EXAM 1 (business law)

law

the order or pattern of rules that society establishes to govern the conduct of individuals and the relationships among them

right

legal capacity to require another person to perform or refrain from an action

duty

an obligation of law imposed on a person to perform or refrain from performing a certain act

individual rights

rights people have given by the constitution

right of privacy

the right to be free from unreasonable intrusion by others

constitution

a body of principles that establishes the structure of a government and the relationship of the government to the people who are governed

statutory law

legislative acts declaring, commanding, or prohibiting something

case law

law that is found in judicial decisions

common law

the body of unwritten principles originally based upon the usages and customs of the community that were recognized and enforced

stare decisis

principles that the decision of a court should serve as a guide or precedent and control the decision of a similar case in the future

precedent

a decision of a court that stands as the law for a particular problem in the future

administrative regulation

rules made by state and federal administrative agencies (help implement the law)

private law

the rules and regulations parties agree to as a part of their contractual relationships (court won’t recognize illegal contracts)

sources of law

constitution, statutes and administrative regulations, common law, treaties, proclamations, executive orders

court system

made up of federal courts and state courts

jurisdiction

the power of a court to hear and determine a given class of cases; the power to act over a particular defendant

subject matter jurisdiction

judicial authority to hear a particular type of case

original jurisdiction

the authority to hear a controversy when it is first brought to court

general jurisdiction

the power to decide most controversies involving legal rights and duties

limited (special) jurisdiction

authority to hear only particular kinds of cases

appellate jurisdiction

the power of a court to hear and decide a given class on appeal from another court or administrative agency

trial

select jury, opening statements, presentation of evidence, motion for a directed verdict, closing arguments/summation, motion for mistrial, jury verdict, motion for new trial/judgement

appeal

taking a case to a reviewing court to determine whether the judgement of the lower court or administrative agency was correct

reversible error

an error or defect in court proceedings of so serious a nature that on appeal the appellate court will set aside the proceedings of the lower court

affirm

action taken by an appellate court that approves the decision of the court below

reverse

term used when the appellate court sets aside the verdict or judgement of a lower court

remand

term used when an appellate court sends a case back to trial court for additional hearings or new trial

federal district courts

general trial court of the federal system

defendant

party being sued

US court of appeals

final decision in a federal district court can be appealed to a court with appellate jurisdiction

en banc

term used when the full panel of judges on the appellate court hears a case

US supreme court

has appellate jurisdiction over cases that are appealed from the federal courts of appeals as well as from state supreme courts when a constitutional issue involved in the case or a state court has reversed a federal court ruling

writ of certiorari

the US Supreme Court granting a right of review by the court of a lower court decision

general trial courts

cases that do not meet the jurisdictional requirements for the federal district would be tried here

specialty courts

courts with limited jursdiction

small claims court

courts that resolve disputes between parties when those disputes do not exceed a minimal level; no lawyers are permitted; the parties represent themselves

state appellate courts

courts with appellate jurisdiction that review the decisions of lower courts in that state; decisions of the general trial courts in a state would be appealed to these courts

state supreme courts

highest court in most states

jury

body of citizens sworn by a court to determine by verdict the issues of fact submitted to them

conflicts of law

principle that determines when a court applies the law of its own state-the law of forum-or some foreign law

initial steps in a lawsuit

commencement, services of process, defendant’s response and pleading, discovery, motion for summary judgement, designation of expert witnesses

complaint

initial pleading filed by the plaintiff in a lawsuit

process

paperwork served personally on a defendant in a civil case

answer

what defendant must file to admit or deny facts asserted by the plaintiff

motion to dismiss

a pleading that may be filed to attack the other party’s pleading as not stating a cause of action or a defense

demurrer

pleading to dismiss the other party’s pleading for not stating a cause or a defense

counterclaim

claim that the defendant may make against the plaintiff

discovery

procedures for ascertaining facts prior to the time of trial in order to eliminate the element of surprise in litigation

deposition

testimony of a witness taken out of court under oath

impeach

using prior inconsistent evidence to challenge the credibility of a witness

interrogatories

written questions used as a discovery tool that must be answered under oath

requests for production of documents

discovery tool for uncovering paper evidence in a case

evidence

information given at the trial level; where judges make their money and decide whether it can be used in the court room

