Business Law Chapter 2-4

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what is law

Back 1

Rules of conduct established by the government to maintain harmony, stability and justice within a society

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Complex adaptive system

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a network of interacting conditions that reinforce one another while the same time adjusting to changes from agents both outside and inside the system.

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Constitution

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is the basic law of a nation of state

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Constitution Law

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the body of law that makes up a Constitution and its interpretation

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First Constitution was known as

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Articles of confederation

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what is the principle of checks and balance

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it allows each branch to share in power of the other two branches

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the first 10 amendments are called

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the bill of rights

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what do the amendments establish

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the rights that belong to the people, it changes some of the provision in the original articles.

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State constitution

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Establishes the states government, it sets down principles to guide the state government in making state laws and conducting state business. (usually patterned after the u.s constitution)

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Principle of supremacy

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the us Constitution is the supreme law of the land. all other laws mush be in line with the constitutional principles

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Preemption

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the process by which the courts decide that federal statute must take precedence over state statute.

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Devolution

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occurs when the courts redefine a right and shift the obligation to enforce a right form an upper level authority to a lower one.

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Statutes

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Are laws passed by legislature.

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Federal Statutes

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are laws made by congress and signed by the president

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State Statutes

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statues are enacted by state legislatures

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Code

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is a compilations of all the statutes of a particular state or federal government.

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Titles

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codes are subdivide into titles, which are groupings of statutes that deal with a particular area f the law

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NCCUSL

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National conference of commissioners of uniform state laws

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uniform commercial code (UCC)

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is a unified set of statutes designed ti govern almost all commercial transactions.

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E-commerce

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is the term applied to all electronic transitions.

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UCITA

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Uniform computer information transactions act. Is designed to deal directly with e-contracts that involve the sale or licensing of digital info.

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UETA

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Uniform electronic transaction act. this e-law paint out the principle that should be used in every state to make certain that e-contracts are enforceable.

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common law origin

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comes from that attmepts of the early English kings to establish a body of law that all courts in the kingdom would hold in common

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Common law

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is the body of previously recorded legal decisions made by courts in specific cases.

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Stare Decisis

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the process of relying on previously recorded legal decisions (let the decision stand)

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precedent

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is a modle case that a court can follow when facing simialr situations

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binding precedent

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is a precedent that a court mush follow

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Persuasive Precedent

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is a precedent that a court if free to follow or ignore

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Statutory interpretation

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is the process by which the courts analyze those aspect of a statue that are unclear or ambitious or that were not anticipated at the time the legislature passed the statute

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judicial review

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is the process of determining the constitutionality of various legislative statues, administrative regulations or executive actions.

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Federal register

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is a publications that produces a daily compilation of new regulations issued by federal administrative agencies

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Courts

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are judicial tribunals that meet in a regular place and apply the law in an attempt to settle the disputes by weighing the arguments presented by advocates of each party

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jurisdiction

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the authority of a court to hear and decide cases

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original jurisdiction

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the court that has authority to hear a case when it is first brought to court

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Appellate jurisdiction

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courts that have power to review case of error.

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Plenary review

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empowered to determine whether the lower courts have made errors of law

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Abuse of discretion

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judge in the lower court has in some way misused his or her authority

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Clearly erroneous standard

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the determination that the decision made in the loser court was undeniably wrong, given facts and evidence in the case.

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General jurisdiction

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courts with the power to hear any type of case

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Special Jurisdiction

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courts with the power to hear on certain types of cases

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Subject matter jurisdiction

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is the courts power to hear a particular type of case

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personal jurisdiction

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is the courts authority over the parties lawsuit.

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U.S district courts

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Each state and territory in the US has at least one federal district court.

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A federal question

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could involve the US constitution, a federal stature or treaty

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Diversity Cases include:

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lawsuits between citizens of different states, between citizens of a state or different state and citizens of foreign nation and between citizens of state and a foreign government as the plaintiff.

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removal

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the process of moving a case from a state court to ta US district court

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minium contracts

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identifies the fewest number of contacts needed to allow the court to exercise jurisdiction over the out of state defendant.

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how many judicial circuits

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thirteen

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what is the supreme court composed of

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a chief justice and 8 associate justices who are appointed by the president with consent of the the senate.

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Writ of certuirari

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is an order from the supreme court to a lower court to deliver its records to the US supreme court for review

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state trail courts

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are also known as general jurisdiction courts, have the power to hear any type of case.

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electronic jurisdiction (e-jurisdiction)

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is the authority to a court to hear a case based on internet related tranaction

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civil litigation

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is another name of the process of bringing a case to court to enfore a right

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plaintiff

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is the person who beings the lawsuit by filing a complaint in the appropriate trail court of general jurisdiction.

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Defendant

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is the person against whone the lwasuit has been brought and fomr whole a recovery is sought

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When filing a complaint, the complaint:

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sets forth the names of the parties to the lawsuit, identifying then as plaintiff or defendants

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The complaints sets forth:

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facts in the case from the plaintiffs perspective, the alleged legal violations by the defendant, injuries that the plaintiff suffered, the plaintiffs request for relief.

