Business Law Exam #1 (Ch. 1, 3, 4, 5) - Duquesne University

Law

That which must be obeyed and followed by citizens, subject to sanctions or legal consequences; a body of rules of action or conduct prescribed by controlling authority and having binding legal force.

Jurisprudence

The philosophy or science of law

Natural Law School

Law is based on what is "correct"

Moral Theory of Law

A natural law theory that states that law should be based on morality and ethics

English Common Law

Law developed by judges who issued their opinions when deciding a case. The principles announced in these cases became precedent for later judges deciding similar cases.

Constitution of the United States of America

the supreme law of the United States

What are the three branches of US government?

1. Legislative Branch (Congress)

2. Executive Branch (President)

3. Judicial Branch (Courts)

Do states have constitutions?

Yes, they have power over anything the US constitution doesn't cover.

Treaty

A compact made between two or more nations

Statute

Written law enacted by the legislative branch of the federal and state governments that establishes certain courses of conduct that covered parties must adhere to.

Ordinances

Law enacted by local government bodies, such as cities and municipalities, counties, school districts, and water districts.

Executive Orders

An order issued by a member of the executive branch of the government

Administrative Agencies

Agencies (such as the Securities and Exchange Commission and the Federal Trade Commission) that the legislative and executive branches of federal and state governments are empowered to establish.

Judicial Decision

A decision about an individual lawsuit issued by a federal or state court

Precedent

A rule of law established in a court decision. Lower courts must follow the precedent established at higher courts.

Stare Decisis

Latin for "let the decision stand." Adherence to the precedent.

Priority of Law in the US

The U.S. Constitution and treaties take precedence over all other laws

Federal statutes take precedence over federal regulations

Valid federal law takes precedence over conflicting state or local law

State constitutions rank as the highest state law

State statutes take precedence over state regulations

Valid state law takes precedence over local laws

Socratic Method

A process that consists of a series of questions and answers and a give-and-take inquiry and debate between a professor and students.

IRAC Method

A method used to examine a law case. IRAC is an acronym that stands for issue, rule, application, and conclusion.

Limited-Jurisdiction Trial Courts

A court that hears matters of a specialized or limited nature:

Traffic, juvenile, justice-of-the-peace, family law, etc.

General-Jurisdiction Trial Court

A court that hears cases of a general nature that are not within the jurisdiction of limited-jurisdiction trial courts. Testimony and evidence at trial are recorded and stored for future reference.

Intermediate Appellate Courts

A court that hears appeals from a trial

Highest State Court

The highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts

Special Federal Courts

Federal courts that hear matters of specialized or limited jurisdiction.

U.S. District Courts

the federal court system's trial courts of general jurisdiction

U.S. Court of Appeals

The federal court system's intermediate appellate courts

U.S. Court of Appeals for the Federal Circuit

A U.S. Court of Appeals in Washington DC, that has special appellate jurisdiction to review the decisions of the Court of Federal Claims, the Patent and Trademark Office, and the Court of International Trade.

Supreme Court of the United States

The highest court in the United States, located in Washington DC. The Supreme Court was created by Article III of the U.S. Constitution.

Petition for Certiorari

A petition asking the Supreme Court to hear a case

Writ of Certiorari

An official notice that the supreme court will review a case

Unanimous Decision

When all the justices voting agree as to the outcome and reasoning used to decide a case

Majority Decision

If a majority of the justices agree as to the outcome and reasoning used to decide a case.

Plurality Decision

If a majority of the justices agree as to the outcome of a case but not as to the reasoning for reaching the outcome

Tie Decision

When there is a tie in the vote of the justices. The lower courts ruling is held, but the case is not used as precedence

Federal Question Case

A case arising under the U.S. Constitution, treaties, or federal statutes and regulations.

Diversity of Citizenship

A means for bringing a lawsuit in federal court that involves a non-federal question if the parties are (1) citizens of different states or (2) a citizen of a state and a citizen or subject of a foreign country.

Exclusive Jurisdiction

Authority of only federal courts to hear and decide cases

Concurrent Jurisdiction

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

Standing to Sue

Having some stake in the outcome of a lawsuit

In Personam Jurisdiction

Jurisdiction over the parties to a lawsuit

Service of Process

A summons being served on a defendant to obtain personal jurisdiction over him or her

Long-Arm Statute

A statute that extends a state's jurisdiction to nonresidents who were not served a summons within the state.

In Rem Jurisdiction

Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit

Quasi In Rem Jurisdiction

Jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state.