expert witness

one who has acquired special knowledge in a particular field as through practical experience or study, or both, whose opinion is admissible as an aid to the trier of fact

voir dire examination

preliminary examination of a juror or a witness to ascertain fitness to act as such

preemptory challenge

challenge that is used to strike (remove) a juror for any reason except on discriminatory grounds

opening statements

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

admissibility

the quality of the evidence in a case that allows it to be presented to the jury

direct examination

examination of a witness by his or her attorney

cross-examination

examination made of a witness by the attorney for the adverse party

redirect examination

questioning after cross-examination, in which the attorney for the witness testifying may ask the same witness other questions to overcome effects of the cross-examination

recross-examination

examination by the other side’s attorney that follows the redirect examination

directed verdict

direction by the trial judge to return a verdict in favor of a specified party to the action

summation

the attorney address that follows all the evidence presented in court and sums up a case and recommends a particular verdict be returned by the jury

mistrial

a court’s declaration that because of an error or misconduct that the case must be retried or dismissed

instruction

summary of the law given to jurors by the judge before deliberation begins

judgement n.o.v.

non obstante veredicto (notwithstanding the verdict), a judgement entered after verdict is so wrong that a judgement should be entered the opposite of the verdict

execution

carrying out of a judgement of a court, generally directing that property owned by the defendant be sold and the proceeds first be used to pay the execution or judgement creditor

garnishment

name given in some states to attachment proceedings

alternative dispute resolutions

nonjudicial methods for resolving disputes such as arbitration and mediation (faster, cheaper, no precedents/common law, must sign NDA)

arbitration

settlement of disputed questions, whether of flaw or fact, by one or more arbitrators

MedArb

arbitrator is also empowered to act as a mediator

expert panel

a group of people with specialized knowledge or experience who are brought together to evaluate a dispute, issue, or question and provide an opinion or deicsion

baseball arbitration

dispute-resolution process in which an arbitrator chooses between the salary proposals submitted by a professional baseball player and the team

mediation

the settlement of a dispute through the use of a messenger who carries to each side of the dispute the issues and offers in the case

pleadings

the papers filed by the parties in an action in order to set forth the facts and frame the issues to be tried

motion for summary judgement

request that the court decide a case on the basis of law only because there are no material issues of fact

reference to a third person

settlement that allows a nonparty to resolve the dispute

association tribunals

a court created by a trade association or group for the resolution of disputes among its members

summary jury trial

a mock or dry-run trial for parties to get a feel for how their cases will play to a jury

rent-a-judge

dispute resolution through private courts with judges paid to be referees for the cases

minitrial

when only part of a case is disputed, the parties must stay within the framework of a lawsuit but agree that only the disputed issues will be taken to trial and submitted to a jury

contract provisions

other provisions in contracts that serve to keep the parties calm with the hope of resolving differences without a lawsuit

what is professor’s ethical standard?

don’t be on the front page of the newspaper

federal system

system of government in which a central government is given power to administer to national concerns while individual states retain the power to administer to local concerns

constitution

body of principles that establishes the structure of a government and the relationship of the government to the people who are governed

tripartite

three-part division (of government)

legislative branch

congress - makes the laws

bicameral

two-house form of the legislative branch of government

executive branch

president - execute the laws

judicial branch

courts - interpret the laws

delegated powers

powers expressly granted the national government by the constitution

shared powers

powers that are held by both state and national governments

police power

power to govern; power to adopt laws for the protection of the public health, welfare, safety, and morals

prohibited powers

powers that a person, organization, government, or court is not legally allowed to exercise

ex post facto law

law making criminal an act that was lawful when done or that increases the penalty when done (generally prohibited by constitutional provisions)

preemption

the federal government’s superior regulatory position over state laws on the same subject area

express federal regulation

when a direct conflict exists between federal and state statutes, federal law prevails

silence of congress

the silence of congress in failing to cover a particular subject area indicates that congress does not want any law on the matter

effect of federal deregulation

if under silence of congress doctrine the states cannot regulate, they are still barred from regulating after deregulation