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Bus Law
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129
Accounting
Pre-School
01/28/2012

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Term
Tort damages
Definition
monetary damages that compensate the injured party
Term
Law
Definition
Rules that regulate conduct or individuals, businesses, and other organizations within society.

Intended to protect persons and their property from unwanted interference from others. The law forbids person from engaging in certain undesirable activities.
Term
Definition of law
Definition
Body of rules of action prescribed by the controlling authority and having binding legal force
Term
Functions of Law
Definition
Keeping the peace
Shaping moral standards
Promoting social justice
Maintaining the status quo
Facilitating orderly change
Facilitating planning
Providing a basis for compromise
Maximizing individual freedom
Term
Facilitating Planning
Definition
Commercial laws can allow businesses to plan activities, allocate resources and assess their risks
Term
Maximizing Individual Freedom
Definition
Freedom of speech, religion and association granted by the 1st Amendment
Term
Jurisprudence
Definition
Philosophy or science of the law
Term
Qualities of Law
Definition
Flexibility & Fairness
Term
Natural Law
(Schools of Jurisprudential Thought)
Definition
Law is based on what is correct
Law should be based on morality and ethics
Term
Historical School
(Schools of Jurisprudential Thought)
Definition
Law is an aggregate of social traditions and customs
Term
Analytical School
Definition
Law is shaped by logic
Term
Sociological School
(Schools of Jurisprudential Thought)
Definition
Law is a means of achieving and advancing certain sociological goals
Term
Command school
(Schools of Jurisprudential Thought)
Definition
Law is a set of rules developed, communicated, and enforced by the ruling party.
Term
Critical Legal Studies School
(Schools of Jurisprudential Thought)
Definition
Views legal rules as unnecessary, with legal disputes to be solved by applying arbitrary rules based on fairness
Term
Law and Economics School
(Schools of Jurisprudential Thought)
Definition
Promoting market efficiency as the central concern of legal decision making
Term
History of American Law
Definition
English system of law
Became the foundation from which American judges developed common law
Term
English Common Law
Definition
based on precedent
developed by judges who issues their opinions when deciding cases
Term
Law Courts
(English Common Law)
Definition
Granted only monetary damages
Uniform system of courts
Term
Courts of Chancery (equity courts)
(English Common Law)
Definition
Remedies shaped to fit each situation
Term
Merchant Courts
(English Common Law)
Definition
Solved commercial disputes based on trade practices
Term
Civil Law System
Definition
Civil Code and parliamentary statutes (these expand and interpret Civil Code)
are the sole sources of law
Adjudication of a case is simply the application of the code+statutes to a particular set of facts
+In some civil law countries, court decisions do not have the force of law
Term
Adoption of English Common Law in America
Definition
Law, Equity, and Merchant courts merged
Most allow law and equitable orders/remedies
Term
Constitution
(Sources of Law in the US)
Definition
Supreme law of the land
Enumerates federal powers and reserves all other powers to the states
Term
Treaties
(Sources of Law in the US)
Definition
President with advice and consent of the Senate may enter into treaties with foreign governments
Congress passes statutes to fulfill treaty requirements
Term
Codified Law
Definition
Statues (Congress: federal statutes, state: state) and Ordinances (local govt)
Term
Executive Orders
Definition
Issued by president and state governors
Power derived from express delegation from legislative branch or implied from constitutional powers
Term
Regulations and Orders of Administrative Agencies
Definition
Empowered by leg + exec branches of govt to:
-adopt rules and regulations
-enforce statutes
-hear & decide disputes

