BUSFIN 3500 IRVINE MIDTERM

Private Law

regulates disputes between private individuals or groups Ex: if a store owner is delinquent in paying rent to the landlord, the resulting dispute is governed by this

Public Law

controls disputes between private individuals or groups and their government. Ex: if a store dumps waste behind its building in violation of loca, state, or federal environmental regulations, this will resolve the dispute

Civil Law

delineates the rights and responsibilities implied in relationships between persons and between persons and their government. It also identifies the remedies available when someone's rights are violated. Ex: in 1993 the restaurant chain Jack In The Box was ordered to pay damages after a 2 year old child died of food poisoning and sever other people became ill from eating meat gained with E coli bacteria

Criminal law

regulates incidents in which someone commits an act against the public as a whole, such as by conducting insider trading on the stock exchange

Constitutional Law

refers to the general limits and powers of these governments as stated in their written constitutions

Statutes

rules and regulations put forth by legislatures. they are written into the United States Code when they are passes by Congress or into the appropriate state codes when they are enacted by state legislatures

Statutory Law

assortment of statutes

Model/Uniform laws

Serve as a basis for some statutory law at the state level. Business activity is made more difficult when laws vary from state to state. The National Conference of Commissioners on Uniform State Laws regularly urges states to enact this to provide greater uniformity

Case/Common Law

the collection of legal interpretations made by judges. These interpretations are law unless revoked later by new statutory law

Precedent

past decisions in similar cases that guide later decisions thereby providing greater stability and predictability to the law

Stare decisis

When courts rely on precedent, they are obeying the principle of this term meaning "standing by their decision" in which rulings made in higher courts become binding precedent for lower courts

Restatements of the Law

common law evolves with the assistance of this mechanism, which are summaries of the common law rules in a particular area of the law that have been enacted by most states.

Administrative Law

the collection of rules and decisions made by all these agencies including OSHA and EPA.

Treaty

a binding agreement between two states or international organizations. I may be an international agreement, a covenant, an exchange of letters, a convention, or protocols.

Natural law

describes certain ethical laws and principles believed to be morally right and "above" the laws devised by humans. Under this, individuals have not only basic human rights but also the freedom to disobey a law enacted by people if their conscience go against it and they believe it is wrong.

Legal Positivism

sees our proper role as obedience to duly authorized law. That law is quite distinct from morality and moral questions about the law should not interfere with our inclination to obey it.

Identification with the vulnerable

on the grounds that some higher law or body of moral principles connects all of us in the human community.

Legal realism

based on the idea that, when ruling on a case, judges need to consider more than just the law; they also weigh factors such as social and economic conditions, since legal guidelines were designed by humans and exist in an ever-changing environment

Cost-benefit analysis

choosing the alternatives that maximized benefits and minimized costs; tied closely with the pursuit of efficiency

Jurisdiction

"to speak the law"; a court's power to hear cases and render decisions that bind the parties before them. A court must have several types of this to decide any particular case

Trial Courts/Courts of Original Jurisdiction

have the power to hear and decide cases when they FIRST enter the legal system. In these courts, the parties present evidence and call witnesses to testify. Federal system calls them district courts

Appellate Courts/Courts of Appellate Jurisdiction

have the power to review previous judicial decisions to determine whether trial courts erred in their decisions. Do NOT hold trials but rather review transcripts of trial court proceedings and occasionally consider additional oral and written arguments from each part

Question of Law

an issue concerning the interpretation or application of a law; Ex: whether the First Amendment protects the student's right to utter racial slurs is this

Question of Fact

a question about na event or characteristic in a case; Ex: whether a student yelled racial slurs on a college campus

Bench trial

a trial with no jury in which the judge decides questions of fact

Jury trial

the jury decides questions of fact

In Personam Jurisdictions

"jurisdiction over the person" is a court's power to render a decision affecting the rights of the specific persons before the court

Plaintiff

the person a court acquires in personam jurisdiction over when she files a lawsuit with court

Defendant

the person the plaintiff is suing

Complaint

specifies the factual and legal basis for the lawsuit and the relief the plaintiff seeks.

