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Business Law 12th Edition – Clarkson

stare decisis
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
administrative agency
A federal, state, or local government agency established to perform a specific function. Authorized by legislative acts to make and enforce rules to administer and enforce the acts.
administrative law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
To state, recite, assert, or charge.
In logical reasoning, an assumption that if two things are similar in some respects, they will be similar in other respects also. Often used in legal reasoning to infer the appropriate application of legal principles in a case being decided by referring to previous cases involving different facts but considered to come within the policy underlying the rule.
The party who takes an appeal from one court to another.
The party against whom an appeal is taken—that is, the party who opposes setting aside or reversing the judgment.
binding authority
Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.
To violate a law, by an act or an omission, or to break a legal obligation that one owes to another person or to society.
case law
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
case on point
A previous case involving factual circumstances and issues that are similar to those in the case before the court.
An adviser to the king at the time of the early king’s courts of England. Individuals petitioned the king for relief when they could not obtain an adequate remedy in a court of law, and these petitions were decided by the chancellor.
A reference to a publication in which a legal authority—such as a statute or a court decision—or other source can be found.
civil law
The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.
common law
That body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.
constitutional law
Law that is based on the U.S. Constitution and the constitutions of the various states.
court of equity
A court that decides controversies and administers justice according to the rules, principles, and precedents of equity.
court of law
A court in which the only remedies that could be granted were things of value, such as money damages. In the early English king’s courts, courts of law were distinct from courts of equity.
criminal law
Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands redress
cyber law
An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.
Money sought as a remedy for a breach of contract or for a tortious act.
One against whom a lawsuit is brought; the accused person in a criminal proceeding.
Reasons that a defendant offers in an action or suit as to why the plaintiff should not obtain what he or she is seeking.
equitable maxims
General propositions or principles of law that have to do with fairness (equity).
executive agency
An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments.
historical school
A school of legal thought that emphasizes the evolutionary process of law and that looks to the past to discover what the principles of contemporary law should be.
independent regulatory agency
An administrative agency that is not considered part of the government’s executive branch and is not subject to the authority of the president. Independent agency officials cannot be removed without cause.
The science or philosophy of law.
The equitable doctrine that bars a party’s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights.
A body of enforceable rules governing relationships among individuals and between individuals and their society.
legal positivism
A school of legal thought that holds that there can be no higher law than a nation’s positive law—law created by a particular society at a particular point in time. In contrast to the natural law school, the positivist school maintains that there are no “natural” rights; rights come into existence only when there is a sovereign power (government) to confer and enforce those rights.
legal realism
A school of legal thought that was popular in the 1920s and 1930s and that challenged many existing jurisprudential assumptions, particularly the assumption that subjective elements play no part in judicial reasoning. Legal realists generally advocated a less abstract and more pragmatic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take place. The school left a lasting imprint on American jurisprudence.
legal reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.
natural law
The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.
A statement by the court expressing the reasons for its decision in a case
A law passed by a local governing unit, such as a municipality or a county.
In equity practice, a party that initiates a lawsuit
One who initiates a lawsuit.
A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts.
procedural law
Rules that define the manner in which the rights and duties of individuals may be enforced.
public policy
A government policy based on widely held societal values and (usually) expressed or implied in laws or regulations.
The relief given to an innocent party to enforce a right or compensate for the violation of a right.
remedy at law
A remedy available in a court of law.
remedy in equity
A remedy allowed by courts in situations where remedies at law are not appropriate. Based on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission and restitution, and reformation.
A publication in which court cases are published, or reported.
In equity practice, the party who answers a bill or other proceeding.
sociological school
A school of legal thought that views the law as a tool for promoting justice in society.
statute of limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.
statutory law
The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).
substantive law
Law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law, which defines the manner in which these rights and duties may be enforced.
A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion.
uniform law
A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.
in personam jurisdiction
Court jurisdiction over the “person” involved in a legal action; personal jurisdiction.
in rem jurisdiction
Court jurisdiction over a defendant’s property.
alternative dispute resolution
The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
american arbitration association (AAA)
The major organization offering arbitration services in the United States.
