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Business Law Midterm

Who wrote “On the Laws and Customs of England”?
Henry DeBracton
Year when “On the Laws and Customs of England” was written
1250
Significance of “On the Laws and Customs of England”
establishes the idea precendent
Shire Reeves
collected taxes and helped keep the peace in tenth century England. Equivalent to a modern day Sheriff.
Collective Responsibility
A tithing of 10 men put together to hold each other accountable. Anglo-saxon method of keeping the peace.
The primary drafter of the constitution
James Madison – 1789
precedent
The obligation to decide current cases based on previous rulings.
Common Law
Judge made law
Statute
A law passed by a legislative body
French social commentator and political thinker who created the Separation of Powers theory
Baron Montesquieu
Federalism
The sharing of powers between levels of government
Bill of Right
first 10 amendments of the constitution; Compromise between federalist and antifederalists; Protects natural rights of liberty and property
Administrative Law
Law made by federal agencies; rules and regulations
Dicta
language added to a court’s opinion that is beyond what is needed; extra words offered as guidance
Style of a Case
States who is suing who. Identifies parties.
Citation
Reference code; label for looking the case up
Legal Issue Presented
The legal question that is posed in a case
Holding
Bottom Line answer
Rationale
reasoning court gives for the holding
Dissenting Opinion
Judges who disagree with the majority holding; states their opposing opinion
Concurring Opinion
The opinion of Judges who agree with the holding, but for different reasons.
Stare Decisis
judges are obligated to follow precedent
Ethics
The study of how people ought to act; does not always mean legal.
Two types of dispute resolution
Arbitration and Mediation
Arbitration
the introduction of a neutral third party in resolving a dispute; issues a binding decision.
Mediation
the introduction of a neutral third party in resolving a dispute; not a binding decision. Voluntary settlement.
In the Tennessee State Court system:
Five supreme court judges are elected
Federal District Court
Trial Court
Federal Law has jurisdiction in a lawsuit by…
United States is a party; the case is about a federal statute; the suit is between citizens of two different states and the the amt is over 75,000
How many circuits total in the court of appeals?
Twelve.
How many judges on the panel in the Court of Appeals?
Three.
How Many Justices in the Supreme Court?
Nine.
Writ of Certiorari
A document filed by the losing party requesting the federal court to appeal a case.
Current Chief Justice
John Roberts
First African American Justice
Thurgood Marshall
First Woman Justice
Sandra Day Oconnor
Litigation
refers to lawsuits; the process of filing claims to courts
Appellant
The party filing the appeal
Appellee
The party opposing the appeal
Pleadings
The documents that begin a lawsuit: consists of the complaint, answer and sometimes a reply
Step one in filing a civil law suit
Complaint and summons are served to defendant; answer is provided within 30 days
Step two in filing a civil law suit
Discovery phase: chance for the party to learn about its opponent.
Interrogatories
written questions that the opposing party must answer in writing under oath
Depositions
The process of one party’s lawyer to question the other party or a potential witness under oath.
Request of production of documents and things
each side may ask the other side to produce relevant documents for inspection and copying.
Physical and Mental examination
A party may ask the court to order an examination to find out if physical or mental damage is relevant
Step three in filing a civil law suit
Pretrial motions; motions for a summary judgement; asks the court to resolve a lawsuit before it goes to trial
Step four in filing a civil law suit
Trial.
Voir Dire
Attorneys ask jurors a set of questions to determine bias
In a lawsuit attorneys have a burden of proof that shows liability by
preponderance of the evidence
Common Law
judge made law; based on precedent, which leads to stare decisis
Bystander’s obligation means…
You have no duty to assist someone in peril unless you created the danger
Bill
proposed statutes, submitted to Congress or a legislature
For a bill to pass:
it must be voted on and approved by both houses and then approved by the president. then it is a law
When a bill is introduced to the house of representatives it must have a…
sponsor.
After a bill enters the house of rep or senate, it goes where…
to a committee to be studied; and then debated and voted upon; this is where new amendments can be added.
