Exam 1 Flashcards
Public Law
Law that involves suits between private individual or groups and government (includes the government)
Statutory Law
the assortment of rules and regulations put forth by legislatures (the legislative actions are called statutes)
Case Law
the collection of legal decisions and interpretations made by judges (includes common law and cases interpreting statutes)
Golden Rule Test
- Do to others as you want them to gratify you
- Be considerate of others’ feelings as you want them to be considerate of yours
- Treat others as persons of rational dignity like you
- Extend brotherly or sisterly love to others, as you would want them to do for you
- Treat others according to moral insight, as you would have others treat you
- Do to others as God wants you to do to them
Universalization Test
what would the world be like with everyone doing what you’re considering doing?
- what would happen if our decision was copied by everyone else?
- if others followed your example, would it make the world a better place for me and those I love?
WH Process
W- Who: (stakeholders): customers, owners, management, employees, community, future generations
H- How (guidelines): public disclose, universalization, golden rule; principles for decision-making
Values
positive abstractions that capture our sense of what is good and desirable
Business Ethics
the use of ethics and ethical principles to solve business dilemmas
Shareholders Concept
people with shares in the company; customers, owners, management, employees, community, and future generations
Business Law and Business Ethics
legality is the baseline for all decisions; think of the law as the bare minimum of ethics; ethics guides the development of law
Social Responsibility of Business
- the expectations that a community places on the actions of forms inside that community’s borders
-if ethical lapses become visible and widely known, there is always the threat of legislature or regulatory intervention - standards vs. decisions
Civil Law
body of law that governs the rights and responsibilities either between persons or between persons and government (ex-contracts, torts, property)
Criminal Law
body of law that governs the rights and responsibilities an individual has with respect to the public as a whole (is a public law too)
- punishment; government brings action
Model Laws
also known as uniform laws; serve to standardize the otherwise different state laws (suggestion to make all things standard)
Precedent
a tool used by judges to make rulings on cases with the basis of key similarities to previous cases (citing other judges to justify current case)
Stare Decisis
“stand by the decision”; a principle stating that reliefs made in higher courts are binding pretender for lower courts (reasons: stability and predictability of the law)
Originalism
interpretation of text by the words or intentions of its authors
Legal Realism
economic, social, and political context of law impacts outcomes of decisions (factors other than law impacts decisions)
- legal decisions are really rationalizations of the decisions of judges on non-legal grounds
law is a prediction of what judges will do
-law is not about logic (more about experience)
Ethical Dilemma
a question about how one should behave that requires one to reflect on the advantages and disadvantages of the optional choices for various stakeholders (competing considerations that can make you face a difficult choice)
Public Disclosure Test
Would be willing for everyone to know what you are considering doing?
-make our actions visible rather than obscured
-imagine our actions are being broadcast on national television
In Personam (personal) Jurisdiction
the power to render a decision affecting the rights of the specific persons before the courts ( power over the people in the case)
Complaint
the pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court initiates a lawsuit
Long- arm Statute
enable to court to serve defendants outside the state
Subject- matter Jurisdiction
the power to hear certain kinds of cases
Federal Question Jurisdiction
majority of federal jurisdiction; question about a federal law
Diversity-of-citizenship Jurisdiction
everyone on both sides are from different states (complete diversity)
Venue
the most appropriate geographical location where a case should be heard (usually where the parties reside or where the case allegedly arose)
Standing (to sue)
-actual/imminent injury in fact
-injury traceable to actions of defendant
-injury redressed by favorable decision (the court can fix the injury)
Service of Process
procedure by which courts present the complaint and summons to the defendant (request a summons to serve)
Default Judgement
judgement entered against a party who failed to appear in court to defend against a claim bought by another party (often in favor of the plaintiff)
Answer
a defendant’s response to the plaintiff’s complaint, it denies, affirms, or claims no knowledge
Discovery
occurs after the pleadings (complaint, answer, counter claim, cross-claim, and response) have been filed
-exchange of relevant documents and evidence by the parties
Interrogatories
written questions that one party sends to the other to answer under oath
Request to Produce Documents
forces the other party to produce certain information unless it is privileged or irrelevant to the case
Deposition
attorneys examine a witness under oath, the parties may obtain testimony from a witness before trial through a deposition
Motion for Summary Judgment
judge finds no factual disputes (usually filed by defendant)
Voir Dire
jury selection process
-each party may strike a juror for cause
-each party may strike a juror with a peremptory challenge
Peremptory Challenge
removal of perspective juror without giving any reason; attorneys are allowed a limited number of such challenges
Directed Verdict
motion for judgement as a matter of law; even if all accepted evidence was true, there is no legal basis for a decision in favor of the plaintiff (occurs at trial)
Prejudicial Error
an error that affect the outcome of a case, must exist for an appeal to succeed
Writ of Certiorari
an order to the lower court rot sen the supreme court a record of the case (a petition filed by a party)
Mediation
-helps disputing parties preserve their professional relationships
-provides possibility of finding creative solutions to dispute
-offers participants a high level of autonomy
Arbitration
settling a dispute by agreeing to accept the decision of an impartial outsider (an arbitrator that usually has expertise in specific subject matter of the dispute)
-loss of civil rights and remedies availiable through litigation
-non-public nature of arbitration rather than a public trial
Binding Arbitration Clause
a provision in a contract mandating that all disputes arising under a contract must be settled by arbitration
Appellate Court
(how it is different than a trial court)
have appellate jurisdiction instead of original jurisdiction; judges review transcripts of trial court proceedings and occasionally consider additional oral and written arguments from both parties
Assault
placing another in immediate apprehension for his or her physical safety (apprehension means the expectation of being physically injured)