Many regulate business (like SEC)
Term
Judicial Decisions
Definition
Courts decide controversies
Judicial decisions state the rationale used by the court
Term
Stare Decisis
Definition
Past court decisions become precedent for deciding future cases
Lower courts follow the precedent established by higher courts
All must follow Supreme Court precedents
Courts in one jurisdiction don't have to follow another's precedents
Term
Benefits/purpose of Stare Decisis
Definition
Uniformity
Efficiency
Predictability
Flexibility (may depart from precedent when warranted)
Term
Priority of Law in the US
Definition
US Constitution and treaties > all other laws
Federal statutes > regulations
Federal law > state/local law
State constitutions > all other state law
State statutes > regulations
State law > local law
Term
State Court Systems
Definition
Supreme Court
Intermediate Appellate Courts
Limited- and General- jurisdiction trial courts
Term
Limited-jurisdiction trial courts
(State Court Systems)
Definition
Hear matters of specialized or limited nature
(Ex: traffic, juvenile, probate, family law, misdemeanor, small claims)
Term
General-jurisdiction trial courts
(State Court Systems)
Definition
Hear everything not within limited-jurisdiction
Record and store testimony and evidence
Term
Intermediate Appelate Courts
(State Court Systems)
Definition
Hear appeals from trial courts
Review trial court record for grounds for reversal
No new testimony or evidence
Term
Highest State Court
(State Court Systems)
Definition
Hears appeal from intermediate state courts AND certain trial courts
NO NEW TESTIMONY/EVIDENCE
Decisions are final unless Supreme Court appealable
Term
Federal Court System
Definition
US Supreme Court
US Courts of Appeals
Special Federal Courts-US District Courts
Term
Special Federal Courts
(Federal Court System)
Definition
Hear matters of specialized or limited jurisdiction
-Tax Court
-Court of Federal Claims
-Court of International Trade
-Bankruptcy Court
-Court of Appeals for Armed Services
-" Veterans Claims
Term
US District Courts
(Federal Court System)
Definition
General Jurisdiction
-impanel juries
-receive evidence
-hear testimony
-decide cases
Most federal cases originate in federal district court
At least one district court in each state
Lifetime appointed judges
Term
US Court of Appeals
(Federal Court System)
Definition
Intermediate Appellate Courts
Hear appeals from the district courts located in their circuit
13 circuits
Lifetime appointments
3 judge panel or en banc (everybody)
Review the record of lower courts or admin agencies
determine if any errors make grounds for reversal/mod of court decision
Term
US Supreme Court
(Federal Court System)
Definition
Hears appeals from:
-federal circuit courts of appeals
-federal district courts under certain circumstances
-special federal courts
-highest state courts
No new evidence/testimony
9 judges, lifetime appntmnts
Lower court record reviewed for reversal/mod
100 cases each year
Unanimous, majority, plurality, or tie decision
Justices may concur or dissent
Decision is final
Term
Petition for Certiori
(Federal Court System)
Definition
Petition asking Supreme Court to hear case
Term
Writ of Certiorai
(Federal Court System)
Definition
Official notice Supreme Court will review a case
Term
Federal Court System II Ch2 Slide18!
Definition
US Supreme Court
/\
US Courts of Appeals
Federal Admin Agencies
US District Courts /\ US Bankruptcy Courts
US Tax Court

US Courts of Appeals for the Federal Circuit
US Claims Court
Court of Internatl Trade
Patent and trademark office
Term
Jurisdiction of Federal Courts
Definition
Federal Questions
-US Constitution
-Treaties
-Federal Statutes/Regulations
Diversity of Citizenship
-at least $75k in controversy
Term
Jurisdiction of State Courts
Definition
Cases that federal courts do not have jurisdiction to hear
Matters involving state law
-Real Estate
-Business Law
-Sales and Lease agreements
-Negotiable instruments
Term
Exclusive Federal Jurisdiction
Definition
Admiralty
Antitrust
Bankruptcy
Copyright
Rederal Crimes
Patents
Suits against the US
Specificed federal statutes
Term
Concurrent Jurisdiction
(Jurisdiction of Federal and State Courts)
Definition
Federal questions
Diversity of citizenship
Term
Personal Jurisdiction of Courts
Definition
Standing to sue: Plaintiff must have a stake in the outcome of case (can't sue for a friend)
Jurisdiction:
Venue
Term
In Personam Jurisdiction
Definition
personal jurisdiction exists over any plaintiff who files a lawsuit
personal jurisdiction exists over defendant who is within the boundaries of the state
Corporations are subject to personal jurisdiction in any state where it is incorporated/has office/does business
Term
Serving summons on a defendant
Definition
personal service
mailing
publication
Term
Long-Arm Statute
Definition
Allows state courts to obtain personal jurisdiction over persons/businesses in another state
-must have minimum contacts with state
Term
In Rem*
Quasi In Rem*
Definition
1 Jurisdiction over the property of the lawsuit within state borders
2 Attached property located in another state
Term
Venue
Definition
Court near location in which incident occured/parties reside
-Appropriate venue may be in question, but for crimes, the app venue is where the crime was committed
Change of venue may be motioned to avoid pre-trial publicity which can prejudice jurors
Term
Forum Selection Clause
Definition
Parties may specify in a contract what court to use
Term
Choice of Law Clause
Definition
Parties may specify which state/country's law will apply to the contract
Term
Pleadings
Definition
Complaint
Answer
Cross-Complaint
Reply
Term
Complaint and Summons
(Pretrial Litigation Process)
Definition
Plaintiff files:
-Lists parties
-Alleges facts and laws violated
-Prayer for relief
Court issues summons
-Directs defendant to appear and answer
Term
Answer
(Pretrial Litigation Process)
Definition
Defendant must file an answer to the summons
-Admit or deny allegations
-State affirmative defenses

