Exam 1 (Chapters 1, 2, 4 & 5) Flashcards
Treble Damages
A statue that says any individual or company harmed may bring a separate action to receive three times the damages actually sustained
Federal Trade Commission Act
One of the statues that regulate unfair competition. It
outlaws unfair methods of competition and unfair acts/practices that affect commerce
Price Discrimination
Occurs when a seller charges different prices to different buyers for “commodities of like grade and quality”, with the result being reduced competition or a tendency to create a monopoly
Also prohibits charging different prices to buyers as related to marginal costs
The Clayton Act is the federal law that makes this an illegal crime
Ex Post Facto
Laws that make criminal an act that has already been committed but was not criminal when it was committed
Laws that increase the penalty for an act already committed above the penalty in force when the act was committed
The Constitution prohibits both states and the federal government from adopting these laws
Difference in Grade
Quality or quantity
Six justified permitted basis of Price Discrimination
- A difference in grade (quality or quantity)
- The cost of transportation involved with performing the contract
- A good-faith effort to meet competition
- Differences in methods or quantities, that is, marginal cost differences
- Deterioration of goods
- A close-out sale of a particular line of goods
Constitution
A body of principles that establishes the structure of a government and the relationship of the government to the people who are governed; State and federal
The U.S. adopted theirs in 1789, after the 13 colonies won their independence from King George
The Branches of Government
Legislative Branch (Congress)
Executive Branch (President)
Judicial Branch (Courts)
Legislative Branch
The branch of government that makes the laws
U.S. Congress (Senate & The U.S. House of Representatives)
Executive Branch
The branch of government that executes or enforces the laws
The President
Judicial Branch
The branch of government that interprets the laws
The Court System
Delegated Powers
Powers, given by the Constitution, that are exclusive to either the state governments or to the national government
i.e. The national government alone may declare war or establish a currency
Shared Powers
The powers delegated to the national government that may still be exercised by the states
i.e. The grant of power to the national government to impose taxes did not destroy the state power to tax
Police Power
The states possess the power to adopt laws to protect the general welfare, health, safety and morals of the people
i.e. States may require that businesses be licensed with state agencies to protect persons dealing with the business
Prohibited Powers
The powers given by the Constitution that does not allow both states and the federal government from doing certain things
i.e. Neither states nor the national government may adopt ex post facto laws
Complaint
The filing of this begins a lawsuit
Generally contains a description of the wrongful conduct and a request for damages, such as a monetary amount
Bedrock View
The argument that the U.S. Constitution should be interpreted strictly; Originalist view suggesting that the federal government gets the least power possible
The purpose of a constitution is to state certain fundamental principles for all time
Living Document View
The argument that the U.S. Constitution should be interpreted broadly, suggesting that the federal government should be given the greatest power that the words would permit
This view also states that a constitution is merely a statement of goals and objectives and is intended to grow and change with time (Supreme Court follows this view)
Trier of Fact
Person, or group of persons, who determines facts in a legal proceeding, usually a trail
Voir Dire
Examination process where jury selection takes place
Jurors drawn for service are questioned by the judge and lawyers to determine whether they are biased or have any preformed judgments about the parties in the case
Due Process Amendments
Fifth and Fourteenth Amendments both limit the power of the government by prohibiting the national government and the state governments from depriving any person of “life, liberty or property without ___ of law”
Due Process Clause
(As a result of liberal interpretation of the Constitution) This clause now provides a guarantee of protection against the loss of property or rights without the change to be heard
The amendments also guarantee that all citizens are given the same protections
[U.S. Constitution, Fourteenth Amendment as to the states; modern interpretation of the ___ ______ clause of the Fifth
Amendment as to national government. Congress adopted the Civil Rights Act to implement the concept of equal
