Mac 703 - Business Law - Part 1

Front 1

Def. of law
1. law is _______ promulgated by ________.
2. 'law is _______ of the way in which a ______ will decide ______ ______ _______.' - Oliver Wendell Holmes

Back 1

1. rules; policitians
2. predictions; court; specific legal questions

Front 2

_______ = Right hand side of road

vs.

_______ = don't foreclose a poor widow

Both = Don't kill

Similar but not the same...


_______ - _____ and _____ treatment of competing interests of individual and groups with __________________.

Back 2

Law vs. Morals

Justice; fair; equitable; due regard for the common good.

Front 3

right vs. duty

Back 3

right = the capacity of a person, with aid from law, to require another person(s) to perform / not perform a certain act.

duty = obligation the law imposes on a person to perform / not perform a certain act.

Front 4

_______ law = creates, defines and regulates ______ and ______.

vs.

_________ law = sets forth rules for enforcing those ______ that exist by reason of the ________ law.

Back 4

Substantive; rights; duties

Procedural; rights; substantive

Front 5

_____ law = _______ relations to _______ / _______. Something that affects ______ ___ _ _______

vs.

________ law = law governing ________ / ________ and their relations.

Back 5

Public; government; individuals / businesses; society as a whole.

Private; individuals / businesses.

Front 6

Criminal law must prove _____ ___ _____ _____, which is a much higher threshold than civil law which requires a ______ __ _____ _______. (___ sure rather than ____ sure). Therefore, _____ law outcomes cannot be presented in ______ trial.

Back 6

beyond a reasonable doubt; preponderance of the evidence; 98; 52; civil; criminal

Front 7

Hierarchy of Law

_________
_________ or ________
_________
_________
_________
_________
_________
_________

All law is subordinate to the _______ and if any law conflicts it is invalid; the ________ _____ has the power of _______ ________ which makes this determination.

Back 7

US Constitution
Federal Statues or Treaties
Federal Administrative Law
Federal Common Law
State Constitution
State Statues
State Administrative Law
State Common Law

Constitution; Supreme Court; judicial review.

Front 8

_____ law based on the English Law, makes the _______ the _____ of the law and is based on the _______ system in which parties settle disputes and initiate litigation

_____ law (system), based on Roman law, makes the _____ ______the _____ of the law and is based on the _______ system in which the judiciary settles disputes and initiates litigation

Back 8

Common; judiciary; source; adversary;

Civil; legislative codes; source; inquisitorial

Front 9

_______ law is based on _____ ______ in which courts adhere to rulings of law applied in similar decisions by superior courts. This doesn't _____ _____ ____ _____ cases, it is a general rule.

Back 9

Common; stare decisis; prevent courts from reversing

Front 10

______ remedies were developed in England when common law (civil) could only provide limited remedies (in the form of ______). To ease this burden, the king delegated petitioners to the _______, who created the _____ ___ ______, which helped when monetary remedies were not enough. The courts in US have merged these two courts, but old vestiges remain like there is ___________ in suits filed in ____.

*these courts granted remedies __ ___ ____ according to general legal principles or _____ developed over time.

Back 10

Equity; money; chancellor; courts of equity; no trial by jury; equity; at their discretion; maxims

Front 11

Effective equity court remedies.
1. _____ ______ - comand defendant to hold to contract / give up item, due to $ damages being inadequate
2. _______ - requires party to do / not do something
3. _______ - an action to change a contract to represent actual intent of contracting parties (accidentally put 20 instead of 200).
4. ________ = allows party to nullify contract
5. ________ = allows party to receive statements from a business

Back 11

1. specific performance
2. injunction
3. reformation
4. recission
5. accounting

Front 12

ALI, ______ ____ ______, prepares _______ of _____ law to provide a concise and clear statement of law.

Back 12

American Law Institute; restatements; common

Front 13

Legislatures that make ______ law are better suited to make sweeping changes because they are apt to ______ previous enactments (______ are ______ to do this). They also get to _____ _____ ______ ______ _____ (______ are not able to do this).

