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Definition
•Prohibits or requires certain conduct of all people.
•Enforced by prosecution by a government entity.
•The burden of proof is beyond reasonable doubt.
•Defendant can be imprisoned, sentenced to probation, and/or fined |
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Definition
•Civil law imposes duties on all people.
•Enforced by injured plaintiff.
•Burden of proof on preponderance of the evidence.
•Defendant can be required to pay for the injury caused |
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Definition
•Individuals agree on a contract thereby voluntarily assuming duties under the agreement.
•Enforced by suit by party to the contract
•Burden of proof on preponderance of the evidence
•Defendant can be ordered to perform the contract or pay for the injury caused |
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Definition
Imposed by law and/or society (Involuntary)
•Civil wrongs, harm to an individual
•Individual seeks remedies
*Can fall under criminal law* |
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Definition
Imposed by law and/or society (Involuntary)
•Societal wrongs, harm to the society
•Society seeks sanctions (fine and/or imprisonment)
*Can fall under tort law* |
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Definition
Assumed by the individual (Voluntary)
•Individual seeks remedies |
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Term
| Legal Terminology Vs. Everyday Speech |
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Definition
•Legal terms may appear to be synonyms with everyday words, but they often are not.
•Legal terms may have more than one legal meaning
•Some legal terms have no relation to everyday language |
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Term
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Definition
Consists of the unwritten law of a country, based on custom, usage and judicial decisions
Power to "make law" by establishing and following precedent and providing a "common law" for other courts to follow |
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Definition
| A body of principles and regulations applied to commercial transactions and deriving from the established customs of merchants and traders rather than the jurisprudence of a particular nation or state. |
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Definition
The fundamental law of a nation
May be written or unwritten
Allocates the power of government
Sets limits on those powers
Congress - Power of the purse
Executive Branch - Power of the sword
Judicial Branch - Interprets the meaning of the constitution |
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Definition
Formal agreements between two or more nations
Not based on the Constitution
Bilateral Treaty = 2 nations
Multilateral = more than 2
Universal = recognized by almost all nations |
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Definition
Acts of administrative agencies
Control of domestic conduct
Subject to limits imposed by the Constitution |
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Definition
Laws passed by municipal bodies
Designed to control purely local problems
Subject to any limits imposed by statutes or by the Constitution |
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| Administrative Regulations |
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Definition
Acts of administrative agonies
Control of specific areas of conduct
Subject to any limits imposed by statutes or by the Constitution
Example: Federal Trade Commission (FTC) on the federal level & an insurance commission on the state level |
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Definition
| Precedents, established interpretations of areas of law in which the courts define what the law is |
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Definition
The 2 different authorities that our legal system is divided into.
Examples:
Treaties = F, Ordinances = S, Constitution = F&S |
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Definition
Common = "make law" by interpreting statues or applying precedents (unwritten)
Statutory = legislative enactments, the statutes passed by legislative bodies of the state (written)
*Statutory Law overrides Common Law* |
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Definition
Civil = private law wherein one person sues another
Criminal = public law in which a government entity files charges against a person
*A person CAN be charged twice through criminal action AND civil action and it will not be considered double jeopardy because 2 diff theories of action exist* |
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Term
| Substantive vs. Procedural Law |
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Definition
Substantive = rights and duties given or imposed by the legal system
Procedural = devoted to how those rights and duties are enforced |
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Term
| Legal vs. Equitable Remedies |
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Definition
Equity = body of rules applied to legal controversies when no adequate remedy at law exists.