protection]
Equal Protection Clause
The Constitution prohibits the states and the national government from denying any person the ____ _____ of the law
This guarantee prohibits a government from treating one person differently from another when there is no reasonable ground for classifying them differently
Interstate Commerce Clause
To protect commerce, Congress was given Article I, Section 8, Clause 3: the power to regulate commerce with foreign nations, and along the several states and with the Indian Tribes
- Until 1937, The Supreme Court held that this provision gave Congress the power to control or regulate only that commerce crossing a state line (i.e. interstate railway train/telegraph message)
- 1947 The power expanded to the point that it gave authority to Congress to adopt regulatory laws that were “as broad as the economic needs of the nation” (manufacturing, agriculture, mining, stock exchanges, insurance, loan sharking etc)
- Today legislation and congressional authority is shared, some limitations are placed on this clause in order to asses the nature in which underlying activities are being regulated
Discrimination against Interstate Commerce
States many not use their tax power for the purpose of discriminating against interstate commerce
Tying
Occurs when the seller makes a buyer who wants to purchase one product buy an additional product that he or she does not want
It is a violation of the Sherman Antitrust Act (section 1)
Closeout
A sale on goods of a type that will no longer be carried by the store
The Sherman Antitrust Act
Contains two sections that control monopolistic behavior
- Every contract, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal
- Every person who shall monopolize or attempt to monopolize any part of trade or commerce among the several states (or foreign nations), or combine with others (who plan to do the same), shall be deemed guilty of a felony
Per Se Violation
(Of the Sherman Antitrust Act) Any agreement to change an agreed-upon price or to set maximum or minimum prices between or among competitors are doing this
Sometimes referred to as Horizontal Price-Fixing
Divestiture Order
If the Clayton Act is violated through ownership or control of competing enterprises, a court may order the violating defendant to dispose of such interest by issuing a decree called _____
Parens Patriae
“Parent of its people”
i.e. The attorney general of a state may bring a class-action suit to recover damages on behalf of those who have paid the higher prices, this action is based on the theory that the sate is suing as the parent of its people
Ombudsman
An official appointed to investigate individuals’ complaints against maladministration, especially that of public authorities
Monopolization
Attempts to monopolize
Monopolies and combinations that restrain trade are prohibited under the federal antitrust laws
The Right of Privacy
An individual right granted by The Constitution that has two components
1) The right to be secure against unreasonable searches and seizures by the government
The Fourth Amendment (exclusionary rule) of the U.S. Constitution guarantees this position
Interrogatories
Written questions used as a discovery tool that must be answered under oath
1937 Supremacy Clause
In this year, the Supreme Court moved from an expansive interpretation of the Commerce Clause to a more narrow view, striking down numerous laws intended to protect the publics health
Conflict of Law
When a lawsuit is brought, there is not just the question of where a case will be tried but also of what law will be applied in determining the rights of the parties. The principle that deter- mines when a court applies the law of its own state—the law of the forum—or some foreign law is called
Some general rules apply. For example, the law of the state in which the court is located governs the case on procedural issues and rules of evidence. In contract litigation, the court applies the law of the state in which the contract was made for determining issues of formation. Performance disputes and damages for nonperformance are generally governed by the law of the state where the contract is to be performed. International con- tracts follow similar rules. * In the absence of a law-selecting provision in the contract, there is a growing acceptance of the rule that a contract should be governed by the law of the state that has the most significant contacts with the transaction.*
Specific Performance
Courts can order defendants in contract disputes to actually perform the contractual duties as originally agreed if it is determined that money alone cannot resolve the issue
An equitable remedy
i.e. could require the owner to convey title to the house
Precedent
When a court decides a new questions or problem its decision becomes a ____