Back 13

statutory; repeal; courts; hesitant; choose the issues they address; courts

Front 14

Many business law topics became _____ _____ laws (ie laws on _______ and _________). This led to the creation of the _______ ______ _______ (___) which helps reduce confusion.

Back 14

state statutory; incorporation; commercial paper; Uniform Commercial Code; UCC

Front 15

The President is allowed to enter into treaties if ____ of the ____ concur. Treaties have the legal force of a _______ _______, but therefore subject to ______ ________.

_______ ______ are laws issued by the President

Back 15

2/3; Senate; federal statute; judicial review; Executive orders

Front 16

________ law is created by ____ agencies like the IRS. Its scope has been expanded enourmously and _____ more legal rules and ______ _____ _______ than all the ______ and ______ combined.

Back 16

administrative; administrative; creates; decides more controversies; legislatures and courts

Front 17

the _______ is the person who files the suit and is placed first on permanent reporting. (ie Leland vs. Timmons).

The ______ is the person who the suit is brought against.

An ________ is the party that appeals and thus lost.

An ______ is the party that won in an appeal.

Sometimes in reporting, if the defendant loses and appeals - their name is first on reporting ie. (Timmons vs. Leland - state court of appeals).

Back 17

plaintiff; defendant; appellant; appellee

Front 18

Judges in the federal court system are _______ ______ _______ and ______ _____ ______ _______. The Constitution establishes the _______ _______ and such _____ ______ ________ may establish.

Back 18

appointed for life; confirmed by the Senate; Supreme Court; lower courts Congress.

Front 19

Federal ______ courts are presided over by __ judge(s). Most federal cases begin here. _______ has established _____ judicial districts based on _________.

Back 19

district; 1; Congress; 100; population

Front 20

The US Court of Appeals has ___ judicial ______ (___ + DC). It primarily hears appeals from _____ courts but also reviews decisions of ______ _______ and the _____ and ______ _______. ___ judges sit on a panel, but rarely all judges of a ______ will sit ___ ____ to decide a case. Its primary function is to determine if the court committed a _______ error (errors of ___, ie, judges decision to admit evidence; granting a judgement ______ ____ _______, etc). Can ____, ____, ______, or _____ (send back to court) a case.

Back 20

Court of Appeals; 12; circuts; 11; district; administrative agencies; Tax and Bankruptcy Court; 3; circuit; en banc; prejudicial; law; notwithstanding the verdict; affirm; modify; reverse; remand.

Front 21

The Supreme Court needs ___ justices for a quorum. It can have _______ ______ but it mostly reviews cases coming from ____ _____ ______ and _____ ______ ______. Cases reach the SC by:
1. ______ __ ______ - rare
2. ______ ____ _______ - if __ justices vote to hear the case it is granted. Usually the cases heard are if there are ______ ______ of importance or ___ ____ in the ______ ____ ______. If a writ is not granted the appeal is over.

Back 21

6; original jurisdiction; Court of Appeals; State Supreme Courts; appeal by right; writ of certiorari; 4; federal questions; split decisions; Court of Appeals.

Front 22

Special Courts:
1. __ _____ of ___ ______ = jurisdiction to hear claims against US.
2. _______ Court
3. ________ Court
4. US ____ ____ ____ for the ___ ______ - reviews _____ ____ of _____ ______, ____ / ____ office, etc......

Back 22

US Court of Federal Claims; Bankruptcy; Tax; Court of Appeals for the Federal Circuit; US Court of Federal Claims; Patent / Trade.

Front 23

Most states elect judges for stated term; A few states do not have a ______ ______, only a ______ _____. The are Special State Courts like ______ court (deals with wills / estates) and ______ court (deals with divorce / child custody). _______ Trial Courts are known as ______ or _____ Court in criminal law and _____ _____ _______ in civil law. In the latter, there is a ___ _____ for how much can be awarded, there are no _______ or _______, and an appeal will guarantee a trial ___ ____ in trial court (without a record of the previous hearing).