*If all allegations admitted, judgment is entered against def
*If no answer filed, default judgment entered
Term
Cross-Complaint and Reply
(Pretrial Litigation Process)
Definition
Defendant may sue plaintiff for damages
Original plaintiff must file a reply and serve on defendant
Term
Intervention and Consolidation
(Pretrial Litigation Process)
Definition
1 Other parties with an interest in the lawsuit become parties to the lawsuit
Ex: bank with security interest in property that is subject of lawsuit

2 Several plaintiffs filing lawsuits based on the same situation will consolidate cases if no undue prejudice is imminent
Term
E-Filing
(Pretrial Litigation Process)
Definition
Virtual courthouse allows e-filing of documents
Term
Statute of Limitations
Definition
Establishes the period during which plaintiff must bring a lawsuit against a defendant
2 years for torts
Term
Discovery
(Pretrial Litigation Process)
Definition
Both parties discover facts of the case from the other party and witnesses prior to trial
Term
Purposes of Discovery
(Pretrial Litigation Process)
Definition
-Prevent surprise
-Allows both parties to prepare
-Preserves evidence
-Saves court time
-Promotes settlement of case
Term
Forms of Discovery
(Pretrial Litigation Process)
Definition
Depositions: oral testimony
Interrogatories
Production of documents
Physical and mental examination
Term
Depositions
(Pretrial Litigation Process)
Definition
By parties or witnesses
Under oath
Parties must give depositions
Witnesses may be subpoenaed
Evidence may be preserved by court reporter or video tape
May be used to impeach testimony at trial
Term
Interrogatories
Definition
Written questions submitted by one party to the other
Must be answered within a set time period
Answers affirmed under oath
Term
Production of Documents
Definition
Documents that parties request the other side to produce / make available for review
EG company records, correspondence, memoranda
discoverable if may lead to admissable evidence
Term
Examinations
Definition
If the physical or mental condition of a party is in question, an examination by an expert may be required
Term
Dismissals and Pretrial Judgments
(Pretrial Litigation Process)
Definition
Pretrial Motions
Motion for Judgment on the Pleadings
Motion for Summary Judgment
Term
Motion for Summary Judgment
(Dismissals and Pretrial Judgments)
Definition
Asserts there are no factual disputes to be decided by the jury
judge can apply the proper law to these facts and decide the case w/o a jury
Motion is supported by affidavits, documents, and deposition
Term
Motion for Judgment on the Pleadings*
(Dismissals and Pretrial Judgments)
Definition
Even if all facts presented in pleadings are true, the party making the motion would win the lawsuit when the proper law is applied to these facts
Term
Pretrial Motion
(Dismissals and Pretrial Judgments)
Definition
Motion a party can make to try to dispose all or part of a lawsuit prior to trial
-Motion for judgment on the pleadings
-Motion for summary judgment
Term
Settlement Conference
Definition
Federal court rules and most state rules allow for this
Occurs in judge's chambers
**At least 95% of all cases are settled before trial**
Term
Cost Benefit Analysis of a Lawsuit
Definition
Consider:
-Probability of winning or losing. Never certain.
-Amount of money to be won or lost
-Lawyers' fees and other costs of litigation
-Loss of time by managers and other personnel
-Effect on relationships and reputation
-Aggravation, psychological costs
Term
Trial
Definition
7th Amendment guarantees the right to a jury trial in cases in federal court
Most state constitutions contain a similar guarantee for state court actions
Term
Phases of Trial
Definition
Jury Selection
Opening Statements
Plaintiff's Case
Defendant's Case
Rebuttal and Rejoinder
Closing Arguments
Jury Instructions
Jury Deliberation
Entry of Judgment
Term
Appeal
Civil vs Criminal
Definition
Civil: Either party can appeal, but only once a final judgment is entered
Criminal: only defendant can appeal
Term
Appeal
Definition
Made to the appropriate appellate court according to timetable set by procedural rules