Summons

court order that notifies the defendant of the lawsuit and explains how and when to respond to the complaint

Service of Process

the procedure by which courts present these documents to defendants

Personal Service

An officer of the court hands the summons and complaint to the defendant

Long-arm statutes

enable the court to serve defendants outside the state as long as the defendant has sufficient minimum contacts within the state and it seems fair

In rem jurisdiction

Idaho courts have this over the property thus they have to power to seize the property and sell it to pay the property taxes in an in rem proceedings

Quasi in rem jurisdiction

attachment jurisdiction; gained over a defendant't property unrelated to the plaintiff's claim

Subject-Matter Jurisdiction

a court's power to hear certain kinds of cases. Most industrialized countries have a single court system, with courts that have the power to hear both national law cases and local law cases

Venue

determines which trial court in the system will hear the case. It is a matter of geographic location determined by each state's statutes

Standing, Case or Controversy, and Ripeness

Before a case makes it to court, it must meet these 3 requirements to ensure that courts hear only cases that genuinely require adjudication

Standing

a person who has a the legal right to bring an action to court has this. however a person must be personally affected by the outcome of a case

Case or Controversy

this requirement ensures that courts do not render advisory opinions;the relationship between the plaintiff and the defendant must be adverse, actual or threatened actions of at least one of the parties must give rise to an actual legal dispute, and courts must have the ability to render a decision that will resolve the dispute.

Ripeness

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

Pleading

the first formal stage of a lawsuit and is initiated by filing a complaint

Default judgement

a judgement in favor of the plaintiff that occurs when the defendant fails to answer the complaint and the plaintiff's complaint alleges facts that would support such judgment

Answer

when a defendant responds to the complaint, where the defendant denies, affirms, or claims no knowledge of the accuracy of the plaintiff's allegations

affirmative defense

a defendant uses an _______ when her or his answer admits that the facts contained in the complaint are accurate but also includes additional facts that justify the defendant's actions and provide a legally sound reason to deny relief to the plaintiff.

Motion to dismiss

upon receiving the complaint, if the defendant believes that even though all the plaintiff's factual allegations are true, the law does not entitle the plaintiff to a favorable judgement, the defendant may file a ______________

Motion

a request by a part for the court to do something; in this instance, the request is to dismiss the case

Counterclaim

If the defendant believes he has a claim against the plaintiff, he includes this _________ with his answer

Reply

an answer to a counterclaim

Motion for judgement on the pleadings

a request for the court to consider that all the facts in the pleadings are true and to apply the law to those facts. The court grants the motion if, after this process, it finds that the only reasonable decision is in favor of the moving party

Motion for summary judgment

Either party can file this. The motion asserts that no factual disputes exist and that if the judge applied the law to the undisputed facts, her only reasonable decision would be in favor of the moving party

Discovery

After filing the initial pleadings and motions, the parties gather information from each other through ________. This process enables the parties to learn about facts surrounding the case so that they are not surprised in the courtroom.

Interrogatories, requests to produce documents, and depositions

The 3 common discovery tools

Interrogatories

written questions that one party sends to the other to answer under oath.

Request to produce documents

forces the opposing party to produce (turn over) certain information unless it is privileged or irrelevant to the case.

deposition

attorneys examine a witness under oath

pretrial conference

an informal meeting of the judge with the attorneys representing the parties. During this, the parties try to narrow the legal and factual issues and possibly work out a settlement

Voir Dire

jury selection

peremptory challenges

allow a party to challenge a certain number of potential jurors without giving a reason

mock trials

Jury selection firms set up __________ by recruiting individuals who match the demographics of the real jury to listen to attorney' arguments and witnesses' testimony

Shadow jury

parties also often hire jury selection firms to provide _______. Like a mock trial, a _________ uses individuals whose demographics match the demographics of a trial's real jurors.

directed verdict

this motion is a request for the court to __________ for the defendant because even if the jury accepted all the evidence and testimony presented by the plaintiff as true, the jury would still have no legal basis for a decision in favor of the plaintiff

prejudicial error of law

a mistake so significant that it likely affected the outcome of the case.

brief

written argument

writ of certiorari

an order to the lower court to send the Supreme Court the record of the case

tort

a wrong or injury to another, other than a breach of contract

Intentional torts

occur when the defendant takes an action intending certain consequences or knowing they are likely to result

Negligent torts

occur when the defendant acts in a way that subjects other people to an unreasonable risk of harm. In other words, the defendant is careless to someone else's detriment

Strict-liability torts

occur when the defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes

assault

occurs when on person places another in fear or apprehension of san immediate, offensive bodily contact

battery

an intentional, unwanted offensive bodily contact

defamation

the intentional publication of a false statement harmful to an individual's reputation

absolute privilege

cannot be sued for defamation for any false statements made, regardless of intent or knowledge of their falsity

conditional privilege

a party will not be held liable for defamation unless the false statement was made with actual malice

actual malice

with either knowledge of its falsity or reckless disregard for its truth

public figure privilege

do not hold people liable for making false statements against a public figure as long as they are not said with malice

false light

closely related to defamation and occurs when publicly about a person creates an impression about the individual that is not valid

Public disclosure of private facts

occurs when someone publicizes a private fact about another that is reasonable person would find highly offensive

appropriation for commercial gain

occurs when someone uses another person's name, likeness, voice or other identifying characteristic for commercial gain

intrusion on an individual's affairs or seclusion

occurs when someone invades a person's solitude, seclusion or personal affairs when the person has the right to expect privacy

false imprisonment

occurs when an individual is confined or restrained against his or her will for an appreciable period of time. It may occur by either physical restraint, such as tying someone to a chair, physical force, such as forcibly pinning someone against a wall, a threat to use immediate physical force, or refusal to release the plaintiff's property

intentional infliction of emotional distress

occurs when someone engages in outrageous, intentional conduct likely to cause extreme emotional distress to another party

malicious prosecution or wrongful civil proceedings

compensate those wrongfully charged with either criminal or civil matters. Successful plaintiffs are entitled to damages for legal fees related to the improperly brought litigation; harm to reputation, credit, or standing caused by the false claims, and any emotional distress cause by the improper litigations

abuse of process

applies to bother criminal and civil matters in which a legal procedure is misused to achieve a different goal that it intends

trespass to realty

when a person intentionally enters the land of another without permission, causes an object to be placed on the land of another without the landowner's permission, stays on the land of another when the owner tells him to depart, or refuses to remove something he placed on the property that the landowner asked him to remove

private nuisance

occurs when a person uses her property in an unreasonable manner that harms a neighbor's use or enjoyment of his property

trespass to personalty

by temporarily exerting control over another's personal property or interfering with the owner's right to use it.

conversion

occurs when a person permanently removes personal property from the owner's possession and control

disparagement

a tort designed to protect one's property interests, whereas defamation is designed to protect one's repetitional interests

slander of quality (if spoken) or trade libel (if written)

when such statements are criticisms of the quality honesty or reputation of the business or product

food disparagement

such laws provide ranchers and farmers with a cause of action when someone knowingly makes false, damaging statements about a food product

intentional interference with contract

to successfully bring this claim, the plaintiff must prove a valid and enforceable contract between the two parties existed; the defendant knew of the existence of the contract and its terms; the defendant intentional undertook steps to cause one of the parties to breach the contract and the plaintiff was injured as a result of the breach

unfair competition

this tort exists because U.S. law protects businesses action on the profit motive. Thus, when someone enters an industry with the sole intent of driving another firm out of business, the law punishes this act as ___________

Fraudulent misrepresentation

occurs when a party uses intentional deceit to facilitate personal gain. to prove this tort occurred, the injured party must demonstrate all of the following

1. someone knowingly or with reckless disregard for the truth, misrepresented material facts and conditions

2. the defendant intended to have other parties rely on the misrepresentations

3. the injured party reasonably relied on the misrepresentations

4. the injured party suffered damages because of this reliance

5. a direct link exists between the injuries suffered and a reliance on the misrepresentations

compensatory damages

primary type of damages designed to compensate the victim for all othe harm caused by the person who committed the tort

tortfeasor

the person who committed the tort

nominal changes

small amount of money given to recognize that a defendant did indeed commit a tort in a case where the plaintiff suffered no compensable damages

negligence

behavior that creates an unreasonable risk of harm to others

unfortunate accident

an incident that simply could not be avoided, even with reasonable care