An injunction is an equitable remedy, however, before US courts will issue an injunction there has to be proof to show that the remedy at law would be inadequate |
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Term
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Definition
Judge the ethics of a particular action by the consequences of that action
Determine the "rightness" or the "wrongness" of any action by determining a ratio of good to evil that an action will produce |
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Term
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Definition
Focus on the concept of duty rather than on any concepts of right and/or wrong
Rule based
A person acts ethically if that person if faithful to his or her duty, regardless of the consequences that follow from being faithful to that duty |
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Term
| Egoism, Utilitarianism, Feminism |
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Definition
All Consequential
Egoism = self-interest is the proper goal of all human action. Individual good will provide good for all society
Utilitarianism = the greatest good (or least harm) for the greatest number. Focuses on the interests of the society
Feminism = "ethics of caring" Focuses on individuals; sympathy, compassion, loyalty and friendship. Greatest good + social cooperation + unequal opportunity realization |
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Term
| Kant and the Categorical Imperative |
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Definition
There are universal moral principles that determine "rightness" or "wrongness", "ethical" or "unethical"
Perfect Duties = things a person MUST do
Imperfect Duties = things a person SHOULD do
Categorical Imperative = Each person should act in a manner that his or her actions could become the universal law |
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Term
| Rawls and the Veil of Ignorance |
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Definition
| Rules governing the society should be developed behind a "veil of ignorance" meaning no person would know their personal characteristics (no influences of demographics) |
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Term
| Relativism and The Golden Rule |
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Definition
Relativism = Ethical views may oppose each other and both may still be correct. Ethics and values change from one location to another but personal morals do not
The Golden Rule = "Do onto others as you would have others do onto you" |
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Term
| Ethical Decision Making Considerations |
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Definition
1. The obligations that arise from organizational relationships
2. The ideals involved in any decisions that are made
3. The effects or consequences of alternative actions |
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Term
| Ethical Decision Making Tests |
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Definition
Front Page = Comfortable seeing it on the front page of a newspaper
Other Side of the Fence = How would you feel on the other side?
What Would Your Mother Think = Would your mom be proud when she learns about it? |
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Term
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Definition
If business does not satisfy the demands of society, society will change the "rules of the game," and in so changing the rule, the permission that the business now has may well be revoked
If business does not meet the demands voluntarily, they will be met by regulation |
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Term
| Constituents of a Business |
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Definition
All of the following have duties and obligations to and from "The Business":
Employees (Including managers)
Owners and Creditors (stakeholders)
Customers
The Community |
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Term
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Definition
Article I
Senate and House of Representatives
Power to levy and collect taxes, pay debts, and pass all laws with respect to certain enumerated powers |
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Definition
Article II
Establishes offices of President (commander and chief of the armed forces) and Vice-President
President: Power to make treaties, nominate ambassadors, judges, and other officers of the US.
Senate must confirm all presidential appointments and ratify all treaties
VP: President of the Senate |
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Definition
Article III - Limits rather than expands judicial power
Federal judicial power lies in one Supreme Court and in such other inferior courts as Congress may create
Federal judges permitted to serve in office for life is behavior is "good" |
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Term
| Not Cases or Controversies |
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Definition
| Advisory opinions, Moot cases, Lack of standing, Political questions |
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Term
| Judicial Review and Marbury V. Madison |
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Definition
A court-created power
Gives the courts the power to examine the legislative and executive branches to decide whether those actions conform to the constitution.
If unconstitutional, they are unenforceable. |
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Term
| Subject Matter Jurisdiction |
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Definition
The power of the court to hear certain kinds of legal questions.
Includes all cases in law and equity arising under the constitution, the statutes of the US and all treaties
It's extensive |
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Term
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Definition
The authority of the court over the specific person or corporation that can properly be brought within the control of the court
(affects the person) |
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Term
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Definition
| Court has the authority over property or status of the defendant that is located within the control of the court (affects the property or status) |
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Term
| Quasi in Rem Jurisdiction |
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Definition
Authority obtained through property under the control of the state. Settles issues of ownership, possession, or use of personal disputes unrelated to the property
(affects the rights of people to property) |
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Term
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Definition
"neighborhood"
Legal sense: the proper geographical area or district where a suit can be brought.
In state practice, if the plaintiff and defendant are residents of the same state, the in personal jurisdiction exists in that state's courts.
The proper venue could be where the incident happened or the resident county. More than one court may have proper venue.
The laws of each state spell out which courts have venue. |
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Term
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Definition
the selection of which jurisdiction's laws should be applied to a particular incident
What laws should govern the subject before the court
also called "conflict of laws" |
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Term
| Federal Court Jurisdiction |
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Definition
Federal questions, federal crimes, admiralty law, antitrust law, bankruptcy law, copyrights, patents, suits against the US, trademarks
Concurrent: Diversity of citizenship cases |
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Term
| SIX Steps in a Civil Lawsuit |
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Definition
1. Pleadings - Docs identifying parties, the claim
2. Service - Defendant is notified, delivering a summons
3. Discovery - Both sides gather facts/prepare for trial. Evidence, witnesses, records etc.
4. Pretrial Motions - File written motions requesting court to make procedural decisions
5. Trial - court hears evidence, decides fact and law
6. Enforcing the Judgement - collecting the money after winning |
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Term
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Definition
| Writing of a witness's sworn testimony taken outside a court, swearing that it is truthful |
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Term
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Definition
Written questions from one side to the other.
