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Business Law Midterm #1

Law
a body of rules of action or conduct prescrbed by the controlling authority, and having binding legal force
Law
that which must be obeyed and followed by citizens subject to sanctions or legal consquences
Functions of Law
Keeping the peace, shaping moral standards, promoting social justice, maintaining the status quo, facilitating orderly change, facilitating planning, providing a basis for compromise, maximizing individual freedom
Qualities of Law
Fairness (one of the most comprehensive, fair, and democratic systems of law ever developed and enforced)
Flexibility (US law developes and changes along with the norms of society, technology, and the growth and expansion of commerce in the US and the world)
Jurisprudence
the philosophy or science of the law
Natural Law School
“school” that states that law is based on what is correct, and that the law should be based on morality and ethics
Historical School
“school” that states that law is an aggregate of social traditions and customs
Analytical School
“school” that states that law is shaped by logic
Sociological School
“school” that states that law is a means of achieving and advancing certain sociological goals
Command School
“school” that states that las is a set of rules developed, communicated, and enforced by the ruling party
Critical Legal Studies School
“school” that states that legal rules as unnecessary, with legal disputes to be solved by applying arbitrary rules based on fairness
Law and Economics School
“school” that states that promoting market efficiency as the central concern of legal decision making
English Common Law
Law developed by judges who issued their opinions when deciding cases. Principles announced in these cases became precedent for later judges deciding similar cases. All states except Louisiana base their state law off of this law.
Law Court
within English Common Law, this was the court that was a uniform system of courts emphasizing form over substance and granted only monetary damages
Courts of Chancery (equity courts)
within English Common Law, this was the court which remedies shaped to fit each situation
Merchant Courts
Solved commercial disputes based on trade practices
Civil Law System
Law system that provided a Civil Code and parliamentary statutes that expand and interpret it are the sole sources of law in most civil law countries. The state of Louisiana bases its law on this law. (french influence)
US Constitution
This is considered the Supreme law of the land. It established a structure of federal government that included the Legislative, executive, and judicial branches. It helps enumerate federal powers and reserves all other powers to the state
Treaties
The president with the advice and consent of the senate may enter into these with foreign governments. Congress passes statutes to fulfill these requirements.
Codified Law
Statues and Ordinances
Statutes
Written law enacted by the legislative branch of the federal and state governments that establishes certain courses of conduct that must be adhered to by covered parties.
Ordinances
These laws are enacted by the Municipalities and local government bodies such as school districts.
Executive Orders
Issued by the president and state governors. These are power derived from express delegation from legislative branch or implied from constitutional powers
Administrative Agencies
Agencies such as the SEC and the FTC that the legislative and executive branches of federal and state governments are empowered to establish. They adopt rules and regulations, enforce statutes, and hear and decide disputes
Judicial Decisions
a Decision about an individual lawsuit issued by a federal or state court. These decisions usually state the rationale used by the court in reaching that decision
Precedent
A rule of law established in a court decision. Lower courts must follow what was established by higher courts
Stare Decisis
“to stand by the decision”. The purpose is to bring uniformity, efficiency, predictability, and flexibility.
Priority of Law in US
The us constitution and treaties take precedence over all other laws.
Federal Statutes take precedence over federal regulations
Valid federal law takes precedence over conflicting state or local law
State constitutions rank as highest state law
State statutes take precedence over state regulations
Valid state law takes place over local laws
Limited-jurisdiction trial courts
a court that hears matters of a specialized or limited nature. They hear things such as traffics, juvenile, justice-of-peace, probate, family law, misdemeanor, and small claims court.
Small Claims Court
A court that hears civil cases involving small dollar amounts
General-jurisdcition trial courts
Testimony and evidence at trial are recorded and stored for future reference. A court that hears cases of a general nature that are not within the jurisdiction of limited-jurisdiction trial courts, They hear cases of a general nature.
Intermediate appellate court
A court that hears appeals from trial courts, reviews trial court record to determine if there have been any errors at trial that would require a reversal or modification, NO NEW TESTIMONY OR EVIDENCE IS PROVIDED.
