ACTG 355 Test 1

Rational Relationship Test

standard of review used to determine whether economic regulation satisfies the equal protection guarantee

Violation of Statute (Reasonable Person Standard)

if the statute applies, the violation is negligence per se in most states

Sale (Development of the Law of Contracts)

the transfer of title from seller to buyer

Quasi Contract Remedy

the plaintiff recovers the reasonable value of the benefit she conferred upon the defendant

Definition of Law

"a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong" (Blackstone).

Legal Sanctions

are means by which the law enforces the decisions of the courts.

Law and Justice

are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.

Substantive law

law creating rights and duties.

Procedural Law

rules for enforcing substantive law.

Public Law

law dealing with the relationship between government and individuals.

Private Law

law governing the relationships among individuals and legal entities.

Civil Law

law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity

Administrative Law

rules, regulations, orders, and decisions made by administrative agencies.

venue (over the parties)

geographic area in which a lawsuit should be brought

Motions challenging the verdict (trial)

include motions for a new trial and a motion for judgment notwithstanding the verdict

appeal

determines whether the trial court committed prejudicial error

Federal Commerce Power (Powers of Government)

exclusive power of the Federal government to regulate commerce with other nations and among the States

Nature of Crimes (Definition)

A crime is any act or omission forbidden by public law

Defamation (Harm to the Right of Dignity)

false communication that injures a person's reputation

Burden of Proof (Harm)

plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest

Negligence

A person is under a duty to all others at all times to exercise reasonable care for the safety of the others' person and property.

Functions of Law

to maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.

Law and Morals

are different but overlapping; law provides sanctions, while morals do not.

Criminal Law

law establishing duties which, if violated, constitute a wrong against the entire community.

Constitutional Law

fundamental law of a government establishing its powers and limitations.

Common Law (Judicial Law)

body of law developed by the courts and Equity based upon principles distinct from common law and providing remedies not available at law.

Equity Law (Judicial Law)

body of law based upon principles distinct from common law and providing remedies not available at law.

Legislative Law

statutes adopted by legislative bodies

Treaties

agreements between or among independent nations

Executive Orders

issued by the President or by the governor of a state

District Courts

trial courts of general jurisdiction that can hear and decide most legal controversies in the Federal system

Courts of Appeals

hear appeals from the district courts and review orders of certain administrative agencies

Courts of appeals 1/3

Examine the record of a case on appeal and to determine whether the trial court committed prejudicial error.

Courts of Appeals 2/3

If so, the appellate court will reverse or modify the judgment and if necessary remand it (send it back) to the lower court for further proceeding.

Courts of Appeals 3/3

If no prejudicial error exists, the appellate court will affirm the decision of the lower court.

The Supreme Court

the nation's highest court, whose principal function is to review decisions of the Federal Courts of Appeals and the highest State courts.

Special Courts

have jurisdiction over cases in a particular area of Federal Law and include the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the U.S. Court of Appeals for the Federal Circuit.

Inferior Trial Courts (State Courts)

hear minor criminal cases, such as traffic offenses, and civil cases involving small amounts of money; conduct preliminary hearings in more serious criminal cases

Trial Courts (State Courts)

have general jurisdiction over civil and criminal cases.

Special Courts (State Courts)

trial courts, such as probate courts and family courts, having jurisdiction over a particular area of State law.

Appellate Courts (State Courts)

include one or two levels; the highest court's decisions are final except in those cases reviewed by the U.S. Supreme Court.

Jurisdiction

Jurisdiction means the power or authority of a court to hear and decide a given case.

Subject Matter Jurisdiction

authority of a court to decide a particular kind of case.

Exclusive Federal Jurisdiction

Federal courts have sole jurisdiction over Federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases

Concurrent Federal Jurisdiction

Both Federal and State courts have authority to hear a case; arises with (1) Federal question cases (arising under the Constitution, statutes, or treaties of the United States) that do not involve exclusive Federal jurisdiction, and (2) diversity of citizenship cases involving more than $75,000.

State Jurisdiction

state courts have exclusive jurisdiction over all matters to which the federal judicial power does not reach

Jurisdiction over the parties

the power of a court to bind the parties to a suit

In Personam Jurisdiction (over the parties)

jurisdiction based upon claims against a person, in contract to jurisdiction over the person's property.

in rem jurisdiction (over the parties)

jurisdiction based on claims against property

Attachment Jurisdiction (over the parties)

jurisdiction over a defendant's property to obtain payment of a claim not related to the property

Civil Procedure

civil disputes that enter the judicial system must follow the rules of civil procedure. These rules are designed to resolve the dispute justly, promptly, and inexpensively.

