Business Law Midterm

Front 1

Relevant areas of business law applicable to human resource management

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agency law, contracts, employment and labor law, employment discrimination

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regulates disputes between private individuals or groups

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Private Law

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regulates disputes between private individuals and their government or against society

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Public Law

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Private Law example

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Dispute between a tenant and landlord

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Public Law example

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Dumping in violation of state or federal law

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Delineates rights and responsibilities between a person or persons and their government

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Civil law

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Regulates incidents in which someone commits an act against the public as a whole

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Criminal Law

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What is the Hierarchy of Laws in the country

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U.S. Constitution, Federal Statutes, State Constitution, State Statutes, Common Law

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Collection of legal interpretations made by judges and are law unless revealed by new statutory law

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Common Law

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Past decisions in similar cases that guide later decisions thereby providing greater stability and predictability to the law

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Case Law Precedent

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When courts rely on precedent, they are obeying this principle (standing by their decision)

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Stare Decisis

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Rulings made in higher courts become ____ for lower courts

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binding precedent

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summaries of common law rules in a particular area of the law that has been enacted in most states

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Restatements of the law

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School of Jurisprudence that describes certain ethical laws and principles believed to be morally right and above the laws devised by humans

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Natural Law

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School of Jurisprudence that must abide by the duly authorized law, Law is distinct from morality

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Legal Positivism

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School of Jurisprudence that follows a tradition or custom to shape the law.

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Historical school

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School of Jurisprudence that is closely related to stare decisis

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Historical school

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School of Jurisprudence that judges consider more than just law, and should consider factors such as social and economic conditions

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Legal realism

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School of Jurisprudence that the law should yield more benefits than its costs, if resources are saved that can be used to obtain more goods and services

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Cost-Benefit Analysis

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Application to special problems and opportunities experienced by business people

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Business Ethics

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Decisions in choosing a method of production, Decisions regarding how to compete with competing firms, and social responsibilities of the firm

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Business Ethics

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What is the W in WPH Framework and give examples

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W - Who the decision impacts
Stakeholders such as employees/customers, management, community where the firm operates, and future generations

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Groups of people in a firm affected by the firms decisions

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Stakeholders

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What is the P in WPH Framework and what is based on

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Purpose of the decision and based on values

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The basic unit of business ethics, positive notions that capture our sense of what is good or desirable

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Values

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What does the H in WPH framework stand for?

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H - How to make a decision (guidelines)

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Do unto others as you would have them to do to you and what letter of the WPH framework does it deal with

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Golden Rule
The H in WPH framework

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If the public knew about this decision, how would you decideand what letter of the WPH framework does it deal with

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Public Disclosure

The H in WPH framework

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What would the world be like were decision was made by everyone else and what letter of the WPH framework does it deal with

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Universalization Test

The H in WPH framework

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The theory of ethics that denies existence of objective standards and individuals must evaluate actions based on what they feel is best for themselves

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Ethical Realism

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The theory of ethics that individuals must defer to a set of rules to guide them through the ethical decision making process

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Absolutism

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The theory of ethics that requires inquiry into the consequence of a decision when addressing ethical dilemmas

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Consequentialism

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The theory of ethics that managers should take actions that provide the greatest good after having subtracted harm associated with the action in question

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Utilitarianism

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The theory of ethics that whether a business decision is ethical depends on how the decision affects all those involved

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Principle of right

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The theory of ethics that development of virtues or positive character traits such as courage, justice, and truthfulness, is the basis for morality

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Virtue ethics

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Process that selects the jurors who will decide the case as well as 2 or three alternative jurors

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Voir Dire

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Allow a party to challenge a certain number of potential jurors without giving a reason

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Peremptory Challenges

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What is the exception to Peremptory challenges

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Party can't use solely race or gender

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The court that has original jurisdiction, have power to hear and decides cases when they first enter the legal system

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Trial Courts

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The court that reviews previous judicial decisions to determine whether the trial courts erred in decisions. Deal with the Question of Law

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Appellate courts

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Judges use this concerning application of a law

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Question of Law

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Judges use this to question about the events of the case

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Question of fact

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Type of Jurisdiction that Federal courts have over claims arising under federal statues

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Exclusive Jurisdiction

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Type of Jurisdiction that both state and federal courts have jurisdiction over a case

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Concurrent Federal Jurisdiction

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What is a way to get into federal court

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Diversity of citizenship or Diversity Jurisidiction

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Type of Jurisdiction that courts have the power to hear certain types of cases (like criminal, probate, or bankruptcy)

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Subject matter Jurisdiction

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Type of Jurisdiction that is over a certain thing (property of the state)

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In rem Jurisdiction

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Type of Jurisdiction thats over a defendants property unrelated to the plaintiffs claims

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Quasi in rem jurisdiction (attachment jurisdiction)