Produce written record of answers to questions.
Answer is made under oath, but the respondent has time to contemplate and carefully phrase answers
Not obtained from 3rd party witnesses |
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Term
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Definition
A question asked by one party to which the answer is either yes or no.
If recipient fails to answer within time limit, the matter is deemed admitted. |
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Term
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Definition
| An order to appear with records or evidence at a trial |
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Term
| Motion for a Summary Judgement |
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Definition
| A request to the judge asking him or her to declare that side a "winner" because there are no material issues of fact |
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Term
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Definition
| Examination of potential jurors to determine their competence to serve on the jury |
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Term
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Definition
A technique to remove a prospective juror. Limited amount of challenges determined by judge prior to selection process
No reason needed from attorney as to why they are dismissed - bias
Federal court = 3 peremptory challenges |
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Term
| Alternative Dispute Resolutions - Why |
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Definition
1. The burden of the court is reduced
2. An injured party with a legitimate claim is likely to be compensated sooner - Time-value of money
3. Businesses are less likely to settle found less claims merely for the sake of expediency and/or because the settlement is less expensive than the expense of the trial
4. ADR is less adversarial, allowing parties to reach a more amicable resolution. For future harmony |
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Term
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Definition
| The parties talk to each other and resolve their dispute. |
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Term
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Definition
| The parties use an impartial third party mediator to help them communicate with each other and resolve their dispute |
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Term
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Definition
| The parties present their evidence to an impartial third party (arbitrator) who makes a decision called an award. Before the arbitration begins, the parties decide if the arbitration will be binding or advisory on them |
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Term
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Definition
| Best Alternative to a Negotiated Agreement |
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Term
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Definition
Article I, Section 8, Clause 3
Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Grants Congress vast power to regulate the activities of businesses
Takes a large amount of power away from individual states to do the same
Bans individual states from regulating to protect purely local economic interests at the expense of national economic interests
Clause 1 gives Congress the power to levy taxes
Clause 18 allows Fed Gov. to do whatever is "necessary and proper" in order to effectively implement its regulations of commerce. |
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Term
| Exclusive and Concurrent Power |
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Definition
Concurrent: The ability to tax
The ability to make roads
The ability to create courts or houses of Law |
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Term
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Definition
| 14th Amendment - "nor shall any State...deny to any person within its jurisdiction the equal protection of the laws." |
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Term
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Definition
Gov't can classify if the statuary scheme is rationally related to a legitimate state interest.
Lowest level of scrutiny a court will place on gov't action. |
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Term
| Strict Scrutiny: The "Compelling State Interest" Test |
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Definition
| Test to protect under discrimination against racial or ethnic groups |
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Term
| An Intermediate Level: The Substantially Important State Interest Test |
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Definition
| Test for gender-based laws |
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Term
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Definition
4th & 5th Amendment protecting against deprivations of "life, liberty and property without due process of law"
Procedural: Hearing/Right to trial
Substantive: Individuals are protected by the constitution when taking certain actions that the government would prefer that they do not take.
A regulation is invalid if it fails to advance a legitimate gov't interest or if it constitutes an unreasonable means of advancing a legitimate gov't interest |
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Definition
| 5th Amendment "private property shall not be taken for public use, without just compensation" |
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Term
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Definition
Protects individual freedom of speech - a fundamental right, not an absolute right
The speech cannot be illegal or misleading
The regulation must be based on a legitimate governmental interest
It must directly advance this interest
It must be narrowly tailored, using the least restrictive means available to effectively meet the governmental interest |
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Term
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Definition
Slander (spoken), Libel (written)
Statements that harm a person's reputation
Protection: Truth, Absolute privilege (legal or congressional proceeding), Conditional privilege |
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Term
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Definition
| The misrepresentation of a material fact made with the intent to deceive |
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Definition
Unwarranted intrusions on the privacy of another
Protection: Privilege, Consent |
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Term
| Misappropriation of Trade Secrets |
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Definition
| Taking secret business data for unauthorized use |
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Term
| Defenses Against Intentional Torts |
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Definition
| Consent, Privilege, Necessity and Truth |
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Term
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Definition
| Duty, Breach of Duty, Causation, Harm |
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Term
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Definition
"The thing speaks for itself"
1. This occurrence would ordinarily not happen in the absence of someone's negligence
2. The occurrence must be caused by a device within the exclusive control of the defendants
3. The plaintiff in no way contributed to his or her own injury |
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Term
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Definition
inherent negligence
negligence without a need for further proof |
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