Defamation
intentional publication (communication to third part) of a false statement that is harmful to an individual’s reputation
Battery
an illegal toughing of another (illegal means the touching is done with out justification or consent)
Conditional Privilege
speech protected by the first amendment
even false statements made with conditional privilege do not result in liability unless made with actual malice
Actual Malice
speaker know it was false or had a reckless disregard for the truth
Public Figure Privilege
a special right, immunity, or permission given to people that allows them to make any statements about public figures, typically politicians and entertainers, without being held liable for defamation for any false statement made without malice
Trespass to Realty
occurs when a person intentionally
1. enters the land of another without permission
2. causes an object to be placed on the land of another without the landowner’s permission
3. stays on the land of another when the owner tells him to depart (defiant trespass)
4. refuses to remove something he placed on the property that the landowner asked him to remove
Private Nuisance
a situation when a person uses his/her property in an unreasonable manner that harms a neighbor’s use or enjoyment of his/her property
Conversion
a situation that occurs when a person permanently removes personal property from an owner’s possession and control (stealing)
Disparagement
a false statement of material fact resulting in damage to a business or product reputation
Intentional Interference with Contract
- A valid and enforceable contract between two parties;
- Defendant knew of the existence of the contract and its terms;
- Defendant intentionally undertook steps to cause one of the parties to breach the contract;
- Plaintiff injured as a result of the breach of contract
Unfair Competition
A tort against economic interests that occurs when the defendant unreasonably interferes with the plaintiff’s opportunity to earn a profit, not to make a profit myself, but solely to harm them
Fraudulent Misrepresenation
- The defendant knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions;
- The defendant intended to have another party rely on the misrepresentation;
- The plaintiff reasonably relied on the misrepresentation;
- The plaintiff suffered damages because of reliance on the misrepresentation
Negligence
the failure to exercise reasonable care to protect another’s person or property, causing an unreasonable risk of harm to others
Proximate Cause
legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability
Compensatory Damages
designed to compensate the victim for all harm caused by the defendant
Punitive Damages
imposed to punish defendant for extremely outrageous conduct and to deter the defendant and others from committing similar future offenses
Res Ipsa Loquitur
“the thing speaks for itself”
-the event was a kind that does not ordinarily occur in the absence of negligence
-other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated
-the indicated negligence is within the scope of the defendant’s duty to the plaintiff
Negligence Per Se
“negligence in or of itself”; applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs
Contributory Negligence
the defendant can avoid all liability by proving the plaintiff’s negligence contributed in some way to the accident in question
-harshness of the rule can be mitigated bt the last-clear-chance doctrine
Last-Clear-Chance Doctrine
the defendant had the last clear chance to avoid the accident but didn’t
Pure and Modified Comparative Negligence
Pure: reduce the plaintiff’s damages by the percentage of the plaintiff’s fault
Modified: defendant must be at least 50% at fault before the plaintiff can recover
Wells Fargo Example
stealing money, bad ethics
Assumption of the Risk
a defense to negligence whereby the defendant must prove that the plaintiff voluntarily assumed the ride of the actual harm the plaintiff incurred (express/implied assumption)
Strict Liability
“liability with fault”
1. involves risk of serous harm to people or property
2. it is so inherently dangerous that it cannot ever be safely undertaken
3. it is not usually performed in the immediate community
Real vs. Personal Property
Real Property: land and everything permanently attached to it
Personal Property: all property that is not land or not permanently affixed to land (both tangible and intangible)
Free Simple Absolute
right to possess for life and devise (will) to heirs upon death; the most complete interest in real property
Life Estate
granted for lifetime of an individual; right to posses property terminates upon life estate holder’s death, and property will pass to another party designated by original grantor
Future Interest
person’s right to property ownership and possession in the future
Leasehold
right to possess (but not own) property for a stipulated period of time
Easement
irrevocable right to use some part of another’s land for a specific purpose without taking anything from the land
Profit
right to enter another’s land and take part of the land, or take away a product of it
License
temporary, revocable right to use another’s property (ex: theater ticket)
Adverse Possession
when a person openly treats real property as his/he own with our protest/permission from real owner, for statutorily-established period of time, ownership is automatically vested in that person
Condemnation (eminent domain)
government acquires ownership of private property for “public use” for “just compensation” over the protest of the property owner
Trademark
a distinctive mark, word, design, picture, or arrangement used by seller in conjunction with a product and tending to cause consumer to identify product with the producer
-must be registered with the U.S. Patent and Trademark Office
Trade Dress
refers to the overall appearance and image of product
-entitled to same protection as a trademark
main focus of trade dress infringement case is whether there is likely to be consumer confusion in the comparison of 2 products
Copyright
protects the expression of a creative idea
-must be fixed (set out in a tangible medium expression)
-must be original
-must be creative
fair Use Doctrine
Provides that a portion of copyrighted work may be reproduced for purposes of “criticism, comment, news reporting, teaching, scholarships, and research”
Patent
protects a “product, process, invention, machine, or plant” that is “novel, useful, and nonobvious”
Trade Secret
a process, product, method of operation, or compilation of information that gives a businessperson an advantage over his or her competitors
-Allows holder to sue for violation if the owner can prove:
–trade secret existed
–defendant acquired trade secret through unlawful means
–defendant used trade secret without plaintiff’s permission
Wells Fargo Example
-wells fargo employees had opened more than 2 million accounts for customers without their permission
-employees were under extreme pressure from the company to meet certain sales quotas
-wells fargo returned $2.6 million to customers and paid $185 million to the consumer financial protection bureau
List of Primary Values
Freedom
Security
Justice
Efficiency