Appellate court will reverse lower court for errors of law. Will reverse finding of fact only if it is unsupported by any evidence.**
Term
Alternative Dispute Resolution (ADR)
Definition
Methods of resolving disputes other than litigation, because lawsuits can be expensive and difficult
Term
Arbitration
(Alternative Dispute Resolution)
Definition
Common in commercial and labor disputes
Parties choose neutral third party to hear evidence and testimony and decide the case
Arbitrator makes a decision and enters an award
Can be binding or non-binding
Term
Key ADR Legislation (about arbitration)
Definition
Uniform Arbitration Act
-Adopted by half of the states
-Promotes the arbitration of disputes at the state level

Federal Arbitration Act
-Arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts.
Term
Mediation
Definition
Parties choose a neutral third party to assist them
Parties reach settlement
Mediator does not make judgment or issue award
Term
Conciliation
Definition
Parties use an interested third party to act as mediator
Term
Mini-trial
Definition
Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute
Term
Fact-finding
Definition
Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides
Term
How are judges selected in federal systems?
How are judges selected in state systems?
Definition
Term
US Criminal Law System
Definition
Defendant is innocent until proven guilty
The burden of proof rests on the government
Defendant must be proven guilty beyond reasonable doubt
Term
Penal Codes and Regulatory Statutes
Definition
Statutes: source of criminal law
Penal codes and regulatory statutes define in detail the activities that are considered crimes and the associated penalties
Term
Felonies
Definition
-most crimes against people are felonies
--also certain business related crimes
-punishable by imprisonment
-mandatory sentencing for some
-may be "mala in se" = inherently evil
Term
Misdemeanors
Definition
-mala prohibita: not inherently evil, but prohibited by society
ex: crimes against property
Punishable by fines and imprisonment up to one year
Term
Violations
Definition
Everything that's not a felony or a misdemeanor
Fines or maybe few days in jail
Term
Violations
Definition
Everything that's not a felony or a misdemeanor
Fines or maybe few days in jail
Term
Criminal Act
Definition
Requires criminal intent and action upon that intent
Actus reus: actual performance of the guilty act
Term
Criminal Intent (Mens Rea)
Definition
Specific: purposefully, intentionally or with knowledge commits a prohibited act
General: recklessness or lesser degree of intent
Non-intent: imposes criminal liability without a finding of mens rea
Term
Criminal Procedure
Definition
Arrest
Indictment or Information
Arraignment
Plea Bargaining
Criminal Trial
Term
Arraignment
Definition
--accused informed of all charges
--asked to enter guilty or not guilty plea
--Nolo contendere: plea which does not admit guilt but agrees to penalty and cannot be used as evidence of liability
Term
Indictment or Information
Definition
--serious crimes: indictment by grand jury
--lesser crimes: information by magistrate
Term
Plea Bargaining
Definition
--may plead to a lesser crime
--why? saves money and time, avoids risk of trial -> very common
Term
Criminal Trial
Definition
--verdict must be unanimous
--cannot be found guilty if there is reasonable doubt
--if jurors cannot agree, this results in a hung jury and the government may retry the case
Term
Corporate Criminal Liability
Definition
1 Corporations may be held criminally liable for actions of their officers, employees or agents

2 Corporate directors, officers, and employees are personally liable for the crimes they commit while acting on behalf of the corporation and may be criminally liable for the criminal activities of subordinates
Term
RICO
Definition
Makes it a federal crime to participate in the affairs of an enterprise through a pattern of racketeering activity
Term
Civil Lawsuit
Definition
Injured parties seek compensation for a wrong done to the party or party's property
Term
Intentional Torts
Definition
Include unauthorized touching, restraint or other contact
Violation of a person's reputation or privacy
Assault
Battery
False Imprisonment
Misappropriation of the Right to Publicity
Defamation of Character
Term
Assault
(intentional torts)
Definition
Threat of immediate harm or offensive contact or arousing reasonable apprehension of imminent harm
Term
Battery
(intentional torts)
Definition
Direct unauthorized and harmful/offensive contact with another person
Can accompany assault
Term
Misappropriation of the Right to Publicity
Definition
Attempt by another person to appropriate a living person's name or identity for commercial purposes
Term
Disparagement
(intentional torts)
Definition
Untrue statments made about products or reputation of a business
Term
Unintentional Torts
Definition
A person is liable for harm that is the foreseeable consequence of his actions
Term
Negligence
(Unintentional torts)
Definition
Omission to do something which a reasonable person would do
OR
doing something a reasonable person would not do
Term
Intentional Infliction of Emotional Distress
(intentional torts)
Definition
Defendant's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person
Term
Malicious prosecution
(intentional torts)
Definition
must be: Frivolous lawsuit maliciously brought
So the defendant sues the original plaintiff to recover damages for injuries
*difficult to prove
Term
Elements of Negligence
(unintentional torts)
Definition
The defendant owed a duty of care to the plaintiff
Defendant breached the duty of care
Plaintiff suffered injury
Defendant's negligent act caused the injury
Term
Duty of Care
Definition
obligation not to cause any unreasonable harm or risk of harm
Term
Breach of duty
Definition
Failure to act as a reasonable person would act
Ex: speeding, camper throwing a lit match on ground in forest
Term
Injury to Plaintiff
(elements of negligence)
Definition
Personal injury or damage to property
if no injury, can't recover damages, even if defendant acted recklessly
Term
Causation
(elements of negligence)
Definition
Causation in Fact (actual cause: "but for the defedant's negligent act, injury would not have occurred")
Proximate Cause (legal cause: defendant is liable only for foreseeable consequences)
Term
Professional Malpractice
Definition
Liability of a professional who breaches his or her duty of ordinary care/reasonable professional standard
Term
Negligence Per Se
Definition
Violation of a statue that proximately causes an injury
-Statute must have been enacted to prevent the type of injury suffered
Term
Res Ipsa Loquitur
Definition
"The thing speaks for itself"
Defendant had exclusive control of situation that caused plaintiff's injury
Injury would not have occurred but for someone's negligence
Term
Superseding or Intervening Event
(defenses against negligence)
Definition
An event for which the defendant is not responsible caused the injury
Ex: victim of car accident struck by lightning while waiting for ambulance
Term
Strict Liability
Definition
Liability without fault
A participant in a covered activity will be held liable for any injuries caused by the activity regardless of if the defendant was actually negligent or not
ex: storage of explosives, keeping wild animals as pets
Why? certain activities place the public at risk even if reasonable care is taken, so strict liability allows the public to have some means of compensation if such injury occurs
Term
Product Liability
Definition
Liability of manufacturers, sellers and others for the injuries caused by defective properties
Term
Negligence
(product liability)
Definition
Negligent product design, failure to assemble properly, failure to inspect, failure to warn
Term
Misrepresentation
(product liability)
Definition
Seller fraudulently conceals a defect or misrepresents quality
Term
Strict Liability in Product Liability
Definition
Injured person does not have to prove that the defendant breached a duty of care
-so a company is still liable even if all possible care was exercised
Term
Strict Liability Damages
Definition
Punitive damages are allowed if the defendant
1 Intentionally injured the plaintiff
OR
2 Acted with reckless disregard
Term
Comparative Negligence (pg 91)
Definition
Damages are apportioned according to fault
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