Business Law 218 JMU Collier Test 1

Law

Enforceable rules governing relationships among individuals/between individuals in society

-Establish rights/duties/privileges consistent w/ societal values

Breach

To break or fail to perform

Sources of American Law

1. U.S. Constitution + State Constitutions

2. Statutes (laws) passed by Congress and State Legislatures

3. Regulations from Administrative Agencies

4. Case Law (Court Decisions)

Secondary Sources of American Law

Books/articles that summarize/clarify the primary sources of law (i.e. legal encyclopedias)

Constitutional Law

What Federal Government and states go by, separate written constitutions

Statutory Law

Laws enacted by legislative bodies at any level of government

Citation

Reference to a publication in which a legal authority can be found

- Includes ORDINANCES, Statutes (law,rules) passed by municipalities or county governing units

Uniform Laws

"Model Statutes", make state laws uniform for persons conducting trade among state lines

- Each state has OPTION of accepting/rejecting

- Can also adopt part of laws and rewrite them

UCC

Uniform Commercial Code, Set of rules governing commercial transactions

Administrative Law

Rules of Administrative Agencies

Case Law

Doctrines/Principles announced in cases, governs all other areas not covered by the statutory/administrative law

Common Law

Body of general rules applied throughout entire English Realm

- Much of american law is based upon the English Legal System

Stare Decisis

Practice of deciding new cases with reference to precedents

- Forces lower courts to abide by precedents

- Two aspects: 1) Higher court decisions are binding 2) Need strong reason to overturn precedents

Binding Authority

Any source of law a court must follow in a case (i.e. constitutions/statutes)

Persuasive Authorities

Precedents from other jurisdictions that aren't binding in court

- Used in cases w/o precedent

Unpublished Opinions

Decision reviewed by appellate (review) courts not intended for publication

- Attorney's often not allowed to cite these

- Amount has risen dramatically in recent years

Supreme Court in 2006

Established that unpublished opinions be cited in all Federal Courts

Remedy

Means given to a party to enforce a right/compensate for violation of a right

- i.e. someone getting injured as a result of another party

Equity

Branch of Law on notions of justice/fair dealing

- Today, courts of Law and Equity have merged (Exhibit 1-3)

Plaintiff

Those bringing lawsuits versus a defendent

Jurisprudence

Study of Law

Natural Law Theory

Belief that a higher/natural law exists and applies to all humans, opposes Legal Positivism

Legal Positism

Belief that there can be no higher law (i.e. no natural rights), opposes Natural Law Theory

Historical School of Thought

Looks into past to discover what contemporary laws should be like

Legal Realism

Belief that law is just one of many institutions, shaped by social forces/needs

- Law can never be applied w/ total uniformity

Substantive Law

All laws that define/describe/regulate/create legal rights and obligations

- i.e. State Law providing Worker's Comp.

Procedural Law

Laws establishing methods of enforcing the rights established by substantive law

- i.e. Method of how employee reports an injury

Other classification systems (besides substantive and procedural law) are divided into:

1) Federal/State Law

2) Private/Public Law

Civil Law

Rights/duties with persons and their government (i.e. failing to perform a contract)

Civil Law System (different from Civil Law)

Legal system based on a written code of laws

Criminal Law

Prescribed by local/state/or federal government statutes

International Law

Body of written/unwritten laws observed by independent nations governing acts of individuals/governments

- Government Authorities can enforce National Law, not international law

Role of the Judiciary

To interpret/apply the law

Judicial Review

Ability of a court to decide on constitutionality of legislative actions of the executive branch

Jurisdiction

Authority of a court to hear/decide on a specific case

in personam Jurisdiction

Personal Jurisdiction over any person/business residing in a certain area

in rem Jurisdiction

Jurisdiction over property within certain boundaries

Long-Arm Statute

Permits a state to exercise jurisdiction over non-resident defendents

- For it to work, the court must be convinced that the defendent had minimum contacts with the state

- Applies also if goods are placed into the "stream of commerce"

Jurisdiction over Subject Matter

Limits on types of cases a court can hear

- General Jurisdiction vs. Limited Jurisdiction

General Jurisdiction

i.e. State trial court or Federal district court

Limited Jurisdiction

i.e. Probate Court (deals w/ deceased person's estate) or Bankruptcy Courts, which are federal

Original vs. Appellate Jurisdiction

Depends on when the case is heard

- Original: First time heard

- Appellate: appeals from other courts

- District courts have original jurisdiction

Federal Court Jurisdiction

Limited Jurisdiction, subject-matter jurisdiction in 2 ways:

1) Federal Question: Question pertaining to U.S. Constitution act of Congress, or treaty

2) Diversity of Citizenship: Basis for Federal court jurisdiction over lawsuit b/w citizens of different states/countries

Two Requirements of Diversity of Citizenship

1) Plaintiff/Defendant must be from different states

2) Dollar amount in controversy must exceed $75,000

Concurrent Jurisdiction

Both Federal/State courts have power to hear a case

Exclusive Jurisdiction

Cases can only be tried in either Federal courts or state courts

Sliding Scale

Decides if courts can use personal jurisdiction over an out-of-state defendant based on the defendant's web activity

Venue

Geographic district where a legal action is tried and from which a jury is selected

Standing to Sue

Legal requirement needed to have a sufficient "stake" in a controversy before it is brought to a lawsuit

Justiciable Controversy

A non-hypothetical/non-academic but real/substantial controversy that is satisfied before brought to case

State Court Systems

Include:

1) Trial Courts of Limited Jurisdiction

2) Trial courts of general jurisdiction

3) Appellate Courts

4) State Supreme Court

Trial Courts of General/Limited Jurisdiction

i.e. County/district/superior/circuit courts are all general

- Small claims court is limited

Appellate Courts

Panel of 3 or more judges, Focus on questions of law

- Defer to trial courts findings of fact

Question of Fact

Issue that only involves disputed facts, NOT what law is at a given point

Question of Law

Issue involving application/interpretation of a law (ONLY a judge can rule)

State Supreme Court

Sometimes called "Court of Appeals", provide final decision on all questions of state law

Federal Court System

Includes:

1) U.S. district courts

2) U.S. court of appeals

3) Supreme Court

All judges appointed to Federal Court System are appointed by.......

