than merely having a preponderance of evidence on one's side.
|
|
|
complaint
|
in legal practice, the first written statement of the plaintiff's position and allegations, which initiates the lawsuit.
|
|
|
counterclaim
|
any claim filed by the defendant in a lawsuit against the plaintiff in the same suit.
|
|
|
counterdefendant
|
the party involved in the litigation against whom a counterclaim is filed. this party is the original plaintiff.
|
|
|
counterplaintiff
|
the party involved in litigation who files a counterclaim. this party is the original defendant who is making a claim against the original plantiff.
|
|
|
default
|
the failure of a defendant to answer a plaintiff's complaint within the time period allowed by the court.upon the defendant's default, a judgement is entered in the plaintiff's favor.
|
|
|
defendant
|
the party involved in a lawsuit that is sued. the party required to respond to the plaintiff's complaint.
|
|
|
depositions
|
a discovery process outside the court's supervision that involves the sworn questioning of a potential witness. this oral questioning is reduced to a written form so that a record is established.
|
|
|
directed verdict
|
a motion for a directed verdict requests that the judge direct the jury to bring in a particular verdict if reasonable minds could not differ onthe correct outcome of the lawsuit. in deciding the motion, the judge will view in the light most favorable to the nonmoving party, and if different interferences may be drawn by reasonable people then the court cannot direct a verdict. in essence, a directed verdit removes the jury's discretion.
|
|
|
discovery
|
procedures by which on party to a lawsuit may obtain information relevant to the case from the other party or from third persons.
|
|
|
execution
|
to carry out some action to completion. with respect to enforcing a court's judgement, an execution involves the seizure of the debtor's property, a sale of the property, and the payment or proceeds to the creditor
|
|
|
extradition
|
the process that one state uses to have another state transfer to the jurisdiction of the first state a person accused of criminal activities.
|
|
|
garnishment
|
a legal proceeding whereby a creditor may collect directly from a third party whois obligated to the debtor
|
|
|
interrogatories
|
written questions submitted by one party to another in a lawsuit; a type of discovery procedure.
|
|
|
judgement
|
offical adjudication of a court of law
|
|
|
judgment notwithstanding the verdict
|
the decision of a court that sets aside the verdict of a jury and reaches the opposite result
|
|
|
judgment on the pleadings
|
a principle of litigation, in the form of a motion, whereby one party tests the validity of the allegations contained in the complaint and answer. upon this motion a judge might determine that the pleadings contain no issues of fact or law, and thus grant a judgment prior to a trial.
|
|
|
jury instructions
|
a statement made by the judge to the jury informing them of the law applicable to the case the jury is bound to accept and apply
|
|
|
long-arm statutes
|
a state statute that gives extraterritorial effect to process (summon) in specified cases. it allows state courts to obtain jurisdiction in civil actions over defendants who are beyond the border of the state provided the defendants have minimum contact with the state sufficient to satisfy due process.
|
|
|
motion
|
the process by which the parties make written or oral request that the judge issue an order or ruling.
|
|
|
oral argument
|
attorneys appear in person beore the appellate court to explain orally to the court their position in the case and answer the court's questions about the case.
|
|
|
peremptory challenges
|
the power granted each party to reject a limited number of potential jurors during voir dire examination. no reason for the rejection need be given.
|
|
|
personal jurisdcition
|
the power of a court over the parties involed in the litigation process
|
|
|
petitioner
|
the party filing eihter a case in equity or a petition for a writ of certiorari before a supreme court
|
|
|
plaintiff
|
the person who initiates a lawsuit
|
|
|
pleadings
|
the system for defining and narrowing the issues by parties who file formal documents stating their respective positions in a lawsuit
|
|
|
preponderance of evidence
|
in the judgment of the jurors, evidence that has greater weight and overcomes the opposing evidence and presumption
|
|
|
request for an admission
|
a method of discovery used to narrow the issues to be litigated by having a party request that the other party admit the facts that are not in dispute
|
|
|
request for production of documents
|
a method of discovery whereby one party asks the other to provide documents for the requesting party's review
|
|
|
res judicata
|
the doctrine that deems a former adjudication conclusive and prevents a retrial of matters decided in the earlier lawsuit
|
|
|
respondent
|
the party answering a petition for a writ of ceriorari in the supreme court
|
|
|
standing to sue
|
the requirement that a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing
|
|
|
statute of limitations
|
a statute that sets a date after which a lawsuit may not be brought. the statute begins running after the happening of a certain event, such as the occurrence of an injury or the breach of a contract
|
|
|
summary judgment
|
a judicial determination that no genuine factual dispute exists and that one party to the lawsuit is entitled to judgment as a matter of law
|
|
|
summons
|
an official notice to a person that a lawsuit has been commenced againt him and that he must appear in court to answer the charges
|
|
|
third-party defendants
|
a party who is no a party (plaintiff or defendant) to the original litigation. typically, a defendant might file a cliam againt a third party stating that if the defendant is liable to the plaintiff, then this third party will be liable to the defendant.