After the bill is released from committees in the two houses, it goes…
to the conference committee
Conference committee
consists of two members of the House of Representatives and two members of the senate; they try to compromise between two edited versions of a bill to make it equal.
when a bill is introduced to the Sentate is must have…
presiding officer (senator)
In the house of representatives, after a bill has left the first committee, it travels to…
the rules committee where it is put on a calendar.
What is the job of the Rules Committee
They set time limits for debate, decide how fast the law should be deliberated and when the bill goes to the floor for debate.
The last step of a bill in the House of representatives is…
when the bill is debated to the floor of the house.
In the senate, after the bill leave committee it travels to…
the floor/leadership, where it is debated upon with no time limit.
what is a filibuster?
an act of a senate member to delay the close of debate or force a decision to be made.
after conference committee, the bill goes…
to the president.
How much of a majority is it to override a presidents veto?
2/3 vote
What is the percentage vote to pass a bill?
Majority
Veto
forbidding a law to be passed
Pocket Veto
when a law remains untouched on the presidents desk for over 10 days after congress’s adjournment
Separation of powers
system of checks and balances within the federal government
Supremacy clause
Aricle IV section 2 of the constitution that states that the constitution and the united States are the laws of the land. Federal government trumps state law
Incorporation clause
No state can deny citizens due process. (14th amendment) this incorporates states to be ruled under the constitution
first amendment
freedom of speech.
Freedom of speech includes…
action, print and other expression. Broader than the spoken word
What is not protected under the first amendment?
Defamation, obscenity, speech that creates danger
who regulates commercial speech?
FCC (Federal Communications Commission)
fifth amendment
Due process or the right to a hearing
Procedural due process
procedures for academic dismissal or dismissal from a government job
Takings clause
aka imminent domain; government cant take a persons land unless they prove it will be used for a public purpose and provide proper compensation.
What section of the Constitution grants congress it’s powers?
Article I, Section 8
regulation of interstate commerce
a power granted to congress stating that congress may regulate trade between countries, other states and indian tribes
Substantial effect rule
if the proceedings of a business occur intrastate but will eventually effect proceedings interstate, this rule states that congress may interfere
Equal Protection Clause
section of the fourteenth amendment where courts must provide equal protection to all cases based on scrutiny
Minimal scrutiny
laws involving economic and social regulation; laws that regard economic or social status are presumed valid and corporations and people can be classified
Intermediate scrutiny
gender related; such laws must be substantially related to important government objectives. (gov’t cant discriminate based on gender through the law making process)
Strict scrutiny
race, ethincity and fundamental rights; Any government action that intentionally discriminates against racial or ethnic minorities or interferes with a fundamental right is presumed invalid.
John Locke
Life, Liberty, Property
tort
a violation of a duty imposed by a civil law.
intentional tort
harm caused by a deliberate action
Negligence and strict liability
injuries caused by neglect and oversight rather than deliberate conduct.
Defamation
talking trash
lible
type of defamation tort; written defamation
slander
type of defamation tort; spoken defamation
Qualifications for defamation
(1)statement (2)falseness (3)communicated (4)injury
To prove injury the defamation must show:
lack of opinion, malice as to public figures, negligence to private individuals
Malice
the defendant (defamer) knew the statement was false or acted with reckless disregard to the truth
false imprisonment
Type of intentional tort; the intentional restraint of another without reasonable cause
battery
Type of intentional tort; the intentional touching of an individual in a way that is unwarranted or offensive
assault
Type of intentional tort; an act that makes a person fear imminent battery
trespass
type of intentnional tort; intentionally entering land that belongs to someone else or remaining on land after being asked to leave
conversion
type of tort; taking someone elses property without consent.
Fraud
type of intentional tort (and crime); injuring someone by deliberate deception
Tortious interference with a contract
business tort; defendant improperly breached contract and causes injury to plaintiff
Commercial Exploitation
business tort; using someones likeness or voice without their permission.