Highest State Court (Supreme Court)
hears the appeals from the intermediate appellate state courts and certain trial courts. No new testimony or evidence is provided. Decisions made by this court are final unless a question of law is involved which can be appealed at the US Supreme court. Highest court in the state.
Special Federal Courts
Federal courts that hear matters of specialized or limited jurisdiction. Things such as tax court, federal claims, international trade, bankruptcy, armed services appeal, veterans claims.
US District Courts
There is one district court in each state and the judges receive a lifetime appointment. The federal court system’s trial courts. They hear testimony, receive evidence, impanel juries, and decide cases.
US Court of Appeals
Federal government’s intermediate appellate court. They hear appeals from the district courts located in their circuits. There are 13 circuits, and a 3 judge panel. review the record of lower courts administrative agency proceedings and determine if there has been any error of law that would need reversal or modification.
US Supreme Court
No new evidence or testimony, there are 9 justices with lifetime appointments, they hear anything that usually has to do with a decision about a certain law that may be incorrect in certain cases. They hear cases from the federal circuit courts of appeals, the federal district courts, special federal courts, and the highest state courts. They review the lower court record and make a decision as to whether or not that has been an error. decision of the court is final. This is the highest court in the US.
Unanimous decision
This decision made by the supreme court is when all of the justices voting agree to the outcome and reasoning of a case
Majority decision
This decision made by the supreme court is when a majority of the justices agree to the outcome and reasoning of a case
Plurality decision
This decision made by the supreme court is when a majority of the justices agree on the outcome of the case but not the reasoning
Tie decision
This decision made by the supreme court is when the court sits without all nine justices and there is a 4 to 4 tie. The decision of the lower court will remain the final decision.
Petition for Certiorai
A petition asking the supreme court to hear a certain case
Writ of Certiorai
An official notice that the Supreme Court will review a certain case
Jurisdiction of Federal Courts
Federal Questions (constitution, treaties, or federal statutes and regulations), Diversity of citizenship (citizens of different states and at least $75,000 of controversy), Matters involving state law, matters involving federal law.
Concurrent jurisdiction
Jurisdiction shared by more than one court
Standing to sue
means that you must have a stake in the outcome of a case. you cannot sue on behalf of another friend
Personam Jurisdiction (Personal Jurisdiction)
This exists over any plaintiff who files a lawsuit. exists over the defendant who is within the boundaries of the state. The defendant receives a notice of the lawsuit through personal service, mailing, or publication.
Long-arm statute
allows for state courts to obtain personal jurisdiction over persons or business located in another state. Summons may be served in other states.
In rem jurisdiction
Jurisdiction over the property of the lawsuit within state boundaries
Quasi in rem
jurisdiction that attaches property located in another state
venue
Court near location in which the incident occurred or where parties reside. Several courts may have jurisdiction which allows for a discussion as to which court is the proper one of these.
Forum-selection clause
a contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract.
Choice-of-law
a contract provision that designates a certain state’s law or country’s law that will be applied in any dispute concerning nonperformance of the contract
Pleadings
The paperwork that is filed with the court to initiate and respond to a lawsuit. Complaint, Answer, Cross-Complaint, and Reply are all part of the pleadings.
Complaint
filed by the plaintiff in which they list the parties, the alleged facts or laws violated, and the prayer for relief.
Summons
Directs the defendant to appear and answer
Answer
Filed by the defendant that either admits or denies the allegations from the plaintiff, and states an affirmative defense.
Default Judgment
If the defendant fails to file an answer you would enter into this.
Cross-complaint
filed by the defendant to the plaintiff for damages or some other remedy, in which the original plaintiff must respond.
reply
document filed by the original plaintiff in response to the cross-complaint from the original defendant.
intervention
the act of others to join as parties to an existing lawsuit
Consolidation
the act of a court to combine two or more separate lawsuits into one lawsuit
virtual courthouse
allows e-filing of documents and electronic conferences which saves paper, time, money, and makes it easier to track documents.
Statute of Limitations
A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant
Discovery
Legal process during which both parties discover facts of the case from the other party and witnesses prior to trial
Deposition
oral testimony given by party or witness. These are given under oath, and it is required for parties to give them. Witness can be compelled by subpoena. Evidence is preserved on video camera and may be used to impeach testimony at trial.
