Business Law Midterm Set

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.

Sovereignty

Ability of a state to govern its territory free from control of its internal affairs by other states.

Police Powers

state power to effect laws promoting health, safety, and morals

Privileges and Immunities Clause

A clause in Article IV, Section 2, of the Constitution according citizens of each state most of the privileges of citizens of other states.

Full Faith and Credit Clause

Section of Article IV of the Constitution that ensures judicial decrees and contracts made in one state will be binding and enforceable in any other state.

checks and blances

The separation of powers among the 3 branches would prevent each branch coming to powerful

Commerce Clause

The section of the Constitution in which Congress is given the power to regulate trade among the states and with foreign countries.

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits.

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Bill of Rights

The first ten amendments to the Constitution

symbolic speech

nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the first amendment.

compelling government interest

A test of constitutionality that requires the government to have compelling reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait.

filtering software

A computer program that is designed to block access to certain Web sites, based on their content. The software blocks the retrieval of a site whose URL or key words are on a list within the program.

Meta Tags

Words inserted into a Web site's key-words field to increase the site's appearance in search engine results.

Establishment Clause

provision of Amendment 1 that prohibits Congress from establishing any state-sponsored religion or enacting any law that promotes or favors one religion over another.

Free Exercise Clause

prohibits the U.S. government from interfering with a citizen's right to practice his or her religion

Equal Protection Clause

provision in the fourteenth amendment that requires state governments to treat similarly situated individuals in a similar manner. Cant discriminate against race, sex, etc.

Liability

The state of being legally responsible (liable) for something, such as a debt or obligation.

Primary Source of Law

A source that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision.

Secondary Source of Law

A publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review.

Statutory Law

The body of law enacted by legislative bodies

Citation

A reference to a publication in which a legal authority—such as a statute or a court decision—or other source can be found.

Ordinance

A regulation enacted by a city or county legislative body that becomes part of that state's statutory law.

Uniform Laws

A model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute.

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.

Administrative Agency

a federal, state, or local government agency established to perform a specific function

Enabling Legislation

A statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, purpose, and powers of the agency being created.

Adjudicate

Trial-like proceeding in which an administrative law judge hears and solves disputes involving an administrative agency's regulations.

Administrative Process

The procedure used by administrative agencies in fulfilling their three basic functions: rule making, enforcement, and adjudication.

Rule making

The process by which an administrative agency formally adopts a new regulation or amends an old one.

Legislative rules

An administrative agency rule that carries the same weight as a congressionally enacted statute.

Interpretive Rules

A nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces.

Case Law

rules of law announced in court decisions. Interprets statutes, regulation, and constitutional provisions, and governs all areas not covered by statutory or administrative law

Stare decisis

Let the decision stand; decisions are based on precedents from previous cases

Precedent

court decision that stands as an example to be followed in future, similar cases

Binding Authority

any source of law that a court must follow when deciding a case

Persuasive Authority

Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.

Plaintiff

a person who brings a case against another in a court of law.

Defendant

an individual or group being sued or charged with a crime

case in point

previous case with facts and issue similar to the one before the court

jurisprudence

the science or philosophy of law

Natural Law

The oldest school of legal thought, based on the belief that the legal system should reflect universal ("higher") moral and ethical principles that are inherent in human nature.

Substantive Law

Law that defines, describes, regulates, and creates legal rights and obligations.

Procedural Law

Law that establishes the methods of enforcing rights established by substantive law

Civil Law

branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal manners

Criminal Law

branch of law that defines and punishes wrongful actions committed against the public

Civil Law System

system of law derived from Roman Law that is based on codified laws ( rather than on precedents)

Judicial Review

proceeds by which a court decides on the constitutionality of legislative enactments and actions of the executive branch

juridiction

the authority of a court to hear and decide a specific case

Long arm statute

A state statute that permits a state to exercise jurisdiction over nonresident defendants

Probate Court

state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate

Bankruptcy Court

federal court of limited jurisdiction that handles only bankruptcy proceedings

Federal Question

question that pertains to the U.S. constitution, an act of congress, or a treaty and provides a basis for federal jurisdiction in a case

Diversity of Citizenship

basis for federal court jurisdiction over a lawsuit between citizens of different states or citizen of another country

Concurrent Jurisdiction

jurisdiction that exists when two different courts have the power to hear a case

Exclusive Jurisdiction

jurisdiction that exists when a case can be heard only in a particular court or type of court

Venue

The geographic district in which a legal action is tried and from which the jury is selected.

Standing to sue

legal requirement that an individual must have a sufficient stake in a controversy before they can bring a lawsuit

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.

Small Claims Court

A special court in which parties can litigate small claims without an attorney.

Question of fact

in a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point

Question of Law

In a lawsuit, an issue involving the application or interpretation of a law.

writ of certiorari

An order by a higher court directing a lower court to send up a case for review

Rule of Four

A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.

Litigation

The process of resolving a dispute through the court system.

Pleadings

statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case

Complaint

pleading made by a plaintiff alleging wrongdoing on the part of the defendant, initiates a lawsuit when filed in court

Service of process

delivery of the complaint and summons to a defendant

Summons

document informing a defendant that a legal action has been commenced against them and that they must appear in court on a certain date to answer the plaintiff's complaint

Default Judgment

judgment entered by a court against a defendant who has failed to appear in court to answer

Answer

procedurally, a defendant's response to the plaintiff's complaint

Counterclaim

claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff

Reply

Procedurally, a plaintiff's response to a defendant's answer

Motion to Dismiss

pleading in which a defendant admits the the facts as alleged by the plaintiff but asserts that the plantiff's claim to state a cause of action has no basis in law.

Motion for judgment on the pleadings

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 only be granted only ig no facts are in dispute.

Motion for Summary Judgment

A motion requesting the court to enter judgment without proceeding to trial. The motion can be based on. evidence outside the pleadings. Motion granted only if no facts are in dispute.

Discovery

the method by which the opposing parties obtain information from each other to prepare for trial

Deposition

the testimony of a party to a lawsuit or a witness taken under oath before a trial

Interrogatories

series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath

E- evidence

A type of evidence that consists of all computer-generated or electronically recorded information.

Metadata

data automatically recorded by electronic devices and provide information about who created a file, and when, and who accessed, modified, or transmitted the file. Data about data

Voir Dire

a part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impractical jurors

Motion for a directed verdict

A motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not provided sufficient evidence to support a claim

Award

The monetary compensation given to a party at the end of a trial or other proceeding.

Motion for Judgment

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict was unreasonable and erroneous

Motion for a new trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Brief

A written statement by an attorney that summarizes a case and the laws and rulings that support it

Docket

a court's calendar, showing the schedule of cases it is to hear

Alternative Dispute Resolution (ADR)

The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of this.

Negotiation

A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.

Mediation

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.

Arbitration

settling of a dispute by submitting it tot a disinterested third party, who renders a decision

Arbitration Clause

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

Summary Jury Trials (SJTs)

A method of settling disputes by holding a trial in which the jury's verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow.

Online Dispute Resolution (ODR)

The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet.

Tort

A wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability.

Damages

A monetary award sought as a remedy for a breach of contract or a tortious action.

Compensatory Damages

A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

Special Damages

In a tort case, an amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damage, and lost wages and benefits (now and in the future).

General Damages

In a tort case, an amount awarded to compensate individuals for the nonmonetary aspects of the harm suffered, such as pain and suffering; not available to companies.