BLAW 3100 Business Law key terms notes PDF

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BLAW 3100 Business Law key terms notes...

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Constitutions - establish governmental structure, specific rights and duties Statutes - written laws enacted by legislatures Common/case law - made and applied by judges at the state level as judges decide cases according to the doctrine of precedent or stare decisis Stare decisis - Let the decision stand; decisions are based on precedents from previous cases equity - is applied by state level judiciary to achieve justice when common law rules would produce unfair results injunction - court forbids a party to do some act or orders a party to perform an act specific performance - a party is ordered to perform according to the terms of her contract reformation - the court rewrites the contract's terms to reflect the parties' real intentions recission - the cancellation of a contract; goes back to policy inception with all premiums paid minus and payments; usually do to fraud, concealment or material misrepresentation administrative regulations and decisions - made by state and federal agencies that were created by statute and hold delegated (granted) power treaty - made by other nations, by the US pres on behalf of the US, approved by the senate ordinance - made by subunits of state governments (e.g., counties, cities) for local issues, such as zoning executive order - issued by the pres or a state governor under limited powers federal supremecy - a rule of priority for conflicts between laws stating that the U.S. Constitution is the supreme law federal supremecy - Federal law defeats state law State constitution defeats state legislation Statute defeats administrative regulation Statute or regulation defeats common law criminal law - establishes duties to society Government charges and prosecutes defendant, who will be found guilty or innocent A convicted defendant will be imprisoned or fined civil law - establishes duties and obligations between private parties

Plaintiff sues defendant for monetary damages or equitable relief A defendant will be held liable or not liable for the plaintiff's injury substantive law - establishes rights and duties of people in society- ex: a statute making a murder a crime procedural law - establishes how to enforce those rights and duties- ex: rules for the proper conduct of a trial are rules of a ____ public law - the relationship between govts and private parties ex: constitutional, statutory and administrative law private law - refers to the regulation of conduct between private parties ex: contract, tort, or property laws jurisprudence - refers to the philosophy of law as well as the collection of laws legal positivism - law is the command of a recognized political authority -- just or unjust, law must be obeyed natural law - unversal moral rules bind all people whether written or not-- unjust positive laws are invalid american legal realism - defines law as the behavior of the judiciary as they rule on matters within the legal system -Thus law in action dominates positive law Sociological Jurisprudence - unites theories that examine law within its social context functions of law - Peacekeeping Checking government power and promoting personal freedom Facilitating planning and the realization of reasonable expectations Promoting economic growth through free competition Promoting social justice Protecting the environment legal reasoning - Basically deductive, with legal rule as major premise and facts as the minor premise --Result is product of the two case law reasoning - court may stand on precedent or distinguish prior case from current case-- if precedent is inapplicable, new rule is developed plain meaning rule - court applies statute according to usual meaning of the words

Statuatory Interpretation - Courts may interpret a statute in light of a general public purpose or public policy --Courts follow prior interpretation of a statute (precedent) to promote consistency --Maxims may be used to assist in statutory interpretation limitations on judicial power - -courts limited to deciding existing cases/controversies- the dispute must be current and not yet resolved -parties must have standing to sue Courts are: a. Limited to hearing existing cases or controversies b. Limited to hearing cases in which plaintiff has standing (a direct interest in the outcome) c. Unlimited in types of cases they may hear d. All of the above e. Both A & B - a The plain meaning rule means that the court applies a statute a. according to the unique or special meaning of words b. according to usual meaning of the words c. according to public policy and legislative purpose - b civil law establishes the duties an individual has to keeping a civil society - false substantive law establishes how to enforce the rights and duties of people in society - false jurisprudence refers the philosophy of law as well as the collection of laws - true legal reasoning is basicially inductive - false- it is inductive the constitution, statutues, and case law are sources of law in the US - true agency regulations, presidential orders, and treaties are sources of law inthe US - true stare decisis refers to the doctrine of equity - false- refers to the doctrine of the precedent. The doctrine of equity is applied by judges to achieve justice when legal rules would produce unfair results. the supremecy clause states that the US constitution is the supreme law of the land - True