intrusion
business tort; intrusion in to someones private life; being a voyeur
Negligence
unintentional tort, breach of a duty of care
element 1 of a negligence lawsuit
there is an established duty of due care
element 2 of a negligence lawsuit
there was a breach of due care
element 3 of a negligence lawsuit
factual case
element 4 of a negligence lawsuit
forseeable harm
element 5 of a negligence lawsuit
injury
attractive nuisance
items such as trampolines and swimming pools; defendant is liable if there is no protection
invitee
someone on the property by right of a public place. highest duty of due care is owed to avoid negligence
licensee
a person who is on your property with your permission; you owe them a higher duty of due care to warn of known dangers
breach of duty
a defendant breaches his duty of due care by failing to behave the way a reasonable person would under similar circumstances
negligent hiring
a company becomes liable if they do not perform a background check
negligent retention
if a company does not address an insubordinate employee, they become liable
Negligence per se
the legal doctrine whereby an act is considered negligent because it violates a statute (or regulation)
forseeable harm
for the defendant to be liable, the type of harm must have been reasonably forseeable.
Res ipsa loquitor
the facts imply that the defendants negligence caused the act; “the thing speaks for itself”
Contributory Negligence
if the plaintiff is even slightly negligent he/she recovers nothing
Comparative Fault
a plaintiff may generally recover even if he/she is partially negligible
Assumption of the risk
a person who volluntarily enters a situation that has an obvious danger cannot complain is he/she is injured
crime burden of proof
guilty beyond a reasonable doubt
actus reus
type of intent to be proved; means the guilty act
mens rea
type of intent to be proved; means a guilty state of mind
felony
punishable by a prison sentence of one year or more
misdemeanor
a less serious crime often punishable by less than one year in prison
strict liability
a defendant engaging in an ultrahazardous activity is virtually always liable for any harm that results
insanity
type of defense; the defendant is incapable of forming mens rea
coercion
type of defense; the practice of forcing another party to behave in an involuntary manner (whether through action or inaction) by use of threats or rewards
entrapment
type of defense; when the government induces the defendant to break the law.
larceny
type of business crime; the trespassing taking of personal property with intent to steal it. defendant never had the right to have said property in posession
embezzlement
type of business crime; the fraudulent conversion of property already in the defendants posession.
conversion(2)
type of business crime; taking or using someones property
Fraud
(1)misrepresentation (2)concealment with the intent to take advantage of someone; deception of a person for the purpose of obtaining money or property
Wire Fraud
fraud using electronic communications of any kind;
Mail Fraud
any scheme that attempts to unlawfully obtain money or services illegally through the US postal service
Insurance Fraud
faking car accidents and injury in order to gain a settlement
Medicare fraud
using false statements or bribes to obtain medicare payments from the federal or state government
Arson
malicious use of fire or explosives to damage or destroy real estate or property
RICO
using two or more racketeering acts to accomplish any of the following goals: (1) investing or acquiring legitimate businesses with criminal money (2)maintaining or acquiring businesses through criminal activity
Patriot Act
allows the FBI to surveillance citizens with out a search warrant from a judge
fourth amendment
no unreasonable searches or seizures
fifth amendment
no self incrimination / due process (miranda warnings)
sixth amendment
right to an attorney when facing a prison sentence
eighth amendment
cruel and unusual punishment
first requirement of a contract
Agreement (offer and acceptance)
second requirement of a contract
consideration; the bargaining that leads to a deal
third requirement of a contract
legality; the subject matter must be legal
fourth requirement of a contract
Capacity; the parties must be adults and mentally competent
express contract
a contract put in writing laying out all of the terms
implied contract
a court will imply by conduct that there was an agreement between two parties
uniform commercial code
a federal statute that applies to the sale of goods (NOT real estate or services)
promissory estoppel
when there is no contract, but the defendant makes a promise that will induce reliance. it would be unjust not to enforce the promise
quasi contract
there is no intention to a contract but the plaintiff gives some benefit to the defendant who knows the plaintiff expects compensation. it would be unjust not to award the damages.
agreement
requires a meeting of the minds
letters of intent
a letter that summarizes the negotiating progress
revocation
an offered can be terminated anytime before the offer has been accepted.
you cannot revoke an offer…
during the option period of a contract
rejection
termination by simply turning down the offer
counter offer
a subtype of rejection
expiration
termination when an offer specifies a time limit for acceptance and the period is binding.
operation of law
termination when the offeror dies or the physical contract is destroyed
Mail box rule
binding; an offeror cannot withdraw
mirror image rule
common law rule; acceptance must be made on the same terms as the offer

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