The president

U.S. District Courts

Have original jurisdiction in federal matters

U.S. Court of Appeals

13th Circuit (Federal circuit) has national appellate jurisdiction (i.e. cases like patent laws or where the U.S. is the defendant)

- Decisions are final in most cases

Supreme Court

Consists of 9 justices, usually acts w/ appellate jurisdiction (sometimes original)

- Need to issue a Writ of Certiorari (writ from a higher court asking for a lower court's case)

- Rule of 4: 4/9 Justices have to approve of writ to issue it

- Can grant petitions when cases raise important constitutional questions

Litigation

Process of working a lawsuit through the court system

Pleadings

Pre-trial procedure, Statements by plaintiff/defendant that detail the facts/charges/and defenses of a case

Discovery

Gathering of evidence

Complaint

Pre-trial procedure, Plaintiff's statement alleging wrongdoing of the defendant. When filed, it initiates a lawsuit***

Summons

Pre-trial procedure, Document informing defendant of a legal action against him, must appear in court

Service of Process

Pre-trial procedure, Delivery of complaint/summons to the defendant

Default Judgement

Pre-trial procedure, Court judgement against defendant who didn't appear in court to answer/defend claim

Answer

Pre-trial procedure, Defendant's response to a plaintiff's complaint

Counterclaim

Pre-trial procedure, Defendant's claim in civil law against plaintiff (Reply: Plaintiff's answer to counterclaim)

Affirmative Defense

Pre-trial procedure, Raising new facts on a case that may cause means for dismissal

Motion to Dismiss

Pre-trial procedure, Defendant admits facts by plaintiff, but asserts plaintiff's claim as having no legal basis

Motion for Judgement on Pleadings

Pre-trial procedure, A motion by either party at the end of pleadings requesting the court to decide the issue solely on pleadings w/o proceeding to trial. Granted if there are no disputed facts

Motion for Summary Judgement

Pre-trial procedure, Request to enter a judgement w/o proceeding to trial

- Only if it's a question of law***

Deposition

Discovery stage, Testimony of a party to a lawsuit/or when a witness takes a trial under oath

Interrogatories

Discovery stage, Written questions that have prepared answers by a party, usually w/ an attorney and signed under oath

E-Evidence

Discovery stage, Evidence consisting of all computer-generated/electronically-recorded info.

Jury Selection

A trial can be held with or without a jury

Voir Dire

Part of jury selection process where potential jurors are questioned

Motion for a Directed Verdict

Trial stage, Motion for judge to take decision out of jury's hand, on grounds that plaintiff's complaint is faulty

Award

Trial stage, Monetary compensation given to a party at the end of trial

Motion for Judgement n.o.v.

Post-Trial stage, Motion requesting court to grant judgement in favor of party making the motion that the verdict was unreasonable/erroneous

Motion for a New Trial

Post-Trial stage, Motion saying that the trial was flawed that a new trial is necessary

Brief

Appeal stage, Written summary/statement prepared by one side in a lawsuit to explain it's case to a judge

Appellate Court's Decision Options

In appeal stage, have options to:

1) Can affirm trial courts decision

2) Reverse Trial court's judgement

3) Send back (remand) case to trial court

4) Affirm/Reverse decision in part

5) Modify a lower court's opinion

Alternative Dispute Resolution (ADR)

Resolution of disputes by:

- Negotiation

- Mediation

- Arbitration

More than 90% of cases are decided w/ ADR

Negotiation (ADR)

Parties attempt to settle disputes informally, with or without attorney's present

Mediation (ADR)

Use of neutral 3rd party to solve disputes, but doesn't make final decision***

Arbitration (ADR)

Settling a dispute by submitting it to a disinterested 3rd party (other than a court) who makes the final decision (binding or non-binding)

- Arbitrator's final decision is called an award

Arbitration Clause

In contracts, a clause that parties will submit a dispute to arbitration rather than litigation

What amendment covers Subject Matter Jurisdiction?

10th

What jurisdiction are federal crimes, bankruptcy, and intellectual property under?

Federal Jurisdiction

Why is personal jurisdiction a problem at the state level?

Due to the long-arm statute

What manages jurisdiction in cyberspace?

Sliding-Scale standards rule

With passive advertising, jurisdiction is......

Not proper

Which court does most of the heavy lifting in terms of finding facts and law?

Trial Courts

What questions to Appellate courts face?

Questions of Law

Court proceedings order

Complaint

Answer

Motion to Dismiss

Motion for Judgement on Pleadings

Motion for Summary Judgement

Discovery

Trial

Motion for Judgement n.o.v./as matter of law

Motion for a New Trial

Notice of Appeal

If someone appeals from Federal Court, then......

They go to Federal Circuit court

Judicial Economy of Efficiency

Cases end upon loss; no double jeopardy clause