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding.
arbitration clause
A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
In the context of litigation, the amount of money awarded to a plaintiff in a civil lawsuit as damages. In the context of arbitration, the arbitrator’s decision.
bankruptcy court
A federal court of limited jurisdiction that handles only bankruptcy proceedings. Bankruptcy proceedings are governed by federal bankruptcy law.
concurrent jurisdiction
Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in either a federal or a state court.
diversity of citizenship
Under Article III, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases.
early neutral case evaluation
A form of alternative dispute resolution in which a neutral third party evaluates the strengths and weakness of the disputing parties’ positions; the evaluator’s opinion forms the basis for negotiating a settlement.
exclusive jurisdiction
Jurisdiction that exists when a case can be heard only in a particular court or type of court, such as a federal court or a state court.
federal question
A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
judicial review
The process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch.
The authority of a court to hear and decide a specific action
justiciable controversy
A controversy that is not hypothetical or academic but real and substantial. A requirement that must be satisfied before a court will hear a case.
The process of resolving a dispute through the court system.
long arm statute
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have “minimum contacts” with that state for the statute to apply.
A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.
A private proceeding in which each party to a dispute argues its position before the other side and vice versa. A neutral third party may be present and act as an adviser if the parties fail to reach an agreement.
(1) In regard to dispute settlement, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them. (2) In regard to instruments, the transfer of an instrument in such a way that the transferee (the person to whom the instrument is transferred) becomes a holder.
online dispute resolution (ODR)
The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet.
probate court
A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person’s estate.
question of fact
In a lawsuit, an issue involving a factual dispute that can only be decided by a judge (or, in a jury trial, a jury).
question of law
In a lawsuit, an issue involving the application or interpretation of a law; therefore, the judge, and not the jury, decides the issue.
rule of four
A rule of the United States Supreme Court under which the Court will not issue a writ ofcertiorari unless at least four justices approve of the decision to issue the writ.
small claims court
Special courts in which parties may litigate small claims (usually, claims involving $2,500 or less). Attorneys are not required in small claims courts, and in many states attorneys are not allowed to represent the parties.
standing to sue
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 either has been injured or threatened with injury.
summary jury trial
A method of settling disputes in which a trial is held, but the jury’s verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
The geographical district in which an action is tried and from which the jury is selected.
writ of certiorari
A writ from a higher court asking the lower court for the record of a case.
voir dire
A French phrase meaning, literally, “to see, to speak.” In jury trials, the phrase refers to the process in which the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.
A written or printed voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.
affirmative defense
A response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. An example is the running of the statute of limitations.
Procedurally, a defendant’s response to the plaintiff’s complaint
A formal legal document submitted by the attorney for the appellant—or the appellee (in answer to the appellant’s brief)—to an appellate court when a case is appealed. The appellant’s brief outlines the facts and issues of the case, the judge’s rulings or jury’s findings that should be reversed or modified, the applicable law, and the arguments on the client’s behalf.
closing argument
An argument made after the plaintiff and defendant have rested their cases. Made prior to the jury charges.
The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.
The questioning of an opposing witness during a trial.
default judgement
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim.
The testimony of a party to a lawsuit or a witness taken under oath before a trial.
direct examination
The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney’s client.
A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
A type of evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data
federal rules of civil procedure
The rules controlling procedural matters in civil trials brought before the federal district courts.
An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as evidence.
A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.
A procedural request or application presented by an attorney to the court on behalf of a client.
motion for direct verdict
In a state court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.
motion for a judgement as a matter of law
In a federal court, a party’s request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.
motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.
motion for judgement n.o.v.
A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.
motion for judgement on the pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.
motion for summary judgement
A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
motion to dismiss
A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.
opening statement
A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation; the complaint and answer are part of the pleadings.
pretrial conference
A conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit. The parties may settle the dispute, clarify the issues, schedule discovery, and so on during the conference.
pretrial motion
A written or oral application to a court for a ruling or order, made before trial.
The refutation of evidence introduced by an adverse party’s attorney.
The defendant’s answer to the plaintiff’s rebuttal.
relevant evidence
Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only evidence that is admissible in court.
rules of evidence
Rules governing the admissibility of evidence in trial courts.
service of process
The delivery of the complaint and summons to a defendant.
