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Tyler K. > Business Law > Flashcards

Business Law Flashcards

1
Q

Law definition

A

Body of rules of conduct put in by controlling authority that has binding legal force

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2
Q

Ethics definition

A

Principles governing what constitutes right and wrong behavior

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3
Q

Stare Decisis

A

“Stand on decided cases”
Judge-made law
Each decision and interpretation creates precedent
Makes changing the law very slow

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4
Q

What if there is no precedent?

A

Courts often look for guidance from persuasive authorities

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5
Q

How precedent goes overturned?

A

Precedent is clearly wrong/outdated.

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6
Q

Legal Reasoning (IRAC/CRAC)

A

-Issue
-Rule
-Application/Analysis
-Conclusion

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7
Q

Criminal Law Definition

A

Concerned with wrong committed against the public as a whole
Prosecuted by public officials (district attorney)

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8
Q

Civil Law Definition

A

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

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9
Q

Constitution established the Federal Form of Government:

A

Shared power between national and state governments

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10
Q

10th Amendment

A

Reserves unto the states all powers not specifically delegated to the Federal Government

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11
Q

Police Powers

A

Regulate private activities to promote health, safety,

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12
Q

Full Faith and Credit Clause

A

-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

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13
Q

Commerce Clause

A

Article 1 Section 8
Most important clause to Business
Gives Fed Govt. the Exclusive Right to Regulate Interstate Commerce

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14
Q

Symbolic Speech

A

Projected subject to reasonable restrictions

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15
Q

Content-Neutral Laws

A

Laws that regulate time, manner, and place, but not content of speech, receive less scrutiny than do laws that restrict consent of expression

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16
Q

Compelling government interest test

A

Govt. interest is balanced against individuals rights to free expression

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17
Q

Establishment Clause

A

Prohibits govt from establishing a state-sponsored religion or pass laws based on religious

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18
Q

Free Exercise Clause

A

Guarantees people can hold any religious beliefs they want, restricts only the actions of the govt

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19
Q

4th Amendment

A

Unlawful search and seizure (probable cause)

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20
Q

5th Amendment

A

Plead the 5th, self-incrimination, applies to only natural person, not corporations or partnerships BUT does apply to sole proprietors/practitioners

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21
Q

Important components of BPM

A

process modeling and business activity monitoring (BAM)

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22
Q

Porters Competitive Forces Model

A

Best known framework for analyzing competitiveness

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23
Q

Judicial Review

A

Process for making a determination of whether the laws/actions of the other 2 branches are constitutional
Marbury vs. Madison 1803

24
Q

Jurisdiction in personam vs. in rem

A

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

25
Q

Long-arm statutes

A

a court can exercise personal
jurisdiction over certain out-of-state defendants based on
activities that took place within the state

26
Q

Corporation definition

A

Normally subject to personal jurisdiction in the state
- In which is incorporated
- has its principal office
- is doing business

27
Q

General vs. Limited Jurisdiction

A

General - unlimited (state trial, federal district courts)
Limited - (probate court, juvenile court, bankruptcy court)

28
Q

Subject Matter Jurisdiction can be limited by:

A
  • Subject of lawsuit
  • Sum/amount in controversy
  • Whether case is felony/misdemeanor
  • Whether proceeding is a trial or appeal
29
Q

Original vs Appellate Court

A

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)

30
Q

Jurisdiction is limited to 2 situations:

A

Federal question is involved or where there is diversity of citizenship

31
Q

Concurrent vs Exclusive Jurisdiction

A

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

32
Q

Sliding Scale Standard

A

When the defendant conducts substantial business over the
internet (such as contracts and sales), jurisdiction is proper

33
Q

Venue (Civil vs Criminal)

A

Most appropriate location for trial
(Civil - typically where defendant resides/does business)
(Criminal- normally where crime occurred)

34
Q

Standing to Sue

A

Sufficient stake in a matter to justify seeking relief through the court system
(A legally protected interest at stake in the litigation)

35
Q

3 Elements of Standing (to sue)

A

Harm -
Causation -
Remedy -

36
Q

Advantages over Litigation:

A

Flexibility
Privacy
Can be cost/time effective

37
Q

3 main types of Alternative Dispute Resolution (ADR)

A

Negotiation
Mediation
Arbitration

38
Q

Problem/Issue of Arbitrability

A

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

39
Q

Forum-Selection & Choice-of-Law Clauses

A

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

40
Q

Trials require due process, which means

A

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.

41
Q

3 stages of Litigation

A

PreTrial, Trial, Post Trial

42
Q

PreTrial Procedures

A

Consulting an Attorney
*Pleadings – Complaint, Answer, etc.
*Discovery
*Mediation
*Pre-Trial Conference (civil and criminal)
*Jury Selection (not applicable to bench
trials)

43
Q

3 types of Fees

A

Fixed, Hourly, Contingent
(No such thing as a non-refundable retainer)

44
Q

4 Pleadings in order

A

Complaint (Plaintiff to Defendant)
Answer (Defendant to Plaintiff)
Counter-Claim (Defendant to Plaintiff)
Reply (Plaintiff to Defendant)

45
Q

Default Judgements

A

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

46
Q

Motion to Dismiss

A

Before answer filed for certain grounds
-Also if case resolved or Plaintiff decides not to proceed with
litigation

47
Q

Motion for Judgement on the Pleadings

A

Decide solely on pleadings, no trial – only if no dispute over
facts and only issue is a question of law

48
Q

Motion for Summary Judgement (SMJ)

A

No trial, no facts in dispute, only issue is a question of law –
can introduce (admissible) affidavits and evidence

49
Q

Discovery

A

Process by which parties obtain information from the opposing party prior to trial.
** Each party must answer all relevant
questions the other party asks.**

50
Q

Purposes of Discovery

A

Prepare for trial
*No “surprises” at trial
*Encourage parties to settle before trial
*95% of all cases settle before trial

51
Q

Common types of Discovery

A

Depositions
*Interrogatories
*Requests for Documents, Objects and
Inspections
*Requests for Examination
*Requests for Admission

52
Q

Pre Trial Conference

A

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

53
Q

Jury Selection

A

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)

54
Q

Order of Events at Trial

A
  1. Opening Statements
  2. Introduction of Evidence through witnesses
  3. Motions
  4. Closing Arguments
  5. Jury Instructions and Verdict
55
Q

Post-Trial

A

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

Tyler K. (15 decks)

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