court - established by a government to hear and decide matters before it and redress past or prevent future wrongs jurisdiction - the power to hear and speak-- may be original or appellate general jurisdiction courts - hear most types of cases- levels generally classified according to $ amts of damages or location ex: trial courts, county or district courts limited jurisdiction courts - hear specialized types of cases; appeals from decisions often require new trial in general jurisdiction court ex: traffic, tax or family court subject matter jurisdiction - refers to a court's authority to hear a particular type of dispute courts of criminal jurisdiction - Hear trials of crimes and misdemeanors Offenses against the public at large Courts of Civil Jurisdiction - hear and decide issues concerning private rights and duties (e.g., contracts, torts), and non-criminal public matters (e.g., zoning, probate) in personam jurisdiction - requires that the defendant be a resident of, located within, or have committed acts within the physical boundaries of the court's authority in rem jurisdiction - applies when property that is the subject of a dispute is located within the physical boundaries of a court's authority ex: a dispute over a sale diversity jurisdiction - exists when the dispute is between citizens of different states and amount exceeds $75,000 Federal Question Jurisdiction - exists when the case arises under the constitution, laws, or treaties of the US federal court hierarchy - top to bottom-- US supreme court (appellate jurisdiction, final review/decision----court of appeals (appellate jurisdiction)--- district courts (trial, original juris) or statuatory courts (original limited juris) State Court Hierarchy - -State Supreme Court (Final appellate) -State civil/criminal Court of Appeal -District courts (trial courts for civil matter under certain $$) and criminal courts -County courts (civil for under $$) -Justice of the peace courts (small claims and misdemeaner courts) -Limited jurisdiction courts (family, traffic)

civil procedure - set of legal rules establishing how a civil lawsuit proceeds from beginning to end adversarial system - trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law-- plaintiff bears the burden of proof to prove their case by a preponderance of the evidence, Civil pre-trial procedures - 1) action or event occurs that allegedly causes harm 2) injured party (plaintiff) files petition or complaint 3) sheriff serves process (writ, notice, summons) on defendant 4) defendant answers complaint 5) case proceeds to trial or settlement pleadings - plaintiff's complaint or petition plus the defendants answer/response --Defendant may enter a counterclain or a cross complaint against a 3rd party - other parties may enter the case motion practice - some motions ask the judge to decide the result before trial motion to dismiss (demurrer) - a request by the defendant that asks a judge or a court in a civil case to dismiss the case because even if all the allegations are true, the plaintiff is not entitled to any legal relief motion for judgment 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. motion for summary judgment - A motion requesting the court to enter a judgment 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. motions - should not be taken lightly!! discovery - obtaining evidence from the other party through interoggatories, requests for admissions, request for docs, and depositions --- can be a battleground pretrial conference - Where judge will hear and rule on many evidentiary issues, discovery disputes, and other concerns Interoggatories - a written question which is formally put to one party in a case by another party and which must be answered

request for admissions - During the pre-trial discovery phase of a civil lawsuit, the parties may ask the other side to admit to certain facts in the case through the use of a written request for admissions, which are answered by the party under oath. depositions - Oral questions asked of parties and witnesses under oath. arbitration - dispute settled by one or more arbitrators selected by the parties to a dispute; relatively formal; Uniform or Federal Arbitration acts typically used mediation - parties choose neutral party to aid resolution of dispute reference to third party - dispute resolution by rent-a-judge, minitrial, summary jury trial, or association tribunal why choose ADR? - Less costly, in general May be more appropriate method of resolution for certain types of cases Example: family law disputes, real estate disputes between neighbors, high-tech or trade-secret disputes May be required by clause in contract A trial court has original jurisdiction and an appellate court has appellate jurisdiction - true The difference between general jurisdiction and limited jurisdiction is based on the amount in controversy (the damages amount) - false- General jurisdiction refers to a court that may hear a wide variety of cases, but limited jurisdiction refers to a court that may only hear specific types of cases, such as traffic, probate, or family disputes. Subject-matter jurisdiction refers to a court's authority to hear a particular type of dispute - true In personam jurisdiction refers to the court's jurisdiction over the defendant, but in rem jurisdiction refers to the court's jurisdiction over the property in dispute - true The burden of proof solely rests on the plaintiff - false- The burden of proof begins with the plaintiff. Once the plaintiff can prove a prima facie case with clear and convincing evidence, the burden can be shifted to the defendant. Matters of law are determined by either the jury or the judge. - false- Only a judge may determine a matter of law. A judge or a jury may act as the trier of fact. Diversity jurisdiction refers to: a. a jury pool that reflects the ethnic makeup of the city b. a citizen's lawsuit against the government c. a lawsuit by a citizen of one state against a citizen of a different state - c

Methods of alternative dispute resolution - mediation, arbitration and summary jury trial Discovery refers to: a. the discovery that a dispute exists b. the pre-trial process involving interrogatories, requests for admissions, and requests for documents c. the analysis of fault in a dispute - b After the verdict: a. Either party may make post-verdict motions b. The trial must end c. The trial begins - a jury selection - The process whereby, according to law and precedent, members of a trial jury are chosen. voir dire or jury questioning - Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge. Civil Trial Procedure - 1) jury selection, opening statement from each party 2) -plaintiff's case thru direct exam of witnesses (defendant cross examines) -defendant's case thru direct exam (plaintiff cross examines) 3) closing argument or summation from each party 4) jury verdict 5) possible trial motions motions in limine - motion to suppress certain information from the jury voluntary non-suit or dismissal - drop the case Motion for Compulsory Non-Suit - decision made by the court that a case cannot proceed to trial mistrial - A trial declared invalid because of some error in the proceedings- injustice or overwhelming prejudice directed verdict - weight of evidence leads to only one conclusion trier of fact - the jury in a jury trial; the judge when there is not a jury trial-- sees material evidence, hears testimony of witnesses and decides outcome based on facts

matters of law - issues not of fact, but of law. Decided by a judge Judgement non obstante veredicto - A judgement notwithstanding the jury's verdict. Asking the court to disregard the jury's verdict. remittitur - The reduction by a judge of the damages awarded by a jury. very common article 1 - legislative branch (congress- house and senate) article 2 - executive branch/president- execute legislation, command armed forces and make treaties article 3 - judicial branch- supreme court and subsidiary courts power marbury v madison - This case establishes the Supreme Court's power of Judicial Review- power to declare statute or governmental action unconstitutional and void powers shared w the states - power to tax, spend article VI (6) - federal supremacy is on this article article 1, section 8 - lists issues on which congress may pass statutes rational basis test (minimal scrutiny) - if law has rational basis, it will stand intermediate scrutiny - Law must substantially relate to important governmental objectives to stand strict scrutiny - law presumed invalid if, on its face, it is based on race, ethnicity and religion commerce clause - in article 1, section 8- INTERstate commerce but intra when it affects inter first amendment - Guarantees freedom of religion, speech, press, assembly, and petition to individuals and corporations-- protection has never been afforded to certain classes of speech like false, lewd, profane, etc commercial speech - speech proposing a commercial transaction. 1st amend protects if it seeks to implement a substantial govt interest and directly advances the interest and is the least restrictive method of achieving the interest 5th amendment - prohibits federal govt from depriving any person of life liberty or property without due process of law-- due process clause. applied to states through 14th amend by process of incorporation due process clause - interpreted liberally to be a guarantee of protection from unreasonable procedures/laws and government action takings clause - depriving a person of property- govt must pay property owner just compensation in exchange for taking property by eminent domain-- public use purpose is required the constitution establishes a tripartite govt - true

the fed govt has exclusive power over matters of war and taxation - false- both fed and state govt can tax States possess exclusive power to enact laws to protect welfare, health, and safety. - true the 5th amendment prohibits depriving any person of life liberty or happiness - false- not happiness, due process federal supremacy means that the us constitution is the supreme law of the land - true the fed govt may not interfere with interstate commerce - false the fed govt may not restrict individual or commercial speech - false constitutional limitations on governmental power includes the 5th amendment - true the takings clause means that the fed govt cannot take away on individuals freedom - false- cant take property without compensation Courts apply a means-ends test to review an allegedly unconstitutional statute. Which level of scrutiny applies to a statute that gives benefits to people based on their religion? a. Minimal scrutiny b. Intermediate scrutiny c. Strict scrutiny - c Substantive due process refers to a prohibition against: a. Unreasonable procedures b. Unreasonable laws c. Unreasonable (unfair) results - b uniform codes - when traveling, you dont have to worry about what is and isnt legal across state borders-- commercial code agrees to make business easier (49/50 states) evidentiary questions - questions that depend on the evidence you can prove (batson case) public policy - protects from something that will break families or hurt people maxims - prinicple of low universally admitted as being just with reason emolument clause - restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states- cant receive if in office obligation to prove - person committed of a crime doesnt have to speak-- prosecutor has obligation to prove in criminal cases and plaintiff has obligation in civil cases

federal preemption - article 1, section 8--right of federal government to regulate matters within its power to the exclusion of regulation by the states 14th amendment - in place after the civil war-- equal protection clause 2nd amendment - A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed....