LAW1101 EXAM Study Guide PDF

Preview

Summary

LAW1101 EXAM STUDY GUIDE Chapter 1: The Legal Environment - - - 1 – Business Activities and the Legal Environment o Law – a body of enforceable rules governing relationships among individuals and between individuals and their society o Liability – state of being legally responsible for something 1 –...

Description

LAW1101 EXAM STUDY GUIDE Chapter 1: The Legal Environment -

-

-

1.1 – Business Activities and the Legal Environment o Law – a body of enforceable rules governing relationships among individuals and between individuals and their society o Liability – state of being legally responsible for something 1.2 – Sources of American Law o Primary sources of law – a document that establishes the law on a particular issue, such as constitution, statute, an administrative rule, or a court decision o Secondary source of law – a publication that summarizes or interprets the law, such as legal encyclopedia, a legal treatise, or an article in a law review o Constitutional Law – body of law derived from the U.S. Constitution  U.S. Constitution – the supreme law of the land in the U.S. o Statutory Law – body of law enacted by legislative bodies o Citation – a reference to a publication in which a legal authority or other source can be found o Ordinance – a regulation enacted by a city or country legislative body that becomes part of the state’s statutory law o Uniform Law – a model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute o Uniform Commercial Code (UCC) – facilitates commerce among states by providing a uniform, yet flexible, set of rules governing commercial transactions o Administrative Law – body of law created by administrative agencies in order to carry out their duties and responsibilities  area of public law that creates the most rules and decides the most controversies o Administrative Agency – federal, state, or local government created by the legislature to perform a specific function o Enabling Legislation – a statute enacted by Congress that authorizes the creation of an administrative agency and specifies name, composition, purpose, and powers of the agency being created o Adjudicate – “resolve judicially” – to render a judicial decision o Administrative Process – the procedure used by administrative agencies in administering the law o Rulemaking – formulating new regulations or amending an old one o Legislative rule – “substantive rule” – administrative agency rule that carries the same weight as a congressionally enacted statute o Interpretive Rule – nonbinding rule or policy statement issued by an administrative agency that explains how it interprets and intends to apply the statutes it enforces o Administrative Law Judge – 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 1.3 – Common Law Tradition o Case Law – rules of law announced in court decisions; case law interprets statutes, regulations, constitutional provisions, and other case law o Common Law – body of law developed from custom or judicial decisions in English or U.S. courts, not attributable to legislature o Precedent – court decision that furnishes an example or authority for deciding subsequence cases involving identical or similar facts

Stare Decisis – “to stand on decided cases” – common law doctrine under which judges are obligated to follow precedents established in prior decisions o Binding Authority – any source of law that a court must follow when deciding a case o Persuasive Authority – any legal authority of source of law that a court may look to for guidance but need not follow when making its decision; used when there is no precedent o Equity – a branch of law – founded on notions of justice and fair dealing – that seeks to supply a remedy when no adequate remedy at law is available o Remedy – relief given to an innocent party to enforce a right or compensate for violation of a right o Plaintiff – (those bringing lawsuits) – one who initiates a lawsuit o Defendant – (the person against whom a lawsuit is brought) – one against whom a lawsuit is brought or the accused person in a criminal proceeding o Jurisprudence –the science or philosophy of law o 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 o Legal Positivism – school of legal thought centered on the assumption that there is no law higher than the laws created by the national government o Historical School – school of legal thought that stresses the evolutionary nature of law and looks to doctrines that have withstood the passage of time for guidance in shaping present laws o Legal Realism – school of legal thought that holds that the law is only on factor to be considered when deciding cases and that social and economic circumstances should also be taken into account 1.4 – Classifications of Law o Substantive Law – law that defines, describes, regulates, and creates legal rights and obligations o Procedural Law – law that establishes the methods of enforcing rights established by substantive law o Cyberlaw – informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted over the internet o Civil Law – branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters o Criminal Law – branch of law that defines and punishes wrongful actions committed against the public  Crime – any act prohibited by the gov’t and made punishable through imprisonment or fines  Criminal guilt must be proved beyond a reasonable doubt o National Law – law that pertains to a particular nation o International Law – law that governs relations among nations o

-

Chapter 3: Courts and Alternative Dispute Resolution -

-

3.1 – The Judiciary’s Role in American Government o Judicial Review – the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch  Acts as a check on the other two branches of gov’t 3.2 – Basic Judicial Requirements o Jurisdiction – “the power to speak the law” – authority of a court to hear and decide a specific case  Rem jurisdiction – “jurisdiction over the thing”