A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint. The document is delivered by a sheriff or any other person so authorized.
A formal decision made by a jury.
writ of execution
A court’s order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.
bill of rights
The first ten amendments to the U.S. Constitution.
checks and balances
The national government is composed of three separate branches: the executive, the legislative, and the judicial branches. Each branch of the government exercises a check on the actions of the others.
commerce clause
The provision in Article I, Section 8, of the U.S. Constitution that gives Congress the power to regulate interstate commerce.
due process clause
The provisions of the Fifth and Fourteenth Amendments to the Constitution that guarantee that no person shall be deprived of life, liberty, or property without due process of law. Similar clauses are found in most state constitutions.
equal protection clause
The provision in the Fourteenth Amendment to the Constitution that guarantees that no state will “deny to any person within its jurisdiction the equal protection of the laws.” This clause mandates that state governments treat similarly situated individuals in a similar manner.
establishment clause
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from creating any law “respecting an establishment of religion.”
federal form of government
A system of government in which the states form a union and the sovereign power is divided between a central government and the member states.
filtering software
A computer program that includes a pattern through which data are passed. When designed to block access to certain Web sites, the pattern blocks the retrieval of a site whose URL or key words are on a list within the program.
free exercise clause
The provision in the First Amendment to the U.S. Constitution that prohibits Congress from making any law “prohibiting the free exercise” of religion.
full faith and credit clause
A clause in Article IV, Section 1, of the Constitution that provides that “___ ___ and ___ shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.” The clause ensures that rights established under deeds, wills, contracts, and the like in one state will be honored by the other states and that any judicial decision with respect to such property rights will be honored and enforced in all states.
meta tags
Words inserted into a Web site’s key-words field to increase the site’s appearance in search engine results.
police powers
Powers possessed by states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare.
A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.
privileges and immunity clause
Special rights and exceptions provided by law. Article IV, Section 2, of the Constitution requires states not to discriminate against one another’s citizens. A resident of one state cannot be treated as an alien when in another state; he or she may not be denied such ___ and ___ as legal protection, access to courts, travel rights, and property rights.
probable cause
Reasonable grounds to believe the existence of facts warranting certain actions, such as the search or arrest of a person.
search warrant
An order granted by a public authority, such as a judge, that authorizes law enforcement personnel to search particular premises or property.
supremacy clause
The provision in Article VI of the Constitution that provides that the Constitution, laws, and treaties of the United States are “the supreme Law of the Land.” Under this clause, state and local laws that directly conflict with federal law will be rendered invalid.
symbolic speech
Nonverbal conduct that expresses opinions or thoughts about a subject. Symbolic speech is protected under the First Amendment’s guarantee of freedom of speech.
business ethics
Ethics in a business context; a consensus of what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting
categorical imperative
A concept developed by the philosopher Immanuel Kant as an ethical guideline for behavior. In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
corporate social responsibility
The concept that corporations can and should act ethically and be accountable to society for their actions.
cost-benefit analysis
A decision-making technique that involves weighing the costs of a given action against the benefits of the action.
ethical reasoning
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand.
Moral principles and values applied to social behavior.
moral minimum
The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law.
principle rights
The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). Those who adhere to this “rights theory” believe that a key factor in determining whether a business decision is ethical is how that decision affects the rights of others. These others include the firm’s owners, its employees, the consumers of its products or services, its suppliers, the community in which it does business, and society as a whole.
stock buyback
Sometimes, publicly held companies use funds from their own treasuries to repurchase their own stock, with the result being that the price of the stock usually goes up.
stock options
A certificate that grants the owner the option to buy a given number of shares of stock, usually within a set time period.
An approach to ethical reasoning in which ethically correct behavior is not related to any absolute ethical or moral values but to an evaluation of the consequences of a given action on those who will be affected by it. In utilitarian reasoning, a “good” decision is one that results in the greatest good for the greatest number of people affected by the decision.
