Business Law Exam #1

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Primary Source of Law

Back 1

A document that establishes the law on a particular issue

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Four Primary Sources of Law

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1. The constitution and the constitutions of various states

2. Statues, or laws passed by Congress and by state legislators

3. Regulations created by administrative agencies

4. Case law (court decisions)

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Constitutional Law

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The body of law derived from the U.S constitution and the constitution the constitutions of the various states

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Statutory Law

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Laws passed by legislative bodies of government (like Congress)

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Which has more power? Case or Statutory Law?

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Statutory Law as long as the statute is specific enough to the case

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Administrative Law

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Consists of the rules, orders, and decisions of administrative agencies. An example of this is when the FDA creates laws that food and drug manufactures have to follow.

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Case Law

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The collection of court decisions that shape law. They are created in the courtroom.

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Stare Decisis

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"to stand on decided case"

When judges are obligated to follow the precedents established in prior doctrines

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Equitable Remedy

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Asking the court to make the defendant to do something they said they would do, or make them not do something. This can come up in the case of a contract breach.

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Substantive Law

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Law that defines, describes, regulates, and creates legal rights obligations

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Procedural Law

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Law that establishes the methods of enforcing the rights established by substantive law

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Cyberlaw

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An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the internet

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Civil Law

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The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters

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Criminal Law

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Law that defines and governs actions that constitute crimes.

"Crimes against society"

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National Law

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Law that pertains to a particular nation

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Judicial Review

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When the courts decide whether or not the actions of the other two branches of government are constitutional

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Jurisdiction

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The authority of a court to hear and decide a specific case

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Jurisdiction over Persons or Property

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Both of these are often based on geography.

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Long Arm Statute

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A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state

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Probate Court

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A court of limited jurisdiction relating to the settlement of a deceased person's estate

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Bankruptcy Court

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Court of limited jurisdiction that handles bankruptcy proceedings

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Jurisdiction of Subject Matter

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Usually defined in the statute or constitution creating the court

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Original Jurisdiction

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Courts of the first instance (trial courts)

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Appellate Courts

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Reviewing courts that are brought on by an appeal.

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Federal Question

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A question that pertains to the U.S constitution, acts of Congress, or treaties.

Provides a basis for federal jurisdiction.

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Diversity of Citizenship

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A basis for federal court jurisdiction over a lawsuit between citizens of different states and countries.

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Concurrent Jurisdiction

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Jurisdiction that exists when two different courts have the power to hear the same case.

In this case the party chooses which court hears the case

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Exclusive Jurisdiction

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Jurisdiction that exists when a case can only be heard in a particular court or type of court

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Venue

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The geographic district in the which a legal action is tried and from which the jury is selected.

It is concerned with the most appropriate physical location for a trial.

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Standing to Sue

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The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.

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Trial/District Courts

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Lower level court.

Where initial trials are held and everything is heard for the first time

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Appellate, or Reviewing Courts

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Intermediate Level court.

This is where appeals go. No additional evidence is heard.

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Supreme Court or other name based on state

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Highest Level court

Where trials go if there are additional appeals or issues after the other two levels

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Writ of Certiorari

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An order from a higher court asking a lower court for the record of a case

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Litigation

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The process of resolving a dispute through the court system

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Pleadings

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Formal papers filed with a civil court by the plaintiff and defendant which begin the litigation process. Includes the complaint.

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Complaint

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The pleading made by a plaintiff alleging wrongdoing. Initiates a lawsuit.

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Summons

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A notice directing someone to appear in court to answer a complaint or a charge

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Default Judgement

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Judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

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Answer

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A respondent's response to a plaintiff's complaint

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Counterclaim

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A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

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Reply

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A plaintiff's response to a defendant's answer

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Affirmative Defense

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To admit the doing of the act charge, but to seek to justify it. Maybe you can get out of being charged for it.

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Motion to Dismiss

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Request by a defendant for the court to dismiss the plaintiff's case.

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Motion for Summary Judgement

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This happens before the trial starts.