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What are the 2 elements of Diversity Jurisdiction

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1) Plaintiff and defendant reside in different states or countries
2) Controversy is over 75k

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How is diversity determined

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The courts use the party's residence

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Where are Corporations residents of

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The state they were incorporated or its principal place of business

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notifies the defendant of a lawsuit and explains how and when to respond to a complaint

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Summons

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Specifies factual and legal basis for a lawsuit

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Complaint

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Procedure by which the complaint and summons are served upon the defendant

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Service of process

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Judgement in favor of the plaintiff when the defendant fails to answer the complaint and plaintiff complaint alleges facts that would support

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Default judgement

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Pretrail motion that requests the court to consider all the facts in pleadings to be true and to apply law to the facts. The court grants if it finds that the only reasonable decision is in factor of the moving party

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Motion for judgement on pleadings

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Pretrial motion that asserts no factual disputes exist and if apply law to undisputed facts only reasonable decision would factor of moving party

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Motion for summary judgement

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Difference between Motion of Judgement on pleadings and Motion of summary Judgement

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Motion of summary judgement's moving party may use affidavits, relevant documents, depositions transcripts in support (extrinsic evidence is considered)

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How a party gathers information

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Discovery

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Type of discovery that has written questions that is answered under oath

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Interrogatories

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Type of discovery that forces opposing part to turn over certain info unless privileged

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Request to produce documents

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Type of discovery that attorneys examine a witness under oath, and a court reporter records every word the witness speaks

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Deposition

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refers to resolution of legal disputes through methods other than litigation. Also is less expensive and less time consuming then litigation

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Alternative Dispute Resolution

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Examples of Alternative Dispute Resolutions

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1) Negotiation

2) Mediation

3) Arbitration

4) Summary jury trials

5) Mini trials

6) Early neutral case evaluations

7) private trials

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Alternative Dispute Resolution that resolves dispute by a neutral 3rd party outside of judicial setting. Its a voluntary process in that parties have contractual agreement to ____ disputes

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Arbitration

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An agreement that stipulates how ____ is selected and admistrated

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Arbitration agreement

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What is an Arbitration hearing

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It's similar to trial, both parties represent themselves or have legal counsel present their case to a neutral 3rd party

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What is an Arbitration award and how many days does it take to make decision

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Award for winning the arbitration does not need to be monetary. Within 30 days after hearing

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Advantages of Arbitration

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More efficient and less expensive
More control over process by partys and get to choose the arbitrator
Arbitrator has greater flexibility with judgement then a judge

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Disadvantages of Arbitration

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Injustice more likely to occur since the appeal and award is very difficult to fight
Giving up right to litigate

The more that businesses use it the more its similar to litigation

Disputes are hidden in process from the public

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A method of securing Arbitration is a provision in contract that mandates disputes arising under contract settled by arbitration

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Binding Arbitration clause

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A method of securing Arbitration is in a contract providing specific dispute resolved through Arbitration

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Submission agreement

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In an Arbitration agreement when the terms are manifestly unfair or oppressive and are dictated by a dominant party so they aren't enforced

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Unconscionability contract provision

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Most popular form of an alternate dispute resolution

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Mediation

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Type of alternate dispute resolution that disputing parties select a neutral 3rd party to help facilitate communication and suggest ways to resolve

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Mediation

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If Mediation is successful they enter in a ____

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Mediation agreement

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Program where courts encourage or mandate use before bringing to trial

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Court-Annexed Alternative Dispute Resolution

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Principle that states that the 10th amendment says all powers not given to Federal or states are reserved to the states. Thus federal legislation affecting business must be based on express constitutional authority

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Federalism

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Clause that says any state or local law that directly conflicts with the constitution or federal laws or treaties is void

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Supremacy Clause

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Some areas both state and federal governments have the power to regulate the same subject matter

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Concurrent authority

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If the Federal government regulates an area of law exclusively any state law that contradicts will be deemed unconstitutional

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Federal preemption

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Congress has the power to regulate commerce with foreign nations, among several states, and Indian tribes. Also what article and section is this in?

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Commerce clause Article 1 section 8

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The first 10 amendments in the consistitution, that affects government regulations of business and prohibits the federal government from infringing on individuals rights is known as ____

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Bill of rights

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Which amendment is Freedom of speech and of the press (includes gestures and forms of expression)

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1st amendment

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1st amendment is not a ______. What does that include?