Capable of serving as the basis of a lawsuit.
actual malice
A condition that exists when a person makes a statement with either knowledge of its falsity or a reckless disregard for the truth. In a defamation suit, a statement made about a public figure normally must be made with actual malice for liability to be incurred.
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.
Any word or action intended to make another person fearful of immediate physical harm; a reasonably believable threat.
The unprivileged, intentional touching of another.
business tort
Wrongful interference with the business rights of another.
compensatory damages
A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.
The wrongful taking, using, or retaining possession of personal property that belongs to another
cyber tort
A tort committed via the Internet.
Any published or publicly spoken false statement that causes injury to another’s good name, reputation, or character.
disparagement of property
An economically injurious false statement made about another’s product or property. A general term for torts that are more specifically referred to as slander of quality or slander of title.
fraudulent misrepresentation
Any misrepresentation, either by misstatement or omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment.
intentional tort
A wrongful act knowingly committed.
Defamation in writing or other form (such as in a videotape) having the quality of permanence.
In tort law, the ability to act contrary to another person’s right without that person’s having legal redress for such acts. Privilege may be raised as a defense to defamation.
public figure
Individuals who are thrust into the public limelight. Public figures include government officials and politicians, movie stars, well-known businesspersons, and generally anybody who becomes known to the public because of his or her position or activities.
A salesperson’s exaggerated claims concerning the quality of goods offered for sale. Such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties.
punitive damages
Money damages that may be awarded to a plaintiff to punish the defendant and deter future similar conduct.
Defamation in oral form.
slander of quality
The publication of false information about another’s product, alleging that it is not what its seller claims
slander of title
The publication of a statement that denies or casts doubt on another’s legal ownership of any property, causing financial loss to that property’s owner. Also called trade libel.
Bulk, unsolicited (junk) e-mail.
A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another.
One who commits a tort.
trade libel
The publication of false information about another’s product, alleging it is not what its seller claims; also referred to as slander of quality.
trespass to land
The entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization.
trespass to personal property
The unlawful taking or harming of another’s personal property; interference with another’s right to the exclusive possession of his or her personal property.
res ipsa loquitur
A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means “the facts speak for themselves.”
assumption of risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
business invitee
Those people, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.
causation in fact
An act or omission without (“but for”) which an event would not have occurred.
comparative negligence
A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person’s proportionate negligence.
contributory negligence
A theory in tort law under which a complaining party’s own negligence contributed to or caused his or her injuries. Contributory negligence is an absolute bar to recovery in a minority of jurisdictions.
dream shop act
A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.
duty of care
The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the “reasonable person standard,” constitutes the tort of negligence.
good samaritan statute
A state statute that provides that persons who rescue or provide emergency services to others in peril—unless they do so recklessly, thus causing further harm—cannot be sued for negligence.
Professional misconduct or the failure to exercise the requisite degree of skill as a professional. Negligence—the failure to exercise due care—on the part of a professional, such as a physician or an attorney, is commonly referred to as malpractice.
The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
negligence per se
An act (or failure to act) in violation of a statutory requirement.
proximate cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
reasonable person standard
The standard of behavior expected of a hypothetical “reasonable person.” The standard against which negligence is measured and that must be observed to avoid liability for negligence.
strict liability
Liability regardless of fault. In tort law, strict liability may be imposed on defendants in cases involving abnormally dangerous activities, dangerous animals, or defective products.
superseding cause
An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability.
certification mark
A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or accuracy of the owner’s goods or services. When used by members of a cooperative, association, or other organization, such a mark is referred to as a collective mark. Examples of certification marks include the “Good Housekeeping Seal of Approval” and “UL Tested.”
cloud computing
The delivery to users of on-demand services from third-party servers over a network. Cloud computing is a delivery model. The most widely used cloud computing services are Software as a Service (SaaS), which offers companies a cheaper way to buy and use packaged applications that are no longer run on servers in house.
collective mark
A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality, or accuracy of the specific goods or services. Examples include the labor union marks found on tags of certain products and the credits of movies, which indicate the various associations and organizations that participated in the making of the movies.