When the court is asked to make a judgement based on the pleadings without having the actual trial

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Motion for Judgement on the Pleadings

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A motion by either party after the pleadings for the court to decide a case based off just the pleadings.

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Discovery

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A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

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Deposition

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Sworn testimony about the case asked by attorneys

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Interrogatories

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Written questions that the defense and plaintiff send to one other. These are also under oath.

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What is a benefit of the discovery process in a trial?

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It can increase the likelihood of a settlement

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Pretrial Conference

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Meeting with retired judges who gives you an idea of how its gonna go and may or may not encourage settlement

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Voir Dire

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A process by which the judge and the lawyers in a case select jurors for the trial.

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Motion for a Directed Verdict

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Happens during the trial.

When the judge is asked to make a decision without continuing the trial.

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Appellate Review Process

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An appellate court has the following options:

1. Affirm the trial court's decision

2. Reverse the trial court's decision

3. Remand (send back) the case to the trial court for further proceedings

4. Affirm or reverse a decision in part, then remand other aspects of the case.

5. Modify a lower court's decision. Like changing the amount of damages rewarded.

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Brief

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A formal legal document prepared by a party's attorney and submitted to an appellate court when a case is appealed.

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Docket

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The list of cases entered on a court's calendar and thus scheduled to be heard by the court

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Alternative Dispute Resolution

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The process of deciding a lawsuit outside of the courtroom

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Mediation

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The cheapest and quickest.

You go talk to someone outside of court, they give you an idea of how things may go in court, and help you find a solution

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Arbitration

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A third part gives a decision that is often legally binding

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Negotiation

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A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them

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Arbitration Clause

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A clause in a contract saying that if there is a dispute, the parties will go with arbitration rather than litigation

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Online dispute resolution

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The resolution of disputes with the assistance of organizations that offer online dispute resolution services

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Federal form of government

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A system of government in which the states form a union and the power is divided between the central government and states

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Police Powers

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Powers possessed by the states

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Checks and Balances

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The powers of the national government are divided into three branches: Executive, Legislative, Judicial

Each branch can limit the actions of the other two branches.

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Commerce Clause

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Gives Congress the power to regulate interstate commerce

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Supremacy Clause

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Says that Federal law takes precsident over state law. Also, any state/local laws that directly conflict with federal law are rendered invalid.

For example, the Federal minimum wage is $7.25, so a state can only write a law that makes their minimum wage higher than $7.25

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Preemption

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A doctrine under which certain federal laws preempt, or take precedence over conflicting state or local laws

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Bill of rights

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The first ten amendments to the U.S Constitution

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First Amendment

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Guarantees freedoms of religion, speech,and the press and the right to assemble peaceably and petition the government

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Fourth Amendment

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Prohibits unreasonable search and seizures of persons or property

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Fifth Amendment

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Guarantees rights to indictment by grand jury, due process, and fair payment when private property is taken for public use. Also, it prohibits self-incrimination and double jeopardy (trial for the same crime twice)

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Symbolic Speech

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Nonverbal expressions of beliefs which is protected under the first amendment

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Reasonable Restrictions

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A balance must be struck between citizen's rights to free speech and the government's obligation to protect its citizens.

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Corporate Political Speech

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Corporations are protected under the first amendment.

Citizens United.

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Commercial Speech

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Advertisements and commercials for products and services; they receive less First Amendment protection, primarily to discourage false and misleading ads.

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Unprotected Speech

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Defamatory speech, speech that violates criminal laws, fighting words

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Obscene Speech

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1st Amendment does not protect obscene speech. Obscene speech is sexual, offensive to an average person and does not have value in society, and it lacks serious literary, artistic, political, or scientific merit.

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Establishment Clause

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Prohibits the government from favoring one religion over another.

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The Free Exercise Clause

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Prohibits the US government from interfering with a citizen's right to practice his or her religion.

But only up to the point where it is not an undo hardship. For example, you cant tell your employer that you need every Monday and Friday off for religious purposes.

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Due Process

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Fifth and Fourteenth amendments that say no one shall be deprived of life, liberty, or property without due process of law.

