Business Law test

Constitutions

establish governmental structure, specific rights and duties

Statutes

enacted by legislative body to regulate conduct

Common law/case law

made and applied by judges at the state level as judges decide cases according to the doctrine of precedent or stare decisis

Equity

is applied by state level judiciary to achieve justice when common law rules would produce unfair results

Injunction

court forbids a party to do some act or orders a party to perform an act

Specific performance

party is ordered to perform according to contract terms

Reformation

court rewrites contract to reflect intention of parties

rescission

cancellation of the contract

Administrative Regulations & Decisions

made by state and federal agencies that were created by statute and hold delegated power

Treaty

made with other nations, by the US president on behalf of the nation approved by the US Senate

Ordinance

made by subunits of state governments (for example, counties, cities) for local issues, such as zoning

Executive Order

issued by the US President or a state governer under limited powers

Federal supremacy

a rule of priority for conflicts between laws stating that the US Constitution is the supreme law of the land

Criminal law

establishes duties to society

Civil law

establishes duties and obligations between private parties

Substantive law

establishes rights and duties of people in society

- a statute making murder a crime

Procedural law

establishes how to enforce those rights and duties

Public law

refers to the relationship between governments and private parties

Private law

refers to the regulation of conduct between private parties

Jurisprudence

refers to the philosophy of law as well as the collection of laws

American Legal Realism

defines law as behavior of the judiciary as it rules on matters within the legal system

sociological jurisprudence

unites theories that examine law within social context

Legal positivism

law is the command of a recognized political authority

Natural law

universal moral rules bind all people whether written or unwritten

Functions of law

- peacekeeping

- checking gov. power

- facilitating planning

- promoting economic growth, social justice, and environment

‘Plain Meaning’ Rule

court applies statute according to usual and customary meaning of words

Case law reasoning

court may stand on precedent or distinguish prior case from current case

Limitations on the Power of Courts

courts limited to deciding existing cases or controversies

declaratory judgment

allows parties to determine rights and duties prior to harm occurring

General jurisdiction courts

hear most types of cases

Limited jurisdiction courts

hear specialized types of cases; appeals from decisions often require new trial in general jurisdiction court ex: traffic, tax or family court

Trial Courts

courts of general jurisdiction that hear most types of cases

appellate courts

generally decide only legal questions, not questions of fact

plaintiff

party suing; files lawsuit against defendant

defendant

party sued

Subject-matter jurisdiction

refers to a courts authority to hear a particular type of dispute

In personam jurisdiction

requires that the defendant be a resident of, located within, or have committed acts within the state’s borders

In rem jurisdiction

applies when property that is the subject of a dispute is located within the physical boundaries of a courts authority

- a dispute over a sale

Venue

assuming jurisdiction is established, venue is the ‘fair and convenient’ place for the trial to be held (usually the county)

Federal courts must

have jurisdiction based on diversity or federal question

Diversity jurisdiction

exists when the dispute is between citizens of different states and amount is greater than 75,000

federal question

jurisdiction exists when the dispute arises under the Constitution, laws, or treaties of the United States

Civil Procedure

judicial rules establishing how a lawsuit proceeds from beginning to end

Service of the summons

notifies the defendant that they are being sued and deadline to ‘enter an appearance.’ Usually accompanied by a copy of the complaint

The Pleadings

plaintiff’s complaint or petition plus defendant’s answer or response

Motions

some motions ask the judge to decide the result before trial

Discovery

obtaining evidence from other party through interrogations, requests for admissions, requests for documents, and depositions

Summary Judgment

to prevail, party must show (1) there is no genuine issue of material fact and (2) they are entitles to judgment as a matter of law