Back 23

appellate court; Supreme Court; probate; family; Inferior; Municipal; Traffic; Small Claims Court; dollar limit; juries; lawyers; de novo.

Front 24

Jurisdiction is the ______ and _____ to decide a case. To resolve a lawsuit, the court must have 2 kinds of jurisdiction: ____ _____ (challenge for _____ courts) and jurisdiction ______ _____ (challenge for ____ courts)

Back 24

power; authority; subject matter; federal; over parties; state.

Front 25

Subject Matter jurisdiction:

The ___ Amendment affirms that states have jurisdiction over all matters not given to the federal gov't in ___ ________ or ___ ______.



The Federal Government has ______ jurisdiction over 9 areas:

________ _______ _______
_______ / _______
_______
_______
_______, _______ and _______
______ against _____
cases arising ______ ______ ______

Back 25

9th; the Constitution; by Congress; exclusive;

federal criminal prosecutions
admiralty / maritime
bankruptcy
anti-trust
patents, trademark and copyright;
suits against US
cases arising from federal statues.

Front 26

Subject Matter jurisdiction:

The Federal government has _________ over in cases involving a _____ _________ (any case involving _______, _____ or _______. ____ min. dollar amount - CRAZY) or cases with a ___________ meaning (__ min. dollar amount):
1. ___________ of _______ - not even one plaintiff / defendant from _______.
2. ______ bringing action against _______
3. _______ bringing action against ________.
Corporate ______ is defined as both the _______ and the ____ in which __________. When federal court hears a _________ case, ____ substantive law is used and ______ procedural law is used. When bringing charges, plaintiff can take suit to state or federal court if ______ ______ exists, however, ____________________.

State courts have ____ jurisdiction in ________ and __________ cases involving _________. Also if the case is taking place in Washington, when the injurious act occurred in Oregon, Washington can choose, under its __________ rules, to apply Oregon ____ law.

Back 26

concurrent jurisdiction; federal question; US Consitution; federal statues; treaties of the US; 0; diversity of citizenship; 75,000;
1. different citizens of different states; same state;
2. foreign country; US citizen
3. foreign citizen; US citizen;
citizenship; state of HQ / incorporation; state; principal place of business is located; diversity of citizenship; state; federal; diversity of citizenship; the defendant may usually get it shifted to a federal court if he/she wishes;

exclusive; all other matters; diversity; less than 75,000; conflict of laws; substantive;

Front 27

Juris. over parties:

Juris. is obtained from _____, when he/she submits to the court. For def., the state court may obtain this juris. with:
1. _______ - this is "_________". This can be obtained by specifying the specific court in a _______. However, most likely obtained by:
A. ________ on a party ______ (delivering a _______ - a order to _____ to a ____). This applies to ____ and _____ alike.
B. reasonable notification of party _______ where "________" applies. This can occur if defendant
i. has ________ within the state
ii. ________ within the state and it is ______.
iii. has _________ within the state.
iv. has __________ within the state and that is the ________.

2. __________ - jurisdiction over _______, can obtain this if ______ gives defendant ______ of the ______ and ______.

According to the ______ of the ______, the def. must have _____ w/in the ______.

In order to ______ on a _____ that is ______ to the property ______, there is another juris:
3. _______ or ______. Example?

Back 27

plaintiff;

1. in personam jurisdiction; personal jurisdiction; contract;
A. serving process; within the state; summons; respond; complaint; residents; non-residents;
B. outside the state; long-arm statue;
i. committed a tort;
ii. has property; subject matter of the suit;
iii. entered into a contract;
iv. transacted business; subject matter of the suit.

2. in rem jurisdiction; property; plaintiff; reasonable notice; lawsuit; opportunity to be heard.

Due Process Clause; 14th amendment; defendant; minimum contacts; state; obtain payment; claim; unrelated; seized;
3. quasi in rem; attachment jurisdiction;
Ex: Judgement of $20,000 awarded. If defendant in another state, his property in state can be seized to pay damages.

