Business Law Exam 1 Mizzou

Tort

legal language for a civil [noncriminal] harm committed against another in which the injured party can sue for damages

Business law

consists of the enforceable rules of conduct that govern commercial relationships

private law

Involves disputes between private individuals or groups

public law

Involves disputes between private individuals or groups and their government

civil law

involves the rights & responsibilities found in relationships between persons & between persons & their gov

criminal law

applies to situations in which somebody commits an act against the public as a unit. These crimes are prosecuted not by individuals but by the state or federal gov.

constitutional law

refers to the general limits and powers of the federal & state gov

statutes

legislative actions

statutory law

the assortment of rules & regulations put forth by legislatures

model/uniform laws

Laws created to account for the variability of laws among states. These laws serve to standardize the otherwise different interstate laws.

case/common law

collection of legal interpretations made by judges

precedent

the use of past decisions to guide future decisions

example of precedent

When the lady spilled hot coffee on herself at McD's & the lid didn't have a "warning hot" label so other restaurants started putting warnings on lids

stare decisis

"Standing by the decision"; a principle stating that rulings made in higher courts are binding precedent for lower courts.

Restatements of the law

Summaries of common law rules in a particular area of the law that have have been enacted by most states

administrative law

the collection of rules and decisions made by all these administrative agencies.

treaty

a binding agreement between 2 states or international orgs

-similar to a contract

Legal realism

based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs

-judges need to consider more than just the law

Jurisdiction

A court's power to hear a case

Trial courts (aka. courts of common plea OR county courts OR federal district courts)

have the power to hear and decide cases when they first enter the legal system

courts of appellate jurisdiction

have the power to review previous judicial decisions to determine whether courts erred in their decision

Who handles the question of law?

appellate courts

question of law

an issue concerning the interpretation or application of a law

question of fact

a question about an event or characteristic in a case

Who determines question of fact?

trial courts

in personam jurisdiction

a courts power to render a decision affecting the rights of the specific persons before the court

plantiff

the person or party who initiates a lawsuit before a court by filing a complaint with the clerk of the court against the defendant(s)

Defendant

The person or party against whom a civil or criminal lawsuit is filed in a court of law

Complaint

a formal notice that a lawsuit is being brought

Summons

a notice directing someone to appear in court to answer a complaint or a charge

service of process

The delivery of the complaint and summons to a defendant.

long arm statute

enables the court to serve defendants outside the state as long as the defendant has sufficient minimum contacts within the state

in rem jurisdiction

"jurisdiction over the thing"

quasi in rem jurisdiction

Jurisdiction over real or personal property when the lawsuit has to do with personal liabilities not directly associated with the property.

Subject Matter Jurisdiction

the power of a court to hear a particular type of case

-State & federal

Concurrent jurisdiction

authority for both state and federal courts to hear and decide cases

Exclusive Federal Jurisdiction

jurisdiction that permits only the federal courts to hear a case

-bankruptcy

-federal criminal prosecutions

-one state sues another state

State Jurisdiction

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

-divorce

-adoption

federal question cases

require an interpretation of the US Constitution, a federal statute, or a federal treaty

Diversity of Citizenship

case must satisfy 2 conditions

1) plaintiff does not reside in the same state as the defendant

2) The controversy concerns an amount in excess of 75k

venue

a matter of geographic location that each state's statutes determine

Federal court system derives its power from where?

Article III, Section 2 of the US constitution

The federal court system consists of 3 main levels:

-trial court

-intermediate appellate court

-court of last resort

How many district courts are there?

94

How many circuit courts does the Intermediate Court of Appeals have?

12 circuits

How many justices make up the court of last Resort?