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Absolute right. Cant yell fire, make false statements of fact injurious to anothers reputation, use obscenity, no fighting words, or defamatory words

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Which amendment is the Right to keep and bear arms

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2nd amendment

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Which amendment Prohibits soldiers to reside in a private property without the owners consent

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3rd amendment

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Which amendment Prohibits government from conducting unreasonable search of individuals and seizing their property to use as evidence against them

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4th amendment

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Court order that authorizes law enforcement agents to search for and seize items specifically described in the ______

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Search warrent

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What do you need in order to get a search warrent

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Probable cause

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Which amendment protects against self incrimination. Also protects against double jeopardy

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5th amendment

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Clause that says the government cant deprive a person of life, liberty, or property without _____ of the law. Requires government to use fair procedures, entitles notice of legal action, and opportunity to be heard and impartial tribunal

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Due Process Clause

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Process that gives basic fairness of laws that deprive an individual of life liberty or property

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Substantive due process

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Which amendment extends the bill of rights to the statues thus both federal and state governments cant deprive individuals of their freedoms

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14th amendment

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Which amendment guarantees rights to a speedy and public criminal trial with the assistance of counsel and to cross examine witnesses and to solicit favorable testimony also guarantee the right to trial bu jury in criminal cases

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6th amendment

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Which amendment prohibits excessive bails and fines as well as cruel and unusual punishment

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8th amendment

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Which amendment guarantees the right to trial by jury in a civil case involving at least $20

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7th amendment

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Which amendment says people have rights in addition to ones specified in the constitution

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9th amendment

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Which amendment gives powers that the federal government doesn't have, the states and people have

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10th amendment

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Equal protection clause is under which amendment

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14th amendment

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What classification under the equal protection clause prevents individuals from exercising fundamental right. It involves suspect classification based on race, national origin, or citizenship

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Strict Scrutiny

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What classification under the equal protection clause of law classification is based on gender or legitimacy of children

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Intermediate Scrutiny

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What classification under the equal protection clause when classifications includes all other matters

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Rational Basis

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Which 2 elements must the government demonstrate of a crime in court

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Actus Reus and Mens rea
Which means a guilty act and a guilty mind

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What kind of crime is an exception to having to prove mens rea

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Strict liability crimes

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A crime that is liability without fault, applies to actions that regardless are specially prohibited

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Strict Liability crimes

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Example of Strict Liabilities

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Selling alcohol or cigs to a minor

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Classification of a serious crime, punishable by imprisonment for more than a year or death

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Felony

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Classification of a less serious crime punishable by fines or imprisonment for less than 1 year

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Misdemeanor

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Classification of minor misdemeanor, punishable by less than 6 months or small fine

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Petty offenses

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Example of a petty offense

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Violating a Building code

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Crime that is a forceful and unlawful taking of personal property

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Robbery

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Crime unlawfully entering a building with intent to commit a felony

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Burglary

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Crime that is secretive and wrongful taking and carrying away someones personal property with intent to permanently deprive

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Larceny

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Crime that is illegally obtaining property by false representations of existing fact with knowledge of falsity and intent to defraud

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False Pretenses

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Crime that is fraudulent making or altering writings that changes legal rights and liabilities of another

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Forgery

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Crime that is the wrongful conversion of another property by one lawfully in possession of it

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Embezzlement

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Explain the Miranda trial and who was it against

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Miranda V. Arizona
Ernesto Miranda was arrested for kidnapping and rape. 2 police officers obtain signed confession. Officers didn't advise right of attorney but sentenced to 20 - 30 years. Appealed to supreme court.

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The 5th amendment does not apply to _____

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Corporations

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Rule that holds that all evidence obtained in violation of 4th, 5th, and 6th amendments are not admissible in trial because its considered the "fruit of the poisonous tree"

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Exclusionary Rule

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Tool to fight business crime that prevents legitimate business from servings as covers for racketeering

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Racketeering Influenced and Corrupt organizations act (RICO)

Front 122

Tool to fight business crime since private citizens use it to sue employers for fraud against the government and what year

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False Claims Act (1986)

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Tool to fight business crime that enacted due to business scandals like Enron, Worldcom, Global Crossing, and Arthur Anderson and what year

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Sarbanes - Oxley Act (2002)

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Type of tort that occurs when defendant acts with the intention of engaging in a specific act that results in injury. Does not need to prove liability or intent to harm

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Intentional Tort

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Type of tort that the defendant fails to act in a responsible way and subjects other people to unreasonable risk of harm

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Negligent Tort

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Type of tort that the defendant takes action in something inherently dangerous and cant be undertaken safely

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Strict Liability Tort

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What does an intentional tort assume

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People intend normal consequences for their actions

Front 128

Tort against persons, property, or economic interest

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Intentional Tort

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Type of intentional tort that places fear or apprehension of an immediate offensive bodily contact. Words alone without action is insufficent

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Assult

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Type of intentional tort that is intentional unwanted bodily contact

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Battery

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Defense for Battery is

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Self defense, consent, defense of others, or defense of property

Front 132

Type of intentional tort that is intentional publication or telling a 3rd party a false statement harmful to someones reputaton

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Defamation

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Defense for Defamation is

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Truth, absolute privilege, and conditional privilege

Front 134

What is Absolute Privilege

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testifying in court, trial, or congressional debate