|
|
|
verdict
|
findings of fact by the jury
|
|
|
voir dire
|
the preliminary examination of propective jurors for the purpose of ascertaining bias or interest in the lawsuit
|
|
|
appeal
|
the right of litigation parties to have the legal decisions of the trial judge reviewed by an appellate court
|
|
|
appellate court
|
a courrt that decides whether a trial judge has made a mistake of law
|
|
|
courts of appeal
|
a court that reviews decisions by lower courts
|
|
|
diversity of citizenship
|
the plaintiff filing a lawsuit must be from states different than those of the defendant. this requirement, along with over $75,000 at stake, is one method a federal court gains jurisdiction over the subject matter of a lawsuit
|
|
|
federal question cases
|
litigation involving the application or interpretation of the federal constitutionm federal statutes, federal treaties, or federal administrative agencies. the federal court system has subject matter jurisdcition over these issues.
|
|
|
federal rules of civil procedure
|
a law passed by congress tha tprovides the procedural steps to be followed by fedral courts when handling civil litigation
|
|
|
judicial activism
|
an activist judge tends to abide by the following judicial philosophies: 1) the political process cannot adequately handle society's difficult issues; 2) the courts can correct society's ills through the decision-making process 3) following precedent is not crucial; 4) judge-mae law is often necessary to carry out the legislative intent of the law
|
|
|
judical restraint
|
judges who abide by this philosophy believe 1)the political process and not the courts should correct society's ills 2)decides an issue on a narrow basis, if possible 3) follows precedent whenever possible 4) does not engage in "judge-made" law but interprets the letter of the law
|
|
|
judicial review
|
the power of courts to declare laws enacted by legislative bodies and actions by the executive branch to be unconstitutional
|
|
|
petit jury
|
the fact-findig body during a trial. also called a trial, or traverse jury.
|
|
|
small-claims court
|
a court of limited jurisdiction, usually able to adjudicate claims up to a certain amount, such as $3,000, depending on the state.
|
|
|
subject matter jurisdiction
|
the authority of a court to hear cases involving specific issues of law
|
|
|
supreme court
|
the highest appellate court
|
|
|
trial court
|
the level of any court system that initially resolves the dispute of litigants. frequently, but no always,a jury serves as a fact-finding body while the judge issues rulings on the applicable law.
|
|
|
writ of certiorari
|
a discretionary proceeding by which an appellate court may review the ruling of an inferior tribunal.
|
|
|
dicta
|
statements made in a judicial opinion that are not essential to the decisin of the case
|
|
|
administrative law
|
the legal principles involved in the workings of administrative agencies within the regulatory process
|
|
|
breach of contract
|
a party's failure to perform some contracted for or agreed-upon act, or failure to comply with a duty imposed by law
|
|
|
citation
|
the reference identifying how to find a case
|
|
|
compensatory damages
|
usually awarded in breach of contract cases to pay for a party's losses that are a direct and forseeable result of the other party's breach. the award of these damages is designed to palce the nonbreahing party in the same position as if the contract had been performed.