Basically, due process says that the government must that similarly situated individuals in a similar manner.

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Procedural Due Process

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Makes sure that the process is fair. The government has to give a person proper notice and the opportunity to be heard.

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Substantive Due Process

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Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do.

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Equal Protection

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Constitutional guarantee that everyone be treated equally

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What are the three standards of Equal Protection?

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Strict scrutiny, Intermediate scrutiny, The "Rational Basis" Test

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Strict Scrutiny

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A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal.

"If a law or action prohibits or inhibits some persons from exercising a fundamental right, the law or action will be subject to strict scrutiny by the courts"

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Intermediate Scrutiny

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Applied to cases involving gender discrimination or discrimination against illegitimate children. Any laws relating to these must be substantially related to important government objectives.

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The Rational Basis Test

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In matters of economic and social welfare, a classification will be considered valid if there is any conceivable "rational basis" on which it may relate to a legitimate government interest.

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Tort

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A civil/personal injury case

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Compensatory Damages

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A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.

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Punitive Damages

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Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.

These can be extremely high because you are trying to deter behavior

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Intentional Tort

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A wrongful act knowingly committed

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Assault and Battery

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Assault is any intentional threat of harm. Battery is when they actually do the thing.

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False Imprisonment

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Detaining a resident without a reason and against their will.

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Defamation

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Anything published or spoke that causes injury to another's good name, reputation, or character.

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Libel

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Written defamation. Usually needs to be something that can be proven true. For example, if you say someone robbed a bank and they didn't, it opens up the floor for defamation

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Slander

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Spoken defamation. Usually needs to be something that can be proven true. For example, if you say someone robbed a bank and they didn't, it opens up the floor for defamation

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Appropriation

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In tort law, the use by one person of another person's name, likeness, or other identifying characteristic, without permission and for the benefit of the user

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Fraudulent Misrepresentation

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Any misrepresentation knowingly made with the intention of deceiving another

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Trespass to Land

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The entry onto, above, or below the surface of land owned by another without the owner's permission or legal authorization

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Four elements needed for a Unintentional Tort (negligence) case

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Duty, Breach, Causation, Damages

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Negligence -- Duty

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That the defendant owed a duty of care to the plaintiff.

The Reasonable Person Standard

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Negligence -- Breach

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That the defendant breached duty of care

Res Ipsa Loquitur: "The facts speak for themselves"

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Negligence -- Causation

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That the defendant's breach caused the plaintiff to suffer an injury

Causation is Fact: Did the injury occur because of the defendant's act, or would it have occurred anyway? "But for"

Was the problem foreseeable?

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Negligence -- Damages

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That the injury suffered by the plaintiff is legally recognizable

You need to be able to state specific damages

A plaintiff man not recover for damages suffered from risks he or she knows of and has voluntarily assumed

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Res Ipsa Loquitur

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"The facts speak for themselves"

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Proximate Cause

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Legal cause, which exists when the connection between an act and an injury is strong enough to justify imposing liability

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Assumption of Risk

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A plaintiff may not recover for injuries or damages suffered from risks he or she knows of and has voluntarily assumed

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Superseding Cause

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An unforeseeable intervening event may break the connection between a wrongful act and an injury to another. It relieves a defendant of liability for injuries caused by the intervening event.

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Contributory Negligence

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Tries to show that the injury is partly the plaintiff's fault

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Comparative Negligence

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A method for measuring the relative negligence of the plaintiff and the defendant, with a commensurate sharing of the compensation for the injuries.

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Strict Liability

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A legal doctrine that says that some activities are so dangerous that liability will always follow any injury that results from those activities, even if you aren't negligence.

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Burden of Proof For Criminal Case

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“Beyond a reasonable doubt” is the the burden of proof

90%

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Burden of Proof for Civil Case

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"By a preponderance of the evidence” is the burden of proof.

51%

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Actus Reus

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A guilty act. You actually committed a wrongful act.

