Business Law Midterm 1

liability

the state of begin legally responsible (liable) for something, such as a debt or obligation

primary source of law

a source that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or court decision

secondary source of law

a publication that summarizes or interprets the law, such as a legal encyclopedia, a legal treatise, or an article in a law review

Constitutional law

the body of law derived from the US Constitution and the constitutions of the various states

ordinance

a regulation enacted by a city or a county legislative body that becomes part of that city’s or county’s statutory law

administrative law

the body of law created by administrative agencies in order to carry out their duties and responsibilities

statutory law

the body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law)

citation

a reference to a publication in which a legal authority - such as a statute or a court decision - or other source can be found

administrative agency

a federal, state, or local government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment

uniform laws

model laws developed by the National Conference of Commissioners on Uniform State Las for the states to consider enacting into statute

adjudicate

to render a judicial decision; adjudication is the trial-like proceeding in which an administrative law judge hears and resolves disputes involving an administrative agency’s regulation

interpretive rules

nonbinding rules or policy statements issued by an administrative agency that explain how it interprets and intends to apply the statutes it enforces

administrative law judge (ALJ)

one who presides over an administrative agency hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact

common law

the body of law developed from custom or judicial decisions in English and US courts, not attributable to a legislature

enabling legislation

a statute enacted by Congress that authorizes the creation of an administrative agency and specifies the name, composition, and powers of the agency being created

administrative process

the procedure used by administrative agencies in fulfilling their basic functions: rulemaking, enforcement, and adjudication

rulemaking

the process by which an admin agency formally adopts a new regulation or amends or removes an old one

legislative rules

an admin agency rule that carries the same weight as a congressionally enacted statute

case law

the rules of law announced in court decisions; case law interprets statutes, regulations, and constitutional provisions, and governs all areas not covered by statutory or administrative law

binding authority

any source of law that a court must follow when deciding a case

precedent

a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts

defendant

one against whom a lawsuit is brought or the accused person in a criminal proceeding

allege

to state, recite, assert, or charge

natural law

the oldest school of legal thought, based on the belief that the legal system should reflect universal (“higher”) moral and ethical principles that are inherent in human nature

stare decisis

a common law doctrine under which judges are obligated to follow the precedents established in prior decisions

persuasive authority

any legal authority or source of law that a court may look to for guidance but need not follow when making its decision

legal reasoning

the process of reasoning by which a judge harmonizes their opinion with the judicial decisions in previous cases

plaintiff

one who initiates a lawsuit

case on point

a previous case involving factual circumstances and issues that are similar to those in the case before the court

equitable maxims

general propositions or principles of law that have to do with fairness (equity)

legal positivism

a school of legal thought centered on the assumption that there is no law higher than laws created by a national gov; laws must be obeyed, even if they are unjust, to prevent anarchy

substantive law

law that defines, describes, regulates, and creates legal rights and obligations

historical school

a school of legal thought that looks to the past to determine what the principles of contemporary law should be

national law

law that pertains to a particular nation (as opposed to international law)

jurisprudence

the science or philosophy law

remedy

the relief given to an innocent party to enforce or compensate for the violation of a right

procedural law

law that establishes the methods of enforcing the rights established by substantive law

cyberlaw

an informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet

civil law

the branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters

criminal law

the branch of law that defines and punishes wrongful actions committed against the public

dissenting opinion

a court opinion that presents the views of one or more judges or justices who disagree with the majority’s decision

concurring opinion

a court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority’s opinion

plurality opinion

a court opinion that is joined by the largest number of judges or justices hearing the case, but less than half of the total number

civil law system

a system of law derived from Roman law that is based on codified laws (rather than on case precedents)i

International law

the law that governs relations among nations

majority opinion

a court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case

per curiam opinion

a court opinion that does not indicate which judge or justice authored the opinion

jurisdiction

the authority of a court to hear and decide a specific case

judicial review

the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch

concurrent jurisdiction

jurisdiction that exists when two different courts have the power to hear a case

federal question

a question that pertains to the US Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case

exclusive jurisdiction

jurisdiction that exists when a case can be heard only in a particular court or type of court

long arm statute

a state statute that permits a state to exercise jdx over nonresident defendants

probate court

a state court of limited jdx that conducts proceedings relating to the settlement of a deceased person’s estate

bankruptcy court

a federal court of limited jdx that handles only bankruptcy proceedings, which are governed by federal bankruptcy law

diversity of citizenship

a basis for fed court jdx over a lawsuit between a US citizen and a citizen of a different country

justiciable controversy

a controversy that is not hypothetical or academic but real and substantial; it is a requirement that must be satisfied before a court will hear a case

standing to sue

the legal requirement that an individual must have a sufficient stake in a controversy in order to bring a lawsuit

question of fact

in a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point

venue

the geographic district in which a legal action is tried and from which the jury is selected

question of law

in a lawsuit, an issue involving the application or interpretation of a law

small claims court

a special court in which parties can litigate small claims without an attorney

writ of certiorari

a writ from a higher court asking a lower court for the record of a case

rule of four

a rule of the US Supreme Court under which the Court will not issue a writ certiorari unless at least four justices approve of the decision to issue the writ

litigation

the process of resolving a dispute through the court system

complaint

the pleading made by a plaintiff alleging wrongdoing on the part of the defendant; when filed with a court, the complaint initiates a lawsuit

pleadings

statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case

service of process

the delivery of the complaint and summons to a defendant

summons

a document informing a defendant that a legal action has been commenced against them and that they must appear in court on a certain date to answer the plaintiff’s complaint

motion to dismiss

a pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff’s claim to state a cause of action has no basis in law

answer

procedurally, a defendant’s response to the plaintiff’s complaint

deposition

the testimony of a party to a lawsuit or a witness taken under oath before a trial

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

reply

procedurally, a plaintiff’s response to a defendant’s answer

counterclaim

a claim made by a defendant in a civil lawsuit against the plaintiff; in effect, the defendant is suing the plaintiff

motion for judgement on the pleadings

a motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial; the motion will be granted only if no facts are in dispute

discovery

a method by which the opposing parties obtain information from each other to prepare for trial

motion for summary judgement

a motion requesting the court to enter a judgement without proceeding to trial; the motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute

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

e-evidence

a type of evidence that consists of computer-generated or electronically recorded information

metadata

data that are automatically recorded by electric devices and provide information about who created a file and when, and who accessed, modified, or transmitted the file; it can be described as data about data

voir dire

a part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors

motion for a new trial

a motion asserting that the trial was so fundamentally flawed (bc of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice

motion for a directed verdict

a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support a claim

award

the monetary compensation given to a party at the end of a trial or other proceeding

motion for judgement n.o.v

a motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury’s verdict was unreasonable and erroneous

docket

the list of cases entered on a court’s calendar and thus scheduled to be heard by the court

brief

a written summary or statement prepared by one side in a lawsuit to explain its case to the judge

alternative dispute resolution (ADR)

the resolution of disputes in ways other than those involved in the traditional judicidal process, such as negotiation, mediation, and arbitration

negotiation

a process in which parties attempt to settle their dispute informally, with or without attorneys to represent them

mediation

a method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement

arbitration

the settling of a dispute by submitting it to a disinterested third party (other than a court) who renders a decision

arbitration clause

a clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court

summary jury trial (SJT)

a method of settling disputes by holding a trial in which the jury’s verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow

online dispute resolution

the resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet