Business Law Flashcards
Law definition
Body of rules of conduct put in by controlling authority that has binding legal force
Ethics definition
Principles governing what constitutes right and wrong behavior
Stare Decisis
“Stand on decided cases”
Judge-made law
Each decision and interpretation creates precedent
Makes changing the law very slow
What if there is no precedent?
Courts often look for guidance from persuasive authorities
How precedent goes overturned?
Precedent is clearly wrong/outdated.
Legal Reasoning (IRAC/CRAC)
-Issue
-Rule
-Application/Analysis
-Conclusion
Criminal Law Definition
Concerned with wrong committed against the public as a whole
Prosecuted by public officials (district attorney)
Civil Law Definition
Rights and duties that exist between persons and between persons and their governments as well as the relief available when a person’s rights are violated
*Typically – private party sues another
private party who has failed to comply with some duty
Constitution established the Federal Form of Government:
Shared power between national and state governments
10th Amendment
Reserves unto the states all powers not specifically delegated to the Federal Government
Police Powers
Regulate private activities to promote health, safety,
Full Faith and Credit Clause
-Applies to only civil matters
-Rights established under deeds, wills, contracts, and other similar instruments in one state will still be honored in other state
-Ensures any judicial decision with respect to such property rights shall be honored and enforced in all states
Commerce Clause
Article 1 Section 8
Most important clause to Business
Gives Fed Govt. the Exclusive Right to Regulate Interstate Commerce
Symbolic Speech
Projected subject to reasonable restrictions
Content-Neutral Laws
Laws that regulate time, manner, and place, but not content of speech, receive less scrutiny than do laws that restrict consent of expression
Compelling government interest test
Govt. interest is balanced against individuals rights to free expression
Establishment Clause
Prohibits govt from establishing a state-sponsored religion or pass laws based on religious
Free Exercise Clause
Guarantees people can hold any religious beliefs they want, restricts only the actions of the govt
4th Amendment
Unlawful search and seizure (probable cause)
5th Amendment
Plead the 5th, self-incrimination, applies to only natural person, not corporations or partnerships BUT does apply to sole proprietors/practitioners
Important components of BPM
process modeling and business activity monitoring (BAM)
Porters Competitive Forces Model
Best known framework for analyzing competitiveness
Judicial Review
Process for making a determination of whether the laws/actions of the other 2 branches are constitutional
Marbury vs. Madison 1803
Jurisdiction in personam vs. in rem
In personam- personal jurisdiction – jurisdiction over a person or business that resides/does business in a certain geographic area
In rem - jurisdiction over the thing- property that is located within a court’s boundaries
Long-arm statutes
a court can exercise personal
jurisdiction over certain out-of-state defendants based on
activities that took place within the state
Corporation definition
Normally subject to personal jurisdiction in the state
- In which is incorporated
- has its principal office
- is doing business
General vs. Limited Jurisdiction
General - unlimited (state trial, federal district courts)
Limited - (probate court, juvenile court, bankruptcy court)
Subject Matter Jurisdiction can be limited by:
- Subject of lawsuit
- Sum/amount in controversy
- Whether case is felony/misdemeanor
- Whether proceeding is a trial or appeal
Original vs Appellate Court
Courts having original jurisdiction (trial courts/federal district courts), where lawsuits begin, trials, evidence
Appellate act as reviewing courts (appeal from an order or judgement of a trial or lower court)
Jurisdiction is limited to 2 situations:
Federal question is involved or where there is diversity of citizenship
Concurrent vs Exclusive Jurisdiction
Concurrent - when both federal and state courts have power to hear a case
Exclusive - when cases can be tried only in federal courts or only in state court
Sliding Scale Standard
When the defendant conducts substantial business over the
internet (such as contracts and sales), jurisdiction is proper
Venue (Civil vs Criminal)
Most appropriate location for trial
(Civil - typically where defendant resides/does business)
(Criminal- normally where crime occurred)
Standing to Sue
Sufficient stake in a matter to justify seeking relief through the court system
(A legally protected interest at stake in the litigation)
3 Elements of Standing (to sue)
Harm -
Causation -
Remedy -
Advantages over Litigation:
Flexibility
Privacy
Can be cost/time effective
3 main types of Alternative Dispute Resolution (ADR)
Negotiation
Mediation
Arbitration
Problem/Issue of Arbitrability
When one party files a lawsuit to compel arbitration, it is up to the court to resolve issue of arbitrability
*Court must decide whether matter is one that must be resolved through arbitration
Forum-Selection & Choice-of-Law Clauses
Designate the jurisdiction (court or country) where any dispute
arising under the contract will be litigated and which nation’s laws apply
* Not just international – we see this a lot in contracts here! Ex-prenuptial
agreement
Arbitration Clauses often included in int’l contracts
Trials require due process, which means
which requires adequate notice and a fair and impartial hearing.
*Rules are in place to provide/ensure due process
*For example, all civil trials in federal court are governed by the Federal Rules of Civil
Procedure.
3 stages of Litigation
PreTrial, Trial, Post Trial
PreTrial Procedures
Consulting an Attorney
*Pleadings – Complaint, Answer, etc.
*Discovery
*Mediation
*Pre-Trial Conference (civil and criminal)
*Jury Selection (not applicable to bench
trials)
3 types of Fees
Fixed, Hourly, Contingent
(No such thing as a non-refundable retainer)
4 Pleadings in order
Complaint (Plaintiff to Defendant)
Answer (Defendant to Plaintiff)
Counter-Claim (Defendant to Plaintiff)
Reply (Plaintiff to Defendant)
Default Judgements
Occurs when party is served in a timely manner and served party does not respond in timely manner
Filing fee associated with the motion
Gives the moving party the relief it requested - usually hearing required before order is entered
Motion to Dismiss
Before answer filed for certain grounds
-Also if case resolved or Plaintiff decides not to proceed with
litigation
Motion for Judgement on the Pleadings
Decide solely on pleadings, no trial – only if no dispute over
facts and only issue is a question of law
Motion for Summary Judgement (SMJ)
No trial, no facts in dispute, only issue is a question of law –
can introduce (admissible) affidavits and evidence
Discovery
Process by which parties obtain information from the opposing party prior to trial.
** Each party must answer all relevant
questions the other party asks.**
Purposes of Discovery
Prepare for trial
*No “surprises” at trial
*Encourage parties to settle before trial
*95% of all cases settle before trial
Common types of Discovery
Depositions
*Interrogatories
*Requests for Documents, Objects and
Inspections
*Requests for Examination
*Requests for Admission
Pre Trial Conference
After discovery meeting between attorneys and judge
*Explore additional possibilities of settlement
*Identify “issues in dispute” for jury to consider
*Judge issues order with deadlines, trial date, etc
Jury Selection
Seventh Amendment Right to a Jury Trial (may be waived if both parties agree)
*Voir Dire - is a juror or witness “fit”
*Jurors may be dismissed for no reason
(peremptory strikes) or for cause (bias)
* BUT – you cannot exclude jurors on basis of race, gender, etc. Batson v. Kentucky (1986)
Order of Events at Trial
- Opening Statements
- Introduction of Evidence through witnesses
- Motions
- Closing Arguments
- Jury Instructions and Verdict
Post-Trial
Post-Judgment Motions / Appeal
*In a Criminal Trial only the Δ may appeal
*In a Civil Trial either “loser” (π or Δ) may appeal
*The “loser” has a time limit to file an appeal
*The appeal considers only the “record” of the
trial – no new evidence or arguments