|
|
|
conflicts of law
|
rules of law the courts use to determine that substantive law applies when there is an inconsistency between laws of different states or countries
|
|
|
constitutional law
|
the legal issues that arise from interpreting the US constitution or a state constitution
|
|
|
constitutional relativity
|
the idea that constitutional interpretation is relative to the time in which the constitution is being interpreted
|
|
|
corporate governance
|
a term that has at least 2 meanings. a) how business organizations are created and managed. b)how the various levels of government regulate business organizations as they transact business
|
|
|
corporation
|
an artificial, but legal person created by state law. as a business organization, the corporation's seperaton of owners and managers gives it a high level of flexibility
|
|
|
exemplary damages
|
punitive damages. monetary compensation in excess of direct losses suffered by the plaintiff that may be awarded in intentional tort cases where the defendant's conduct deserves punishment.
|
|
|
holding
|
the precise legal response in an opinion by an appellate court on an issue of law raised on appeal
|
|
|
intentional torts
|
noncontractual legal wrong caused by one who desires to cause the wrong or where the wrong is substantially likely to occur from the behavior.
|
|
|
negligence
|
a person's failure to excerice reasonable care that forseeably causes another injury
|
|
|
precedent
|
a prior judicial decision relied upon as an example of a rule of law
|
|
|
private law
|
a clasification of legal subject matters that deals most directly with relationship between legal entities. the law of contracts and the law of property are two examples of this classification.
|
|
|
property law
|
the law of the legal fence that establishes exclusive right in someone called an owner.
|
|
|
punitive damages
|
monetary damages in excess of a compensatory award, usually granted only in intentional tort cases where the defendant's conduct involved some element deserving punishment. also known as exemplary damages.
|
|
|
remedy
|
the action or procedure that is followed in order to enforce a right or to obtain damages for injusry to a right. the means by which a right is enforced or the violation of right is prevented, redressed or compensated.
|
|
|
sanctions
|
penalties imposed for violation of a law
|
|
|
specific performance
|
equitable remedy that requires defendants in certain circumstances to do what they have contracted to do
|
|
|
stare decisis
|
the doctrine that traditionally indicates that a court should follow prior decisions in all cases baed on substantially similar facts
|
|
|
tort
|
a civil wrong other than a breach of contract
|
|
|
affirmative action
|
positive steps taken in order to alleviate conditions resulting from past discrimination or from violations of a law
|
|
|
bona fide occupational qualifications (BFOQs)
|
a qualification that permits discriminatory practices in employment if a person's religion, sex or national origin is reasonably related to the normal operation of a particular business
|
|
|
business necissity defense
|
an affirmative defense under Title VII of the civil rights act. it is raised to disparate impact claims and asserts that a facially neutral but discriminatory policy is job related
|
|
|
comparable worth
|
jobs that, although different, produce substantially equal value for the employer
|
|
|
disability
|
any physical or mental impairment that substantially limits a major life activity
|
|
|
disparate impact
|
a term of employment litigation that refers to the disproportionate impact of a policy neutral on its face on some protected class (e.g. race or sex)
|
|
|
genetic information nondiscrimination act (GINA)
|
prohibits covered employers from firing, refusing to hire, or otherwise discriminating against individuals on the basis of their genetic information or a family member's genetic information
|
|
|
hostile work environment
|
under title 7 an environment where co-workers make offensive sexual comments or propositions, engage in suggestive touching, show nude pictures, or draw sexual graffiti
|
|
|
qualified disabled
|
a disabled person who can perform the duties of a job
|
|
|
reasonable accomodation
|
the actions that an employer must take under title 7 of the civil rights at and under the americans with disabilities act to adapt employment conditions to an employees religious belief or disability
|
|
|
retaliation
|
striking back against someone for what they did to you. used in labor law, employment discrimination cases, and whistle-blowing as part of a doctrine prohibiting an empoyer from firing or taking other adverse actions against employees for reporting the employer to federal agencies for violating various laws
|
|
|
reverse discrimination
|
the advancement and recruitment of minority workers ahead of similarly qualified nonminority workers
|
|
|
section 1981
|
that provision of the civil rights act of 1866 that forbids racial discrimination in the making of contracts
|
|
|
seniority system
|
a plan giving priority to employees based on the length of time an employee has worked for an employer. an employer may apply different standards pursuant to a good-faith seniority system if the differences are not the result of an intention to discriminate
|
|
|
sexual harassment
|
under title 7, for an employer or workplace supervisor to promise benefits or threaten loss if an employee does not give sexual favors
|
|
|
uniformed services employmen and reemployment rights act (USERRA)
|
the act which protects the rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service
|