Venue

A concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside

Change of Venue

The moving of a trial to a different location

Forum Selection Clause

A contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract

Choice-of-Law Clause

A contract provision that designates a certain state's law or country's law that will be applied in any dispute concerning nonperformance of the contract.

Zippo Manufacturing Company v. Zippo Dot Com, Inc.

An important case that established a test for determining when a court has jurisdiction over the owner or operator of an interactive, semi-interactive, or passive website.

Administrative Agencies

Agencies created by governments to enforce regulatory statutes.

Administrative Law

Law that governments enact to regulate industries, businesses, and professionals.

Federal Administrative Agencies

Federal administrative agencies that are created by the U.S. Congress

State Administrative Agencies

Agencies created by legislative branches of states to administer state regulatory laws

Local Administrative Agencies

Agencies created by cities, municipalities, and counties to administer local regulatory law.

Cabinet-Level Departments

Federal departments that advise the president and are responsible for enforcing specific administrative statutes enacted by Congress.

Substantive Rule

A rule issued by an administrative agency that has the force of law and to which covered persons and businesses must adhere.

Judicial Authority

Authority of an administrative agency to adjudicate cases in an administrative proceeding

Executive Power

The power of administrative agencies to investigate and prosecute possible violations of statutes and rules.

Administrative Procedure Act (APA)

A federal statute that establishes procedures to be followed by federal administrative agencies while conducting their affairs

Administrative Law Judge (ALJ)

An employee of an administrative agency who presides over an administrative proceeding and decides questions of law and fact concerning cases.

Judicial Review

The power of the courts to review an administrative agency decision or rule

Minimum Contact

An amount of contact that a defendant must have with a state in order for that state's courts to have jurisdiction over that person or business

Litigation

The process of bringing, maintaining, and defending a lawsuit

Pleadings

The paperwork that is filed with the court to initiate and respond to a lawsuit

Plaintiff

The party who files a complaint

Complaint

The document a plaintiff files with the court and serves on the defendant to initiate a lawsuit

Summons

A court order that directs the defendant to appear in court and answer the complaint

Defendant

The party who files an answer

Answer

The defendant's written response to a plaintiff's complaint that is filed with the court and served on the plaintiff

Default Judgement

If the defendant does not answer the complaint, this establishes the defendant's liability. The plaintiff then has only to prove damages.

Cross-Complaint

A document filed by the defendant against the plaintiff to seek damages or some other remedy

Reply

A document filed by the original plaintiff to answer the defendant's cross-complaint

Intervention

The act of others to join as parties to an existing lawsuit

Consolidation

The act of a court to combine two or more separate lawsuits into one lawsuit

Class Action

A lawsuit where a group of plaintiffs with common claims collectively bring a lawsuit against a defendant

Statute of Limitations

A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant

Discovery

A legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial

Deposition

Oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed.

Deponent

A party who gives his or her deposition

Interrogatories

Written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time.

Production of Documents

A request by one party to another party to produce all documents relevant to the case prior to the trial

Physical or Mental Examination

A court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries

Pretrial Motions

A motion a party can make to try to dispose of all or part of a lawsuit prior to trial

Motion for Judgment on the Pleadings

A motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts

Motion for Summary Judgement

A motion that asserts that there are no factual disputes to be decided by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony.

Settlement Conference

A hearing before a trial in order to facilitate the settlement of a case. If no settlement is made, the hearing is used to go over the major trial issues and other relevant factors

Trier of Fact

The jury in a jury trial; the judge where there is not a jury trial

Voir Dire

The process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions

Opening Statements

An attorney usually summarizes the main factual and legal issue of the case and describes why he or she believes that their client's position is valid

Burden of Proof

the obligation to present evidence to support one's claim

Direct Examination

a witness has been sworn in, the plantiff's attorney examines the witness

Cross-examination

The questioning of an opposing witness during a trial.

Rebuttal

After the defendant's attorney has finished calling witnesses, the plantiff's attorney can call witnesses and put forth evidence to rebut the defendant's case

Rejoinder

The defendant's attorney can call additional witnesses and introduce other evidence to counter the rebuttal.

Jury Instructions (charges)

instructions that the judge gives to the jury that inform the jurors of the law to be applied in the case

Judgement

the official decision of the court

Electronic Court (e-court)

A court that either mandates or permits the electronic filing of pleadings, briefs, and other documents related to a lawsuit. Also called a virtual courthouse.

Electronic Filing (e-filing)

the electronic filing of pleadings, briefs, and other documents with the court

Appeal

the act of asking an appellate court to overturn a decision after the trial court's final judgment has been entered

Appellant (petitioner)

the appealing party in an appeal