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140 Cards in this Set
- Front
- Back
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4 Sources of American Law
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1. Constitutional Law
2. Statutory Law 3.Administrative Law 4. Common Law |
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Constitutional law
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Fundamental laws from state and federal constitution that establish authority for fovernment and organize the government
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Statutory Law
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laws set forth by legislative bodies
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Administrative Law
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laws set forth by an administrative agency
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Common Law
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evolving set of laws established by precedent
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Stare decisis
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common law principle by which precedents within jurisdiction become binding
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Example of common law
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roe v. wade: abortion rights
brown v. board of education: separate but equal not legal |
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ethics
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right and wrong behavior in society
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business ethics
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right and wrong behavior in business
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minimum standard/ moral minimum
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law is the absolute minimum standard for ethical behavior in business
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Categorical Imperative
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concept developed by Immanual Kant as an ethical guideline for behavior
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Outcome based Ethics
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1. concerned with society as an ethical unit
2. measure outcomes in goods and bads 3. cost benefit analysis 4. ends justify the means |
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Duty based ethics
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1. individual
2. categorical imperative 3. rights and duties 4. the means will never justify the end` |
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Theories which business ethics is based
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1. Revealed Ethics
2. Kantian Ethics (categorical imperative) 3. Principle of Rights |
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Revealed ethics
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absolute to believers, elements of compassion
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Principles of Rights
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all individuals have rights and rights have corresponding duties
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ADR
alternative dispute resolution |
1. Negotiation
2. Mediation 3. Arbritration -binding -non-binding |
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Mediation
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arites resolve dispute among themselves with help of nuetral 3rd party
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Abritration
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neutral 3rd party resolves a disprute
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Non binding arbritration
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parties dont have to agree with arbritrator
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Binding Arbritration
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parties have to agree with arbritrator
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negotiation
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parties resolved dispute among themselves
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Law
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enforceable rules governing society
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Business Law
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enforceable rules governing business
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Trial Court
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Facts and Law
1. Judge 2. Jury 3. Defendant 4. Plaintiff |
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Appellate Court
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Law only (no jury/evidence)
1.Judge 2. Plaintiff 3. Defendant |
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Judge
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enforces the law
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Jury
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weigh the facts and decide verdict
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Plaintiff
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person bringing forth the legal action
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Defendant
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person responding to the legal action
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Federal Matters
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immigration, tax, bankruptcy (feds only interested in big crimes)
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State Matters
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family and probate
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tort
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wrong against an individual
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crime
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wrong against society
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2 categories of torts
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Intentional and Unintentional
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Intentional Torts
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Property
Person |
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Unintentional torts
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Tort of Negligence
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Negligence
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Accidental harm caused by breach of duty
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What is the purpose of Tort Law
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To right a wrong
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Reasonable Person's standard
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hypothetical standard against which person's behavior in society is measured
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4 qualities of a reasonable person
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1. Careful
2. Conscientious 3. Dispassionate 4. Honest |
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careful person
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aware of surroundings and acts appropriately given their environment
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Conscientious person
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pays attention to their own actions and acts appropriately given their activity
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Dispassionate person
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places head before heart
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Honest person
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acts in accordance with the law and is free of deceit
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Duty of Care
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Party's obligation to behave reasonably in society
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4 Questions of Negligence
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1. Did defendant owe plaintiff duty of care?
2. Did defendant breach duty of care? 3. Was plaintiff harmed? 4. Was defendants ;breach the proximate cause of plaintiff's harm |
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defense against a tort
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reason why a defendant is not liable
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Intellectual property
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product of the creative process
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3 Different groups of intellectual property
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1. patents: software
2. copyright: photo 3. trademark: logo |
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patent
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exclusive right granted by government over and organizations design or process
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copyrights
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exclusive right granted by governent to the creator of writings, art and other similar property
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trademark
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exclusive right granted by government to logos, slogans and other similar property of commercial value
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Differences between crimes and torts
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1. Crime
-wrong against society -beyond a reasonable doubt - guilty/not guilty ($$, jail, death: losses of liberty) Tort: -wrong against individual -preponderance of evidence -liable or not liable (remedies at law/equity) |
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Beyond a reasonable doubt (Crime)
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burdern of proof in a criminal action by which the jury finds that there is no reasonable doubt that the defendant is guilty
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Preponderance of Evidence
(Tort) |
burden of proof in a civil action by which the jury concludes that it is more likley than not that the defendant is liable
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2 elements of a crime
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mens rea: wrongful state of mind
actus reas: overt illegal act |
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4 elements of a contract
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1. Agreement
2. Consideration 3. Capacity 4. Legality |
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Agreement
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offer and acceptance among parties
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Consideration
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that value which obligates the performance of a duty
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Capacity
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the ability to agree
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Legality
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the lawfullness of that purpose and form of a contract
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Contract
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enforceable agreement
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Types of Contracts
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unilateral/bilateral
expressed/implied formal/informal |
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Unilateral and Bilateral Contract
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Unilateral: value for a performance
Bilateral: value for a value |
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Formal and Informal Contract
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Formal: contract which requires a special form
Informal: contract which doesnt require a special form |
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Implied and Expressed Contract
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Implied: terms are understood
Expressed: terms are stated |
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3rd party incidental beneficiaries
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incedentially benefit was not reason contract was formed
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3rd party intended beneficiary
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intended by design to benefit from the contracts
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3rd party
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a person involved in a contract but not a party to the agreement
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Article 2 of UCC
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Sale of Goods