The pleadings

a series of statements that give notice and establish the issues of fact and law presented and disputed.

Complaint (Pleadings)

initial pleading by the plaintiff stating his case

Summons (Pleadings)

notice given to inform a person of a lawsuit against her

Answer (Pleadings)

defendant's pleading in response to the plaintiff's complaint

Reply (Pleadings)

plaintiff's pleading in response to the defendant's answer

Civil Dispute Resolution

Final step in Pleadings and Pretrial

Pretrial Procedure

process requiring the parties to disclose what evidence is available to prove the disputed facts; designed to encourage settlement of cases or to make the trial more efficient

Judgement on pleadings (Pretrial)

a final ruling in favor of one party by the judge based on the pleadings

Discovery (pretrial)

right of each party to obtain evidence from the other party

Pretrial conference (pretrial)

a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial.

Summary judgement (pretrial)

final ruling by the judge in favor of one party based on the evidence disclosed by discovery

Trial

determines the facts and the outcome of the case

Jury Selection (trial)

each party has an unlimited number of challenges for cause and a limited number of peremptory challenges

Conduct of Trial (Trial)

consists of opening statements by attorneys, direct and cross-examination of witnesses, and closing arguments

directed verdict (trial)

final ruling by the judge in favor of one party based on the evidence introduced at trial

Jury instructions (trial)

judge gives the jury the particular rules of law that apply to the case

Verdict (trial)

the jury's decision based on those facts the jury determines the evidence proves

enforcement

plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendants and to garnishment to collect money owed to the defendant by a third party

Arbitration (Alternative Dispute Resolution) *

A nonjudicial proceeding in which a neutral party selected by the disputants renders a binding decision (award)

Conciliation (Alternative Dispute Resolution)

A nonbinding process in which a third party acts as an intermediary between the disputing parties

Mediation (Alternative Dispute Resolution) *

A nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider

Mini-Trial (Alternative Dispute Resolution) *

A nonbinding process in which attorneys for the disputing parties (typically corporations) present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party

Summary Jury Trial (Alternative Dispute Resolution)

mock trial followed by negotiations

Negotiation (Alternative Dispute Resolution)

consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties

Federalism

the division of governing power between the Federal government and the States.

Federal Supremacy

federal law takes precedence over conflicting state law

Federal Preemption

right of federal government to regulate matters within its power to the exclusion of regulation by the states

Judicial Review

Examination of governmental actions to determine whether they conform to the U.S. Constitution.

Separation of Powers

allocation of powers among executive, legislative, and judicial branches of government.

State Action

actions of governments to which constitutional provisions apply

Separation of Powers

Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law

State Regulation of Commerce (Powers of Government)

the Commerce Clause of the Constitution restricts the States'
power to regulate activities if the result obstructs interstate commerce.

Taxation and Spending (Federal Fiscal Powers)

the Constitution grants Congress broad powers to tax and spend; such powers are important to Federal regulation of the economy

Borrowing and Coining Money (Federal Fiscal Powers)

enables the federal government to establish a national banking system and to control national fiscal and monetary policy

eminent domain

the government's power to take personal property for public use with the payment of just compensation.

Contract clause (limitations on government)

restricts states from retroactively modifying contracts

First amendment (limitations on gov.)

protects most speech by using a strict scrutiny standard.

Tenth Amendment (Limitations on gov)

All powers not given to the Federal Government belong to the states and the people.

First amendment (Limitations on Gov.)

Freedom of speech

Corporate Political Speech

First Amendment protects a corporation's right to speak out on political issues

commercial speech

expression related to the economic interests of the speaker and its audience; such expression receives a lesser degree of protection

Defamation

a tort consisting of a false communication that injures a person's reputation; such communication received very limited constitutional protection.

First Amendment

1) Free Speech protects you against government interference;
2) Does not protect you against getting sued for false statements.
3) Does not protect you against getting fired for controversial speech

Due Process

Fifth and Fourteenth Amendments prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law

substantive due process

determination of whether a particular government action is compatible with individual liberties

Procedural Due Process

requires the government decision-making process to be fair and impartial if it deprives a person of life, liberty, or property

Equal Protection

requires that similarly situated persons be treated similarly by governmental actions

strict scrutiny test

exacting standard of review applicable to regulation affecting a fundamental right or involving a suspect classification

Intermediate test

standard of review applicable to regulation based on gender and legitimacy