The exclusive right of authors to publish, print, or sell an intellectual production for a statutory period of time. A copyright has the same monopolistic nature as a patent or trademark, but it differs in that it applies exclusively to works of art, literature, and other works of authorship, including computer programs.
cyber mark
A trademark in cyberspace.
cyber squatting
The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and then offering to sell that domain name back to the trademark owner.
With respect to trademarks, a doctrine under which distinctive or famous trademarks are protected from certain unauthorized uses of the marks regardless of a showing of competition or a likelihood of confusion. Congress created a federal cause of action for dilution in 1995 with the passage of the Federal Trademark Dilution Act.
distributed network
A network that can be used by persons located (distributed) around the country or the globe to share computer files.
domain name
The series of letters and symbols used to identify site operators on the Internet; Internet “addresses.”
intellectual property
Property resulting from intellectual, creative processes. Patents, trademarks, and copyrights are examples of intellectual property.
A revocable right or privilege of a person to come on another person’s land.
meta tags
Words inserted into a Web site’s key-words field to increase the site’s
A government grant that gives an inventor the exclusive right or privilege to make, use, or sell his or her invention for a limited time period.
peer to peer networking
The sharing of resources (such as files, hard drives, and processing styles) among multiple computers without necessarily requiring a central network server.
service mark
A mark used in the sale or the advertising of services, such as to distinguish the services of one person from the services of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks.
trade dress
The image and overall appearance of a product—for example, the distinctive decor, menu, layout, and style of service of a particular restaurant. Basically, ___ ___ is subject to the same protection as trademarks.
trade name
A term that is used to indicate part or all of a business’s name and that is directly related to the business’s reputation and goodwill. Protected under the common law (and under trademark law, if the name is the same as the firm’s trademark).
trade secret
Information or a process that gives a business an advantage over competitors who do not know the information or process.
A distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once this is established (under the common law or through registration), the owner is entitled to its exclusive use.
Registering a name that is a misspelling of a popular brand, such as hotmai.com or myspac.com.
actus reus
A guilty (prohibited) act. The commission of a prohibited act is one of the two essential elements required for criminal liability, the other element being the intent to commit a crime.
mens rea
Mental state, or intent. A wrongful mental state is as necessary as a wrongful act to establish criminal liability. What constitutes a mental state varies according to the wrongful action. Thus, for murder, the mens rea is the intent to take a life. For theft, the it must involve both the knowledge that the property belongs to another and the intent to deprive the owner of it
The malicious burning of another’s dwelling. Some statutes have expanded this to include any real property regardless of ownership and the destruction of property by other means—for example, by explosion.
beyond a reasonable doubt
The standard used to determine the guilt or innocence of a person criminally charged.
The unlawful entry into a building with the intent to commit a felony. (Some state statutes expand this to include the intent to commit any crime.)
computer crime
Any wrongful act that is directed against computers and computer parties, or wrongful use or abuse of computers or software.
A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment—or, in some cases, death.
cyber crime
A crime that occurs online, in the virtual community of the Internet, as opposed to the physical world.
cyber fraud
Fraud that involves the online theft of credit card information, banking details, and other information for criminal use.
A hacker whose purpose is to exploit a target computer for a serious impact, such as the corruption of a program to sabotage a business.
double jeopardy
A situation occurring when a person is tried twice for the same criminal offense; prohibited by the Fifth Amendment to the Constitution.
Unlawful pressure brought to bear on a person, causing the person to perform an act that he or she would not otherwise perform.
The fraudulent appropriation of money or other property by a person to whom the money or property has been entrusted.
In criminal law, a defense in which the defendant claims that he or she was induced by a public official—usually an undercover agent or police officer—to commit a crime that he or she would otherwise not have committed
exclusionary rule
In criminal procedure, a rule under which any evidence that is obtained in violation of the accused’s constitutional rights guaranteed by the Fourth, Fifth, and Sixth Amendments, as well as any evidence derived from illegally obtained evidence, will not be admissible in court.
A crime—such as arson, murder, rape, or robbery—that carries the most severe sanctions, usually ranging from one year in a state or federal prison to the forfeiture of one’s life.
The fraudulent making or altering of any writing in a way that changes the legal rights and liabilities of another.
grand jury
A group of citizens called to decide, after hearing the state’s evidence, whether a reasonable basis (probable cause) exists for believing that a crime has been committed and whether a trial ought to be held.