Interrogatories
Written questions submitted by one party to the other which must be answered and returned within a set time period. These answers are affirmed under oath.
Production of Documents
Documents that parties request the other side to produce or make available for review. This can be things such as company records, correspondence, memorandum.
Examinations
physical or mental checkups done by the doctors of choice not by the doctor that will actually be checked.
Pretrial Motion
A motion a part can make to try to dispose of all or part of a lawsuit prior to trial
Motion for judgment on the pleadings
A motion which alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would with the lawsuit when the proper law is applied to these asserted facts.
Motion for summary judgment
Motion which asserts that there are no factual disputes to e decide by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without jury.
Settlement Conference
a hearing before a trial in order to facilitate the settlement of a case. this is done in the judges chamber with one judge present to make a decision.
Appeal
the act of asking an appellate court to overturn a decision
Alternative dispute resolution (ADR)
Methods of resolving disputes other than litigation. this was developed in response to the expense and difficulty of bringing a lawsuit
Arbitration
a form of ADR in which the parties choose an impartial third part to hear and decide the dispute
Uniform Arbitration Act
Adopted by half of the states and it promotes the arbitration of disputes at the state level
Federal Arbitration Act
A federal statute that provides for the enforcement of most arbitration agreements
Mediator
a form of ADR where the parties choose a neutral third party to assist in reaching a settlement.
Mini-trial
Short session in which lawyers from both parties present their cases to representatives of each party who have the authority to settle the dispute
fact-finding
process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides
Judicial referee
court appointed referee who conducts a private trial and renders a judgment
Online Dispute Resolution
Use chat rooms, in which the parties trade offers and counter-offers.
preemption doctrine
the idea that federal law takes precedence over state or local law
Commerce Clause
a clause of the US Constitution that grants congress the power to regulate commerce with foreign nations, and among the several states, and with Indian tribes
Interstate Commerce
Commerce that moves between states or that affects commerce between states
Police Power
power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general walfare.
Bill of Rights
The first 10 amendments to the US Constitution. these help to protect the rights of the people from the government.
Freedom of Speech
The first amendment in the bill of rights. and its the right to participate in written or oral speech.
Fully Protected Speech
Speech that the government cannot prohibit or regulate.
Commercial Speech
Speech used by businesses such as advertising. It is subject to time, place, and manner restrictions.
Unprotected Speech
Speech that is not protected by the first amendment and may be forbidden by the government.
Establishment Clause
A clause to the first amendment that prohibits the government from either establishing a state religion or promoting one religion over another
Free Exercise Clause
A clause that prohibits the government from interfering with the free exercise of religion in the United States
14th amendment
an amendment that contains due process, equal protection, and privileges and immunities clauses
Equal Protection Clause
A clause that provides that a state cannot deny to any person within its jurisdiction the equal protection of the laws
Strict Scrutiny Test
A test that is applied to classifications based on race
Intermediate
A test that is applied to things other than race such as sex, age, etc.
rational basis test
a test that is applied to classifications not involving a suspect or protected class
Due process clause
clause that provides that no person shall be deprived of life liberty or property without due process of law
substantive due process
a category of due process which requires that government statutes, ordinances, regulations, or other laws be clear ton their face and not overly broad in scope
Procedural due process
A category of due process which requires that the government give a person proper notice and hearing of the legal action before that person is deprived of his or her life, liberty, or property.
Privileges and Immunities Clause
A clause that prohibits states from enacting laws that unduly discriminate in favor of their residents
Article one
Establishes the legislative branch of government. Congress which includes the senate and house of representatives
Article two
Establishes the executive branch of government. which provides for the election of the president with the electoral college. they interpret the federal law.
Article three
Establishes the judicial branch of government. this includes the supreme court and other federal courts that may be created by congress. Their roles is to interpret the federal law.
Checks and Balances
Built into the Constitution to ensure that no one branch of the federal government becomes too powerful.
Judicial Branch
has authority to examine the acts of the other two branches of government and determine whether these acts are constitutional
Executive Branch
can enter into treaties with foreign governments only with the advice and consent of the Senate.
Legislative Branch
authorized to create federal courts and determine their jurisdiction and to enact statutes that change judicially made law.

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