Which stands as the law in future cases that involve that particular problem
Stare Decisis
Using precedent and following decisions is also known as the doctrine of ___
This rule is not set in stone, judges have some flexibility. When a court finds an earlier decision to be incorrect, it overrules that decision
Common Law
The body of unwritten principles originally based upon the usages and customs of the community that were recognized and enforced by the courts; time honored rules of the community
Changes in The U.S. Constitution
Changes in the constitution are brought about by
- Interpretation
- The U.S. Supreme Court has made the greatest changes by interpreting - Amendment
- Article V gives the procedure to follow for amending the constitution - Practice
- In practice, the letter of the constitution is not always followed
Substantive Law
Creates, defines and regulates rights and liabilities; the law that determines when a contract is formed
Procedural Law
Specifies the steps that must be followed in enforcing those rights and liabilities (substantive law)
Criminal Law
The laws that define wrongs against society
Violations carry fines and imprisonment as penalties
Civil Law
The laws that define the rights of one person against another
Violations carry damage remedies for the wronged individual`
Positive Law
Law enacted and codified by governmental authority
Natural Law
A system of principles to guide human conduct independent of, and sometimes contrary too, enacted law and discovered by man’s rational intelligence
Imposes higher standards of behavior and they must be followed even if those higher standards run contrary to codified law
Civil Disobedience
The term used when natural laws proponents violate positive law
Subpoena
The usual writ for the summoning of witnesses or the submission of evidence, as records or documents, before a court or other deliberative body
Law
The order or pattern of rules that society establishes to govern the conduct of individuals and the relationships among them
Sources of Law
The U.S. Constitution State Constitutions Federal Statues State Statues Common Law Case Law Administrative Law
Administrative Agencies
Promulgate administrative regulations, they have a significant amount of power delegated to them. All members belonging to these entities are not elected by voters, they are appointed by the president and at certain levels appointment they possible candidates must be approved by Congress
State and federal examples
- Securities and Exchange Commission (SEC)
- Environmental Protection Agency (EPA)
Statutory Law
Legislative acts declaring, commanding or prohibiting something
Private Law
The rules and regulations parties agree to as part of their contractual relationships
Case Law
Law that includes principles that are expressed for the first time in the court decisions
Administrative Agencies and The Constitution
These units of government were virtually unheard of in 1789, and the Constitution made no mention of them
The vast powers of the new Constitution are exercised to a very large degree by administrative agencies.
They are in effect a fourth branch of the government, not provided for in the written Constitution
They are ones that come in contact with the majority of businesspersons and citizens
Deposition
The testimony of witness taken out of court before a person authorized to administer oaths;
Expert Witness
One who has acquired special knowledge in a particular field as through practical experience or study, or both, whose opinion is admissible as an aid to the trier of fact
Jurisdiction
The power of a court to hear and determine a given class of cases; the power to act over a particular defendant
Original Jurisdiction
The authority to hear a controversy when it is first brought to court (trail court)
Appellate Jurisdiction
The power of a court to hear and decide a given class of cases on appeal from another(lower) court or administrative agency
Limited (Special) Jurisdiction
The authority to hear only particular kinds of cases
i.e. many states have courts that can hear only disputes where damages are $10,000 or less
General Jurisdiction
The power to hear and decide most controversies involving legal rights and duties
Subject Matter Jurisdiction
Judicial authority to hear a particular type of case
Appeal
Taking a case to a reviewing court to determine whether the judgment of the lower court or administrative agency was correct
The U.S. District Courts
The general trial courts for the federal system, they are courts of original jurisdiction that hear both civil and criminal matters
Civil Case in Federal Court
- Civil suits in which the United States is a party
- Cases between citizens of different states that involve damages of $75,000 or more
- Cases that arise under the U.S. Constitution or federal laws and treaties.