Pretrial conference

where judge will hear and rule on many evidentiary issues, discovery disputes, potential settlement and other concerns

appeal

after a judgment has been entered, losing party may appeal decision to a higher court

tort

a civil wrong that is not a breach of contract

tortfeasor

the person who commits the tort

reckless conduct

tortfeasor’s conscious indifference to a known and substantial risk of harm created by their behavior

intentional tort

tortfeasor’s desire to cause certain consequences - or substantial certainty certain consequences will result

negligent conduct

failure to use resonable care, with harm to another party occurring as a result

strict liability

liability without (or regardless of) fault

compensatory damages

damages reimburse an injured person for their actual losses (either emotional or physical damages)

punitive damages

punish the wrongdoer for extreme misconduct

Matters of law

are issues not of fact, but of law, matters of law decided by a judge

Arbitration

dispute settled by one or more abritrators selected by the aprties to a dispute, relatively formal

Mediation

parties choose neutral party to aid resolution of dispute

Reference to third party

dispute resolution by rent-a-judge, minitrial, summary jury trial, or association tribunal

Overview of the constitution

establishesa tripartite government to ensure a separation of powers

System of checks and balances

- no single branch may control government

- states reserve certain powers

- federal powers are limited

Testing constitutionality

courts apply a means end test to review allegedly unconstitutional statute

rational basis test (minimal scrutiny)

if law has rational basis, it will stand

Intermediate scrutiny

law must substantially relate to important governmental objectives to stand

Strict scrutiny

law presumed invalid if, on its face, it is based on race, ethnicity, and religion

constitution limites federal and state reg. by 3 checks

freedom of speech

due process

equal protection

fifth amendment

prohibits federal government from depriving any person of life liferty or property without the due process of law

Equal protection clause

prohibits government from treating one person differently than another without reasonable grounds for classifying differently

The takings clause

depriving a person of property

Crimes are

public wrongs, classified from:

felony

misdemeanor

infraction

Bill of rights

first ten amendments to the US Constitution

First amendment

allows government to regulate indecent speech and does not protect obscene expression

Fourth amendment

protects persons against unresonable and arbitrary searches and seizures

Exclusionary rule

prevents the use of evidence seized in an illegal search in a subsequent trial of the defendant

White collar crimes

under modern rule, a company may be liable for criminal offenses committed by employees who acted within the scope of their employment and for the benefit of the corporation

Tort

is a civil wrong that is not a breach of a contract

- intent

- recklesness

- negligence

- strict liability

Interference with personal rights

- battery

- assault

- intential infliction of emotional distress

- false imprisonment

- defamation

- invasion of privacy

- misuse of legal proceedings

Battery

intentional and harmful or offensive touching of another without the persons consent

Assault

intentional attempt or offer to cause a harmful or offensive contact with another person without their consent, if that attempt or offer causes a reasonable apprehension of imminent battery in the other person’s mind

emotional distress

wrongdoer’s conduct must be outrageous and intentional

false imprisonment

intentional confinement of another for an appreciable time without their consent

Defamation

- Unprivileged

- publication of

- false and defamatory

- statements concerning another person

libel

written defamation

Invasion of privacy

- introsion on solitude of seclusion

- public disclosure of private facts

- false light publicity

- comercial appropriation of name or likeness

misuse of legal proceedings

malicious prosecution, wrongful use of civil proceedings, abuse of process

Malicisous prosecution

wrongful institution of criminal proceedings

wrongful use of civil proceedings

wrongfully instituted civil suits

Abuse of process

imposes liability on those who initiate legal proceedings

Deceit

formal name for the tort claim available to victims of knowing or intentional misrepresentations

Interference with property rights

trespass to land

private nuisance

conversion

private nuisance

some interference with plaintiff’s use and enjoyment of the land

conversion

defendant’s intentional exercise of dominion or control over plaintiff’s personal property without plaintiff’s consent through acquisition, removal, transfer to another, withholding possession, destruction or alteration, use

Claim of negligence

1. defendant owed a duty of care to the plantiff

2. defendant committed a breach of duty

3. breach was actual and proximate cause of the injury

Duty of due care

the defendant had a legal responsibility to the plaintiff. FORESEEABILITY

Invitee

business visitor or member of the public; owner or tenant must exercise reasonable care for safety of their invitees

Licensee

those on the property for his/her own purpose; owner or tenant obligated only to warn licensee of hidden, dangerous conditions

Trespasser

those on property illegally; owner or tenant owes no duty, but may not willfully injure trespassers