9 justices that are appointed for a lifetime

Before a case makes it to court, it must meet 3 threshold requirements:

-standing

-case or controversy

-ripeness

Standing

a person who has the legal right to bring an action in court

-must personally affect him or her

case or controversy

requirement ensures that courts do not render advisory opinions

ripeness

a case is ripe if a judge's decision is capable of affecting the parties immediately

moot

there is no point in the courts hearing the case b/c no judgement can affect the situation between the parties

The Pretrial stage

Informal Negotiations

Pleadings

Service of Process

Defendant's Response

Pretrial Motions

Discovery

Pretrial Conference

default judgement

a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

motion to dismiss

a request that the court terminate a case without permitting it to go further b/c even if all the allegations are true, the plaintiff is not entitled to any legal relief (aka demurrer)

counterclaim

A claim made by a defendant against the plaintiff that is filed along with the defendants answers

reply

a response by the plaintiff to the defendant's counterclaim

motion for judgement on the pleadings

request for the court to consider all the facts in the pleadings are true & to apply the law to those facts

3 common discovery tools

interrogatories

requests to produce documents

depositions

Interrogatories

A 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.

a request to produce documents

forces the opposing party to produce certain information unless it is privileged or irrelevant to the case

deposition

Attorneys examine a witness under oath

pretrial conference

informal meeting of the judge with the attorneys representing the parties

Trials have 6 stages:

-jury selection

-opening statements

-examination fo witnesses

-closing arguments

-conference on jury instructions

-posttrial motions

voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

peremptory challenge

Removal of a prospective juror without giving any reason. Attorneys are allowed a limited number of such challenges.

opening statements

statements by opposing attorneys that tell the jury what their cases will prove

direct examination

plaintiff's attorney questions witness

cross examination

may ask only questions related to the witness direct examination

redirect examination

a series of questions aimed at repairing damage done by cross-examination

directed verdict

A ruling by the judge, after the plaintiff has put forward his or her case but before any evidence is put forward by the defendant, in favor of the defendant because the plaintiff has failed to present the minimum amount of evidence necessary to establish his or her claim.

-rare

closing arguments

arguments made by each side's attorney after the cases for the plaintiff and defendant have been presented

jury instructions

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

prejudicial error

an error that affects the outcome of a case

Alternative Dispute Resolution (ADR)

the resolution of disputes through methods other than litigation

ADR examples

-negotiation

-mediation

-arbitration

-summary jury trials

-minitrials

-neutral case evaluations

-private trials

negotiation

informal discussions to resolve conflict

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

resolution of the dispute by a neutral 3rd party outside the judicial setting

med-arb

parties agree to attempt to solve the dispute through mediation, but will shift to arbitration if med is not successful

summary jury trial

an abbreviated trial that leads to a nonbinding jury verdict

minitrial

a form of dispute resolution available only to corporations that uses corporate executives, along with a neutral 3rd party, to resolve the dispute

early neutral case evaluation

3rd party to evaluate strength & weaknesses of each side to help negotiate settlement

private trials

retired judge is used to solve dispute & process is private

advantages of arbitration

-more efficient & less expensive

-parties have more control over the process of dispute resolution

-parties can choose arbitrator with expertise in specific subject matter of dispute

-greater flexibility in decision making

federalism

a system of government in which power is divided between a central authority and constituent political units

Checks and Balances

Each branch of government has the power to check, or limit, the actions of the other two

Judicial Review

Allows the court to determine the constitutionality of laws

Supremacy Clause is located in which article

Article VI

Supremacy Clause

Provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land."

federal preemption

a principle asserting the supremacy of federal legislation over state legislation when both pertain to the same matter

commerce clause is found in article

Article 1 section 8

Commerce clause

empowers Congress to "regulate commerce with other nations, and among the several states"

police power

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

Examples of police power

state criminal laws, building codes, zoning laws, sanitation standards for restaurants, & regulations for the practice of medicine

Dormant commerce clause

restriction on states' authority to pass laws that substantially affect interstate commerce

Which article gives the fed gove the "power to lay & collect taxes, duties, imports & excises"?

Article 1, Section 8

Privileges and Immunities Clause

prevents a state from treating citizens of other states in a discriminatory manner.

Which article is the Privileges & immunities clause?

Article IV Section 2

Full Faith and Credit Clause

Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state

Which article is the Full faith and Credit Clause?

Article IV Section 1