Front 28

_________ is like jurisdiction, but it simply means where a lawsuit _______ be brought, identifying a _______ _______.

Back 28

Venue; should; convenient forum;

Front 29

Civil procedure:

1. Pleadings

a. __________ - plaintiff files with clerk: i. __________ ii. _________. Clerk issues a _________, the *_______ ____ and defendant has a limited time period to respond (~30 days). If no response, a _____ _______ is entered (defendant loses).

b. _____________ - the defendant can make a number of _______ motions, most notably a _______. This asserts that even if the allegations were true, the ______ would not be entitled to the plaintiff. The court rules on this and other motions and then the defendant will file an ________. This can be any combination of these 4 items:
i. ______ - "I'm not guilty of X"
ii. ______ - "I did do Y"
iii. ______ - "The facts are true, but Z, therefore not guilty"
iv. _______ - "I deserve relief"

c. _____________ - if the defendant _________, the plaintiff must do this.

d. Judgment on the Pleadings - requests judge to rule as ___________ whether the facts alleged are sufficient to __________.

Back 29

a. Complaint; statement of claim / facts; demand for relief; summons; sheriff serves it; default judgment;

b. Answer or Demurrer; pre-trial; demurrer; relief; answer;
i. denial
ii. admission;
iii. affirmative defense;
iv. counterclaim;

c. Reply; counterclaims;

d. Judgment on the Pleadings; a matter of law; grant requested relief;

Front 30

Civil procedure:

2. Pre-trial

a. ___________ - this is done mainly to _________. Each party has the right to obtain relevant info from the other party. This includes:
i. ________ - sworn testimony of opposing party / witnesses
ii. ________ - written answers of opposing party;
iii. _________________ of opposing party;
iv. _______________ of opposing party;
v. ___________ of opposing party (based on _________).

b. ___________ - between judge and attorneys; its purpose is to:
i. ___________ / ___________
ii. ________________
If no _______ occurs, judge will enter a _________ containing all matters agreed upon that _______ the _________.

c. ___________ - if evidence is so clear in the ________, there are no ______________ to be resolved, parties can move for a judge to decide.

Back 30

a. Discovery; avoid surprises;
i. deposition;
ii. interrogatories;
iii. production of documents in property
iv. court-ordered examination;
v. admission of facts; request for admissions

b. pre-trial conference;
i. identify witnesses and documents / amend pleadings
ii. to encourage settlement;
settlement; pre-trial order; supersedes; pleadings;

c. Summary Judgment; pre-trial conference; matters of fact;

Front 31

Civil procedure:

3. Trial (determination of the facts)

- Can have jury is civil cases of common law > ______.
- Cannot have jury in _____ cases (almost all)
- Both parties can _____ a trial by jury

a. _______ _______ or ____ ____. The attorneys examine potential jurors. Each party has ______ number of _________ ____ _____, which prevents potential juror from serving if he is _____. Each party has ________ number of _______ ________ where no cause is given to disqualify juror. (Cause cannot be ____ and maybe not ____).

b. _____________ - facts intended to prove (both)

c. _____________ - Plaintiff goes _____. Witnesses subject to ________ ________ by own attorney, then ________ ______ by opposing. If judge disallows _______ or ______, the attorney makes an ______ _______ (for the record....). This shows it was disallowed - good for _______. After plaintiff's / defendant's case, either can call for ___________, which would mean the judge rules in favor of plaintiff / defendant.

d. _____________

Back 31

$20; equity; waive;

a. jury selection; voir dire; unlimited; challenges for cause; biased; limited; peremptory challenges; race; gender;

b. Opening Statements

c. Evidence; first; direct examination; cross-examination; a witness; evidence; offer of proof; appeals; directed verdict;

d. Closing statement;

Front 32

Civil Procedure:

3. Trial (determination of the facts) - part 2.

e. ___________ - also called ______, can be written by ________ or ________. The purpose is to advise the ______ of the ______ that apply to the _______.

f. ________. Read aloud by _____ or in _________ by the ______. Some jurisdictions have _______ ______, where the ____ makes ______ on each ______ issue. Post-verdict, the loser can make many motions, most notably:
i. ________________. Can be granted if: a. ________ made; b. _________ weight _____; c. __________; d. ________; The judge may grant _,_, & _ even if there is substantial evidence for the verdict.
ii. _____________ (____ ___): this must be denied if there is _________ for verdict. This is similar to the ________. It _____ the decision. If this is _____ on ______, a ______ is __________. Only available in ________.