Long Arm Statute – a state statute that permits a state to exercise jurisdiction over nonresident defendants  Under this authority, a court can exercise personal jurisdiction over certain out-ofstate defendants based on activities that took place within the state  Court must be convinced that he defendant had sufficient contacts, or minimum contacts, with the state to justify jurisdiction – defendant must have enough of a connection to the state for the judge to conclude that it is fair for the state to exercise power over the defendant o Probate Court – a state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person’s estate o Bankruptcy Court – a federal court of limited jurisdiction that handles only bankruptcy proceedings, governed by federal bankruptcy law o Original Jurisdiction – courts of the first instance, or trials courts in which lawsuits begin, trials take place, and evidence is presented  In Federal court system, trial courts are district courts o Appellate Jurisdiction – acts as reviewing courts; cases can be brought before appellate courts only on appeal from an order or judgment of a trial court or other lower court o Federal Question – a question that pertain to the U.S. Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case o Diversity of Citizenship – a basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a U.S. citizen and a citizen of a different country  Requires:  1. The plaintiff and defendant to be residents of different states  2. The dollar amount in controversy must exceed $75,000  Exists when a foreign country brings an action against citizens of U.S.  Exists when controversy is btw citizens of U.S. and citizen of foreign country o Concurrent Jurisdiction – jurisdiction that exists when two different courts have the power to hear a case o Exclusive Jurisdiction – jurisdiction that exist when a case can be heard only in a particular court or type of court  Federal courts have exclusive jurisdiction over federal criminal prosecutions and trademark and copyright cases o Venue – geographic district in which a legal action is tried and from which the jury is selected  deals with the location where a lawsuit should be brought o Standing to Sue – the legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit  To have standing, a party must have a legally protected and tangible interest at stake in the litigation  Requires that he controversy at issue be a justifiable controversy – a controversy that is real and substantial; must be satisfied before a court will hear a case 3.3 – The State and Federal Court Systems o State Court include:  1. Trial courts of limited jurisdiction  2. Trials courts of general jurisdiction  3. Appellate courts  4. State Supreme Court / State’s highest court o Trial courts – courts in which trials are held and testimonies are taken o Small claims courts – a special court in which parties can litigate small claims without an attorney o

-

Appellate or Reviewing Courts – generally do not conduct new trials; rather, an appellate court panel of three or more judges review the record of the case on appeal o Question of fact – deals with what really happened in regard to the dispute being tried; in a lawsuit, an issue that involves only disputed facts and not what the law is on a given point o Question of law – concerns the application or interpretation of the law; in a lawsuit, an issue involving the application or interpretation of a law  When a trial is conducted with a jury, the judge determines issues of law and the jury determines the question of fact o Federal Court System:  1. US District Courts (trial courts and general jurisdiction)  There is at least one federal district court in every state  2. U.S. Court of Appeals (intermediate court of appeals)  There are thirteen U.S. courts of appeals  3. U.S. Supreme Court  Highest level; consists of nine justices o Writ of certiorari – to bring a case to the supreme court, party must request that the court issue a writ of certiorari – a writ from a higher court asking a lower court for the record of a case o Rule of Four – rule of the U.S. Supreme Court under which the court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ 3.4 – Following a State Court Case o Litigation – process of working a lawsuit (resolving a dispute) through the court system o Pleadings – statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case  Pleadings in a lawsuit include: complaint and answer o 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  1. Facts necessary for the court to take jurisdiction  2. Brief summary of facts necessary to show plaintiff is entitled to remedy  3. Statement of remedy the plaintiff is seeking o Service of process – delivery of complaint and summons to a defendant; way of notifying the defendant about the lawsuit o Summons – a notice requiring the defendant to appear in court and answer the complaint o Default judgment – a judgment entered by a court against a defendant who has failed to appear in court on a certain date to answer or defend against plaintiff’s claim o Answer – procedurally, a defendant’s response to plaintiff’s complaint o Counterclaim – a claim made by defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff o Reply – procedurally, a plaintiff’s response to a defendant’s answer o Motion to Dismiss – requests the court to dismiss the case for stated reasons; 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 o Motion for Judgment on the Pleadings – 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 o Motion for Summary Judgment – motion requesting the court to enter a judgment without proceeding to trial o Discovery – a method by which the opposing parties obtain information from each other to prepare for trial o

-

 Includes production of documents, written interrogatories, and depositions Interrogatories – written questions for which written answers are prepared and then signed under oath o E-evidence – type of evidence that consists of computer-generated or electronically recorded information o Metadata – “data about data” – data that are automatically recorded by electronic device and provide information about who created a file and when, and who accessed, modified, or transmitted the file on their hard drives o Pre-trial discovery stage – procedural stage of a lawsuit after the pleadings but before the trial o Voir dire – important part of the jury selection process o Motion for a Directed Verdict – motion for the judge to take 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 his or her claim o Award – monetary compensation given to a party attend of trial or other proceeding o Motion for Judgment n.o.v. – motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury’s verdict against him or her was unreasonable and mistaken o Motion for new trial – motion asserting that trial was so fundamentally flawed that a new trial is necessary to prevent miscarriage of justice o Brief – written summary or statement prepared by one side in a lawsuit to explain its case to the judge 3.5 – Courts Online o Docket – list of cases entered on a court’s calendar and thus scheduled to be heard by the court o Number of state and federal courts now allow parties to file litigation-related documents with the courts via the Internet or other electronic means o Eventually, litigants may be able to use cyber courts, in which judicial proceedings take place only on the internet 3.6 – Alternative Dispute Resolution o ADR – the resolution of disputes in ways other than those involved in the traditional judicial process (such as negotiation, mediation, and arbitration) o Negotiation – simplest form of ADR – process in which parties attempt to settle their dispute informally, with or without attorneys to represent them o Mediation – method of settling disputes outside the courts by using services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiation a settlement o Arbitration – settling of dispute by submitting it to a disinterested third party (other than a court) who renders a decision o

-

-

Chapter 4: Tort Law -

4.1 – The Basis of Tort Law o Torts – (“wrong” in French) – a wrongful act (other than a breach of contract) that results in harm or injury to another and leads to civil liability o Purpose of tort law is to provide remedies for the invasion of various protected interests o Damages – a monetary award sought as a remedy for a breach of contract or a tortious action o Compensatory damages- a monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party

Special damages – in a tort case, an amount awarded to compensate the plaintiff for quantifiable monetary losses, such as medical expenses, property damage, and lost wages and benefits o General damages –an amount awarded to compensate individuals for nonmonetary aspects of the harm suffered, such as pain and suffering. Not available to companies o Punitive damages – monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future o Classification of Torts  Intentional – wrongful act knowingly committed  Unintentional - torts involving negligence o Defense – reasons why the plaintiff should not obtain damages; reason offered by defendant in an action or lawsuit as to why the plaintiff should not recover or establish what he or she seeks 4.2 – Intentional Torts Against Persons o Tortfeasor – one who commits a tort o Assault – any word or action intended to make another person fearful of immediate physical harm – a reasonably believable threat – any intentional and unexcused threat of immediate harmful or offensive contact – words or acts that create in another person a reasonable apprehension of harmful contact  Can be completed even if there is no actual contact with plaintiff o Battery – physical contact with another that is unexcused, harmful or offensive, and intentionally performed o Actionable – capable of serving as the basis for a lawsuit o Outrageous Conduct – repeated annoyances, coupled with threats are sufficient to support a claim; acts that cause indignity or annoyance are not enough o Limited by the first amendment – first amendment guarantees freedom of speech limits emotional distress claims o Defamation – involves wrongfully hurting a person’s good reputation; anything published or publicly spoken that causes injury to another’s good name, reputation or character  To establish defamation, plaintiff must prove:  1. Defendant made a false statement of fact  2. Statement was understood as being about the plaintiff and tended to harm the plaintiff’s reputation  3. Statement was published to at least one person other than the plaintiff  4. If the plaintiff is a public figure, he or she must prove actual malice o Libel – defamation in writing or another permanent form (e.g. digital recording)  Handwritten, typewritten, printed, pictorial or televised defamation  Damages for libel – designed to compensate plaintiff for nonspecific harms such as disgrace or dishonor in the eyes of community, humiliation, injured reputation, emotional distress  Plaintiff need not prove that she or he was actually harmed in any specific way as a result of libelous statement o Slander – defamation in oral form  Damages for slander – plaintiff must prove special damages to defendant’s liability; plaintiff must show that statement cause plaintiff to suffer actual economic or monetary losses o Defenses to defamation – truth is normally an absolute defense against a defamation charge; if the defendant can prove that his or her statements were true, no tort has been committed o Privilege – a special right, advantage, or immunity that enables a person or a class of persons to avoid liability for defamation o

-

Actual malice – the deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth; required to establish defamation against public figures o Invasion of privacy:  1. Intrusion into an individual’s affairs or seclusion – invading someone’s home or illegally searching someone’s briefcase  2. False light – publication of information that places a person in a false light; (e.g. writing a story about a person that attributes ideas and opinions not held by that person)  3. Public disclosure of private facts – when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing  4. Appropriation of identity – using a person’s name, picture, or other likeness for commercial purposes without permission o Appropriation – use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user o Fraudulent misrepresentation – intentional deceit for personal gain – any misrepresentation, either by misstatement or by omission of material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment o Puffery – salesperson’s exaggerated claims concerning quality of prope...