A person who uses one computer to break into another. Professional computer programmers refer to such persons as “crackers.”
identity theft
The act of stealing another’s identifying information—such as a name, date of birth, or Social Security number—and using that information to access the victim’s financial resources
A charge by a grand jury that a reasonable basis (probable cause) exists for believing that a crime has been committed and that a trial should be held.
A formal accusation or complaint (without an indictment) issued in certain types of actions (usually criminal actions involving lesser crimes) by a law officer, such as a magistrate.
The wrongful taking and carrying away of another person’s personal property with the intent to permanently deprive the owner of the property. Some states classify larceny as either grand or petit, depending on the property’s value.
Any program that is harmful to a computer or, by extension, a computer user.
A lesser crime than a felony, punishable by a fine or imprisonment for up to one year in other than a state or federal penitentiary.
money laundering
Falsely reporting income that has been obtained through criminal activity as income obtained through a legitimate business enterprise—in effect, “laundering” the “dirty money.”
In criminal law, a defense against liability; under Section 3.02 of the Model Penal Code, this defense is justifiable if “the harm or evil sought to be avoided” by a given action “is greater than that sought to be prevented by the law defining the offense charged.”
petty offense
In criminal law, the least serious kind of criminal offense, such as a traffic or building-code violation.
An online fraud action that allows criminals to pretend to be legitimate companies either by using e-mails or malicious Web sites that trick individuals and companies into providing useful information, such as bank account numbers, Social Security numbers, or credit card numbers.
plea bargaining
The process by which a criminal defendant and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval; usually involves the defendant’s pleading guilty to a lesser offense in return for a lighter sentence.
The act of forcefully and unlawfully taking personal property of any value from another; force or intimidation is usually necessary for an act of theft to be considered a robbery.
The legally recognized privilege to protect one’s self or property against injury by another. The privilege of self-defense protects only acts that are reasonably necessary to protect one’s self or property.
The act of accusing oneself of a crime for which a person can then be prosecuted. The Fifth Amendment to the U.S. Constitution guarantees individuals may not “be compelled in any criminal case to be a witness against himself.”
Any program transmitted between computers via the Internet generally without the knowledge or consent of the recipient. Viruses attempt to do deliberate damage to systems and data.
white-collar crime
Nonviolent crime committed by individuals or corporations to obtain a personal or business advantage.
quantum merit
Literally, “as much as he deserves”—an expression describing the extent of liability on a contract implied in law (quasi contract). An equitable doctrine based on the concept that one who benefits from another’s labor and materials should not be unjustly enriched thereby but should be required to pay a reasonable amount for the benefits received, even absent a contract.
bilateral contract
A type of contract that arises when a promise is given in exchange for a return promise.
An agreement that can be enforced in court; formed by two or more parties, each of whom agrees to perform or to refrain from performing some act now or in the future.
executed contract
A contract that has been completely performed by both parties.
executory contract
A contract that has not as yet been fully performed.
express contract
A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.
formal contract
A contract that by law requires a specific form, such as being executed under seal, to be valid.
implied contract
A contract formed in whole or in part from the conduct of the parties (as opposed to an express contract). Also known as implied contract.
informal contact
A contract that does not require a specified form or formality in order to be valid.
objective theory of contracts
A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party’s own secret, subjective intentions.
A person to whom an offer is made.
A person who makes an offer.
A person’s assurance that he or she will or will not do something.
A person to whom a promise is made.
A person who makes a promise.
quasi contract
A fictional contract imposed on parties by a court in the interests of fairness and justice; usually, they are imposed to avoid the unjust enrichment of one party at the expense of another.
unenforceable contract
A valid contract rendered unenforceable by some statute or law.
unilateral contract
A contract that results when an offer can only be accepted by the offeree’s performance.
valid contract
A contract that results when elements necessary for contract formation (agreement, consideration, legal purpose, and contractual capacity) are present.
void contract
A contract having no legal force or binding effect.
voidable contract
A contract that may be legally avoided (canceled, or annulled) at the option of one of the parties

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