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Class action/Class action lawsuit

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is case in which one representative party files a lawsuit on behalf all members of a group of plaintiffs who share a single, similar injury

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Service of process

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is giving the summons and the complaint to the defendant

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pre-answer stage

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is the time between service and the answer

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once served how long does the defendant have to file an answer

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20 to 30 days

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a motion

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is a request for the court to rule on a particular issue. one possible motion is a motion for dismissal of the case for failure to state a claim of which relief can be granted. some states call this a demurrer

other motions to dismiss may be based on the grounds that the court lacks subject matter jurisdiction, that the court lacks person jurisdiction or that the court cannot hear the case because the statue of limitations has passed

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Demurrer

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a motion for dismissal of a case on the grounds that a plaintiff has failed to state a claim for which relief can be granted

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The answer

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is the defendants official response to the complaint. in the answer the defendant admits or denies the allegations in the complaint

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Affirmative defense

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is a set of circumstances that indicate that the defendant should not be held liable, even if the plaintiff prove all of the fact in the complaint.

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pretrial stage

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after the answer has been filed, the parties much await trail

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pretrial conference

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some courts require cases to go to pretrial conference after the compaint and the answer has been filed. a pretrial conference usually has two purposed 1. to discuss the possibility of settling the cas without the need for a trail 2. to decide on the detail involved in bringing the case to trial.

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Summary judgment motion

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is a motion that asks the court for an immediate judgment for the party piling the motion. this motion is filed when there is no genuine issue as to any material fact, and the party filing the motion is entitled by law to a favorable judgment. the motion cannot be filed without supporting legal argument written out in a brief and accompanied by applicable supporting evidence.

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discovery

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is the process by which the parties to a civil action search for info that is relevant to the case. the objective is to simplify the issues and avoid unnecessary arguments and surprises in the trial.

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deposition

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are oral statements made out of court under oath by witnesses or parties to the action in response to questions from opposing attorneys.

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interrogatories

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are written questions that mush be answered in witting under oath by the opposite party. They cannot be given to witnesses, only plaintiffs and defendants and be required to answer interrogatories

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request for real evidence

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is when a party is asked to produce documents, records, account, correspondence, photographs or other tangible evidence. the request may also seek permission to inspect land

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request of physical or metal examination

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party is asked to undergo a physical or mental examination.

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request of admissions

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are made to secure a statement from a party that a particular fact is ture or that a documetn or set of documents is genuine. an admission eliminates the need to demonstrate the truthfulness the fact or the genuineness of the document at trial

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electronically stored information

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computerized evidence

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Voir dire

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means to speak the truth. in this process, the lawyers from both parties questions prospective jurors to determine whether they will be allowed o sit on the jury

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opening statement

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in the opening statement, an attorney presents the facts in the case and explains what he or she intends t show during the trial.

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case in chief

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is the plaintiffs opportunity to present evidence that will prove his or her version of the case to the jury.

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direct examination

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the questioning of witnesses by the lawyer who has called then

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Cross examination

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the witnesses answer questions of the defense attorney.

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rebuttal

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the presentation of evidence to discredit the evidence by the opposition and to reestablish the credibility of his or her own evidence

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surrebuttal

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a reply to the defendants rebuttal

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verdict

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a finding of fact by the jury in a court cast; the jury's decision

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liability

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mean the defendant is held legally responsible for his or her actions

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damages

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refers to the money recovered by the plaintiff for the injury or loss caused by the defendant

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Equitable remedy

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requires a party to do something or to refrain from doing something beyond the payment of money

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injunction

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stops a party from doing something

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appeal

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is the referral of a case to a higher court for review

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preliminary hearing

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is a court procedure during with the judge decides whether probable cause exists to continue holding defendant for the crime

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prosecutor

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is the attorney who represent the government

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indictment

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a set of formal charges against a defedant ussed by a grand jury

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an information

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is a set of formals charges against a defendant drawn up and issued by the prosecutor or district attorney.

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arraignment

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is a formal court proceeding, during which the defendant, after hearing the indictment or information read, pleads guilty or not guilty.

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Alternate dispute resolution (ADR)

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when people attempt to resolve disagreement by stepping outside the usual adversarial system and applying creative settlement techniques.

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mediation

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process by which parties to a dispute invite a 3rd party, known as a mediator to help find a solution to their problem

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arbitration

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process by which the panties invite 3rd party, called an arbitrator, to settle their dispute. the procedure involved in arbitration are generally more flexible than those followed in a lawsuit.

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Med-arb

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is and ADR process that combine mediation with arbitration.

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summary jury trail

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is a shortened version of a tail conducted in less than a day before an actual jury that then render and advisory verdict in the case

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private civil trail

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is an ADR technique by which the parties hire a retired judge or magistrate to hear there dispute (they follow the same rules used in an official trial)

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Partnering

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is a process that establishes supportive relationships among the parties to a contract to head off disputes before they occur

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ADR contract clause

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will specify that the parties to the agreement have promised to use an alternative dispute resolution technique when a disagreement arises rather than litigating the issue

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Settlement week

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a five day period during which a courts docket is cleared of all business except settlement hearings

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negotiated rule making (reg-neg)

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is a process by which an agency invites the people and the organizations to be affected by a new rule to have input into the writing of that rule.

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post appellate procedures

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involve taking a case that has been rejected or dismissed by a domestic court to an international organization

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international arbitration agreement

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involves a pledge to use arbitration should the parties find themselves in disagreement as to the enforcement rights under the original contract.

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science court

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act as a forum for disputes involving scientific and technological controversies

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1st Amendment

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Freedom of religion, of speech, of the press, to petition, and to assemble

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2nd Amendment

Back 108

The right to keep and bear arms