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What is Conditional Privilege

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No liability unless statement made with actual malice or knowledge of falsity

Front 136

Type of intentional tort that when confined or restricted against free will for appreciable period of time

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False Imprisonment

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Exception to an intentional tort that retailers and security guards may reasonably by question suspected shoplifters and detain for reasonable time

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Shopkeepers Privilege

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Damages awarded for torts that put the plaintiff in position of tort didn't occur. Attorney fees not included but pain and suffering damages are

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Compensatory Damages

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Damages awarded for torts that is the minimal amount that signifies defendants behavior was wrongful but caused no harm (around 1 - 5 dollars) But may have to pay attorney fees

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Nominal Damages

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Damages awarded for torts that is to punish the defendant and deter such conduct again based on severity and wealth

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Punitive Damages

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4 Elements of Negligence

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1) Duty

2) Breach of duty

3) Causation

4) Damages

Front 142

Element of Negligence that is the standard care of a reasonable person

Back 142

Duty

Front 143

Element of Negligence that you must prove actual cause (cause in fact) and proximate cauation

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Causation

Front 144

Element of Negligence that compensable loss suffered by plaintiff

Back 144

Damages

Front 145

Cant be avoided not considered Negligence

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Unfortunate accident

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Measurement of the way members of society expect an individual to act in given situation

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Reasonable person standard

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Tort law says you do not have to rescue strangers even if its easily accomplished

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No duty to rescue

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2 Exceptions to duty to rescue

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Special relationship (parent/child, student/teacher, husband/wife)
If you're a tortfeaser

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The person committing the tort

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Tortfeasor

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What is actual cause

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(cause in fact) determination that the defedants breach of duty resulted directly with the injury

"but - for" causation

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What is proximate cause

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(legal cause) matter of public policy a defendant may be held liable for consequences

Front 152

Special plaintiff doctrines/statues that permits judge or jury to infer that the defendant negligence was the cause of the plaintiffs harm when no direct evidence of defendants lack of due care

Back 152

Res Ipsa Loquitur

Front 153

Special plaintiff doctrines/statues that allows bartenders and bar owners liable for injuries caused by intoxicated people at the bar

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Dram Shop Acts

Front 154

Type of Negligence that allows the defendant to entirely escape liability if plaintiff contributed to the harm

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Contributory

Front 155

Type of Negligence that court determines the percentage of fault of the defendant

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Pure comparative Negligence

Front 156

Type of Negligence that defendant must be more then 50% at fault

Back 156

Modified comparative negligence

Front 157

Allows defendant to escape liability by establishing plaintiff was fully aware of harm that could possibly occur from the activity engaged

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Assumption of risk

Front 158

Persons engaged in activities that are dangerous that no amount of due care makes safe

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Strict Liability

Front 159

Defense for Negligence that people in peril receive voluntary aid from others cannot hold liable for negligence

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Good Samaritan statutes

Front 160

Defense for Negligence that is an unforeseeable event that happens interrupting defendants breach of duty and damages plaintiff suffered

Back 160

Superseding cause

Front 161

Distinctive word, design, picture, or arrangement used with a product that helps consumers identify

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Trademark

Front 162

Example of a trademark

Back 162

Nike Logo, 7-11 color scheme, Lego sign

Front 163

How is a trademark protected and under what act and year

Back 163

Must register with the U.S. patent and trademark office under the Lanham Act of 1947

Front 164

1st renewal of a trademark must be done between____ and every ___ after that

Back 164

5th and 6th year and every 10 years after that (unless before 1990 then its 20 years)

Front 165

Strength of a trademark that has no protection and refers to the type of product

Back 165

Generic

Front 166

Strength of a trademark that has a single characteristic and must obtain a secondary meaning to obtain protection

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Descriptive

Front 167

Strength of a trademark that the 2nd strongest

Back 167

Suggestive

Front 168

Strength of a trademark that has the most protection

Back 168

Arbitrary or Fanciful

Front 169

If infringed on a trademark the courts will consider what

Back 169

1) Degree of similarity between marks

2) Evidence of actual confusion

3) Users good faith

4) Quality of users product

5) Sophistication of purchasers

Front 170

Protects fixed form of expression of original creative or idea

Back 170

Copyright

Front 171

Doctrine that provides copyrighted work for criticism, comment, news, reporting, teaching, scholarship, and research (most common defense in allegation)

Back 171

Fair use doctrine

Front 172

Protects product, process, invention, machine, or plant produced with asexual reproduction. Must meet criteria of novel, useful, and nonobvious

Back 172

Patent

Front 173

Patent allows user to be paid royalties if they let someone else use under which act

Back 173

Lanham act 1947

Front 174

When can you sue someone for a trade secret

Back 174

If you can prove there was a trade secret to begin with and that the defendant acquired through unlawful means and without permission