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Mens Rea

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Mental state or intent

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Corporate Criminal Liability

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If you should have known about something illegal going on in an organization, you can be held liable for those acts

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Five Types of Crime

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Violent, Property, Public Order Crime, White Collar Crime, Organized Crimes

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Violent Crime -- Robbery

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Robbery has to be under the threat of force. Otherwise, its just burglary.

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Burglary

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Entering a building unlawfully with intent to commit a felony or to steal valuable property

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Larceny

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Theft

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Obtaining Goods by False Pretenses

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Form of theft that involves trickery or fraud

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Receiving Stolen Goods

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It is a crime to receive goods one knows or has reason to know are stolen.

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Arson

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The intentional burning of another's building

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Forgery

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Something counterfeit; an illegally produced imitation

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Embezzlement

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The illegal appropriation of property, usually money, by a person entrusted with its possession

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Mail and Wire Fraud

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Using mail or wire (like a telephone or television) to defraud the public

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Felony

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Serious offenses that are punishable by 1 or more year in prison

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Misdemeanor

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Offenses that are punishable for less than a year in prison

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Petty offense

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The least serious kind of criminal offense, such as a traffic violation

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Defense -- Self-defense

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The legally recognized privilege to protect oneself or one's property against injury by another

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Defense -- Necessity

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Showing a criminal act was necessary to prevent an even greater harm

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Defense -- Insanity

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A person who suffers from mental illness may be incapable of the state of mind required to commit a crime.

Did they know what they were doing?

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Defense -- Mistake

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A mistake of fact (but not a mistake of law) may excuse a criminal defense

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Defense -- Duress

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Unlawful pressure on a person to make them perform an act they would not have otherwise performed

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Defense -- Entrapment

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When the defendant claims that they were induced by a public agent like an undercover cop to commit a crime they would not have otherwise performed

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Self-Incrimination

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The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. The Fifth Amendment forbids self-incrimination.

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Plea Bargaining

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A negotiation in which the defendant agrees to enter a plea of guilty to a lesser charge and the prosecutor agrees to drop a more serious charge

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Double Jeopardy

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When a person is tried twice for the same criminal offense (prohibited by the 5th amendment)

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Search Warrant

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An order authorizing law enforcement personnel to search particular premises or property

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Probably Cause

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Reasonable grounds for believing that a person should be arrested or searched

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Exclusionary Rule

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Any illegally obtained information (including not reading miranda rights) must be thrown out in court

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Phishing

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The attempt to acquire personal information from consumers by sending fake emails

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Trojan Horse

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A computer program that appears to perform a legitimate function but in fact performs a malicious act

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Vishing

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A variation of phishing that involves some form of voice communication

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Three sources of international law

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1. International customs

2. Treaties and International Agreements

3. International Organizations

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International Customs

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A general practice accepted as law

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Treaty

Back 148

A formal written agreement negotiated between two nations or among several nations

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International Organization

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Any membership group that operates across national borders

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The Principle of Comity

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One nation defers to and gives effect to the laws and judicial degrees of another nation

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The Act of State Doctrine

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The judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its own territory

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Sovereign Immunity

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A doctrine that immunizes foreign nations from the jurisdiction of U.S courts when certain conditions are satisfied

A sovereign government cannot be taken to court unless it agrees to be sued, it has engaged in commercial activity that has "a direct effect in the United States," when the foreign state has committed a tort in the US or has violated certain international laws

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Export Controls

Back 153

-No tax can be put on exported goods

-Quotas can control exports

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Quota

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A set limit on the amount of goods that can be imported

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Tariff

Back 155

A tax on imported goods

Front 156

Contract Clauses -- Forum-Selection Clause

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A provision in a contract designating the court, jurisdiction, or tribunal that will decide any disputes arising under the contract

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Contract Clauses -- Choice of Law Clause

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A clause in a contract designating the law that will be govern the contract

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Force Majeure Clause

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A provision in a contract saying that certain unforeseen events will excuse a party from liability for nonperformance of contractual obligations

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Alien Tort Claims Act (ATCA)

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Allows even foreign citizens to bring civil suits in U.S courts for injuries caused by violations of international law or a treaty of the United States

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Sherman Act

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The most important U.S antitrust law