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Article 2a of UCC
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Lease of goods
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Uniform Commercial Code
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set of model laws which have been adopted in part or in whole by all 50 states whose purpose is to increase trade
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UCC is good because
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1. reduced uncertainty
2. increases transparency of the law 3. protects consumers by placing certain burdens on merchants 4. simplifies trade |
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Duty of seller
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tender conforming goods
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Duty of buyer
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accept and pay for conforming goods
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Seller's Breach
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-not tender
-send non-conforming goods |
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Buyer's Breach
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-not accept
-not pay |
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Seller's Breach & Buyer's Remedies
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Goods in:
Seller's possession -recover -s.p Buyer possession -damages -s.p In transit -damages s.p |
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Buyer's Breach & Seller's Remedies
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Goods in:
Sellers, Buyers, In Transit Possesion -damages -s.p |
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Product Liability
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strict liability applied to goods
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Defense against product liability
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reason why a merchant is not liable for a defective product
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Implied warranty of title
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understood guarantee that seller may transfer rights
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Implied warranty of merchant ability
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goods are reasonably fit for general purpose for which intended
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implied warranty of fitness for a particular use
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understood guarantee that a good will be reasonably fit for the specific performance specified by a buyer
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expressed warranty
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stated guarantee
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limited warranty
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limit sellers responsiblity or obligation
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Implied warranty of title
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understood guarantee that seller may transfer rights
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Implied warranty of merchant ability
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goods are reasonably fit for general purpose for which intended
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implied warranty of fitness for a particular use
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understood guarantee that a good will be reasonably fit for the specific performance specified by a buyer
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expressed warranty
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stated guarantee
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limited warranty
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limit sellers responsiblity or obligation
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strict liability
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liability without breach of duty
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5 elements of product liability
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1. seller is a merchant
2. goods must be in defective condition when bought/sold 3. product must be unreasonably dangerous 4. was the plaintiff harmed 5. was the defect by the defendant proximate cause of plaintiff's harm |
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Article 3 of UCC
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Negotiable Instruments
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Negotiable Instruments
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a written unconditional order or promise to pay an exact amount of money to a payee/ bearer payable upon demand signed by a drawor/maker
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Negotiable Instruments
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Orders to Pay:
-check -draft Promises to pay: -promisory notes -certificates of deposit |
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promisory note
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signed writing making unconditional promise to pay a bearer upon demand signed by a maker
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Certificate of Deposits (CD)
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promise to pay depositer a certain amount
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Cashier's Check
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only 2 parties are involved, same as cash
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Certified Check
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certified to payee that drawer has ready funds
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bankruptcy
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federal statutes that protect debtors from lenders
-discharges debtors from contractual duty |
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What is the purpose of bankruptcy
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let people continue to take risk
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Chapter 7 bankruptcy
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liquidation bankruptcy, either individual/corporation
-bankruptcy trustee calculates assets and debts, liquidate assets and pay off debts |
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Chapter 11 Bankruptcy
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reorganization or restructuring bankruptcy, only available to corporations
-trustee reorganizes debt |
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Chapter 13
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individual debt repayment plan
-trustee orders payment plans |
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5 Categories of Crimes
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Violent
Property Public Order White Collar Organized |
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probable cause
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government's reasonable belief based on evidence that wrongdoing has occured, will occur or is occuring
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exclusionary rule
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prevents illegally obtained evidence from being used in the court of law
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3 common law requirements of an offer
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communicated to the offeree
reasonable specificity objective intent |
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privity of contract
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contracts are just between the parties
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contracts that must be in written form
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land
sale of goods valued over $500 take more than 1 year to fulfill marriage collateral promises |
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what is the most common way for a duty to be discharged
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performance
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specific performance SP
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equitable remedy when first party seeks a court order for a second party to perform their duty
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3 different types of crimes
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felony
misdemeanor petty |
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equitable principles and maxims
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common law philosophies that introduce fairness and justice
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Justice Theory questions
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1. Is it Legal?
2. Is it balanced? 3. Who are the winner's and losers? 4. How does it make me feel about myself? |
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Discovery
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the process by which litigates gather information and evidence from one another
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state jurisdiction
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state may assert jurisdiction over property within its border
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Inrem
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property jurisdiction
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Inpersonam
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person "minimum contact"
est. by residence or significant activity |
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Judicial review
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Common Law Principle by which court interprets the law
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example of statutory law
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car insurance
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long arm statute
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state asserts jurisdiction over a non citizen
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standing to sue
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in order to sue another party plaintiff must have suffered a loss at stake
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Example of constitutional law
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Bill of rights
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Example of administrative law
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nutritional facts
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Marbury v Madison
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1803 established judicial review
J. Adams: 2nd president of US T. Jefferson: defeated Adams and was 3rd president of US J. Marshall:Adam's sec. of state and US SC Justice W. Marbury: strongly involved in politics supported Adams |
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domain name
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discreet location on the web- a url
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Constitutional Safeguards to a crime
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probable cause
exclusionary rule |
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agreement
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offer and acceptance among parties
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lein
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reduction in owner's rights
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justifiable reliance
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defense based on elements
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proximate cause
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direct unintervened cause of an outcome
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compensetory damages
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those losses resulting directly from a breach of duty
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meta tags
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information both visible and invisisble embedded in the url
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capacity
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parties ability to enter into an agreement
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3 exceptions to capacity
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1. intoxication
2. MI 3. infancy |
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disaffirmance
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process by which a minor can avoid a contractual duty
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legality requirements
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1. must NOT be contrary to statute
2. contrary to public policy |