If no other motions, a _________ is entered.

Back 32

e. Jury Instructions; charges; attorneys; judge; jury; rules of law; facts;

f. Verdict; foreman; written form; judge; special verdicts; jury; decisions; factual.
i. motion for a new trial;
a. prejudicial error;
b. verdict against weight of evidence;
c. damages are excessive;
d. trial not fair;
1, 3, 4.
ii. motion for judgment notwithstanding the verdict; judgment n.o.v.; substantial evidence; directed verdict; reverses; reversed; appeal; new trial; no necessary; civil cases;

judgment on the verdict;

Front 33

Civil Procedure

4. Appeal

- only ________ reviewed by appellate court (ie. judges decision ____/____ ______, a judgment ___, _______ to jury, etc. ).
-court reviews ________ _____ = with no weight given to decision
- ____________ only reversed in extraordinary circumstances

a. _______ (loser) files a ______ (excerpts from the record) and an _______ for what was erroneous.

b. _______ (winner) files an ______ _____/_______.

c. Court hears _________ (if it elects). Then it _________.

d. _________ - court makes based on majority rule and prepares ___________ on the decision. May ______, _______, ______, or ______.

e. ____________ (if possible).

Back 33

errors of law (prejudicial); allow/deny evidence; n.o.v.; instructions; errors of law de novo; errors of fact;

a. appellant; brief; argument;

b. appellee; answering brief/argument;

c. oral arguments; deliberates;

d. decision; written opinions; affirm, remand; reverse; modify;

e. appeal to S.C.

Front 34

Civil Procedure

5. Enforcement:

If defendant held liable and hasn't paid up, the plaintiff can request the ______ to issue a _____________, to be ____________ as a demand to pay. If this isn't sufficient (doesn't pay), property can be _______ and sold at _______ to pay judgment. The plaintiff's attorney can also proceed by ________ against defendant's __________ or _________ to collect money. If property in state isn't enough, plaintiff can bring actions to other states to seize property.

Back 34

clerk; writ of execution; served by the sheriff; levied; auction; garnishment; employer or bank

Front 35

Alternate Dispute Resolution

______: parties select neutral 3rd party who renders a _______ after hearing _____. The proceeding is ____ and less ______. The parties are able to select an ______ with _______ about the ________. Usually used in ______/____ management disputes. Subject to very little _____ (usually _______). Two types:
1. ____________: parties agree to submit dispute to _______ (either _______ or _______).
2. ___________: infrequent, a federal/state _____ requires ________ for certain disputes (i.e. _________)

________: non-binding; 3rd party facilitates communication between parties

___________: like ______, but the facilitator __________. A _____ is a 3rd party that serves as a _____ and then if the discussions move nowhere, then becomes a _______.

_______: nonbinding, mostly with _______ - attorneys perform limited _______, then present cases to a panel of ______ from each ______ and a neutral 3rd party. Afterwards, they ______.

_______: mock trial that's _____. Afterwards they ____

Back 35

arbitration; binding decision; evidence; private; formal; arbitrator; special expertise; subject of dispute; commercial / labor; judicial review; corruption;
1. Consensual arbitration; arbitration; voluntarily; in contract
2. Compulsory arbitration; statues; arbitration; public employees;

Conciliation;

Mediation; conciliation; proposes solutions; med-arb; mediator; arbitrator;

Mini-trial; corporations; discovery; managers; company; negotiate;

Summary jury trial; non-binding; negotiate