Writ of Certiorari
The U.S. Supreme Court granting a right of review by the court of a lower court decision
Counterclaim
A claim that the defendant in an action may make against the plaintiff, which is asking the court for damages as a result of the underlying dispute
Pleadings
The papers filed by the parties in an action in order to set forth the facts and frame the issues to be tried, although, under some systems, the pleadings merely give notice or a general indication of the nature of the issue (all documents filed in the the initial phase of the case)
Discovery
Procedures for ascertaining facts prior to the time of the trial in order to eliminate the element of surprise in litigation
Requires each side to name its potential witnesses and to provide each side the chance to question those witnesses in advance of the trial
Impeach
Using prior inconsistent evidence to challenge the credibility of a witness
Motion for Summary Judgment
Request that the court decide a case on basis of law only because there are no material issues disputed by the parties
Direct Examination
Examination of a witness by his or her attorney
Cross Examination
The examination made of a witness by the attorney for the adverse party
Redirect Examination
Questioning after cross examination, in which the attorney for the witness testifying may ask the same witness other questions to overcome effects of the cross examination
Recross Examination
An examination by the other side’s attorney that follows the redirect examination
Motion for Directed Verdict
A direction by the trial judge to the jury to return a verdict in favor of a specified party to the action
Motion for Mistrial
A court’s declaration that terminates a trial and postpones it to a later date; commonly entered when evidence has been of a highly prejudicial character or when a juror has been guilty of misconduct
Motion for Judgment n.o.v.
non obstinate verdicto/not with standing the verdict
A judgment entered after verdict upon the motion of the losing party on the ground that the verdict is so wrong that a judgment should be entered the opposite of the verdict
The Taxing Power
“Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States”
Privileges and Immunities Clause
A clause that entitles a person going into another state to make contracts, own property, and engage in business to the same extent as citizens of the state
Power to Regulate Business
Under the police power, states may regulate all aspects of business so long as they do not impose an unreasonable burden on interstate commerce or any activ- ity of the federal government.
Horizontal Restraints
Statues set in place, by both the federal and state governments, that regulate anticompetitive behavior among competitors
Vertical Restraints
Statues set in place, by both the federal and state governments, that regulate anticompetitive behavior throughout the supply chain
Clayton Act
The Sherman Anti Trust Act does not prohibit bigness.. However, this act provides that “no corporation … shall acquire the whole or any part of the assets of another corporation … where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
Prohibits price discrimination
Mergers
Mergers among competitors is feared because the combination of large companies could result in their domination of the distribution chain and would result in price increases
When large-size enterprises plan to merge, they must give written notice to the FTC and to the head of the Antitrust Division of the Department of Justice. This advance notice gives the department the opportunity to block the merger and thus avoid the loss that would occur if the enterprises merged and were then required to separate
Farmers’ Cooperatives
An association of export, who is exempt from the Sherman Act
State Constitutions
Each state has one
Goods Deterioration
Price discrimination expresses permission for this reason
Even though technology affords others the ability to eavesdrop on conversations and intercept electronic messages the law has stepped in to reestablish that the right of privacy still exists even in these technologically nonprivate circumstances
Some laws now make it a crime and a breach of privacy to engage in such interceptions of communications
National Conference of Commissioners on Uniform State Laws (NCCUSL)
Facilitates the national nature of business and transactions, composed of representatives of every state and has drafted statues on various subjects for adoption by the states
Legal Remedy
Also known as judicial relief is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will
Currency/War Power
A delegated power that belongs to the national government alone (U.S. Congress)
Transport Costs (goods)
Price discrimination expresses permission for this reason
Closeout of Line (goods)
Price discrimination expresses permission for this reason
Contempt of Court
Actions which either defy a court’s authority, cast disrespect on a court, or impede the ability of the court to perform its function
Two types: Civl & Criminal Contempt
Criminal Contempt of Court
A party causing a serious disruption in the courtroom, yelling at the judge and refusing to testify before a grand jury are all actions that constitute a
Civil Contempt of Court
Someone failing to adhere to an order from the court (with resulting injury to a private party’s rights) and someone failing to pay court ordered child support are both that constitute a
Who has the power to borrow on U.S. credit?
Federal Government (U.S. Congress Only)
Conspiracy, in Restraint of Trade or Commerce
The Sherman Antitrust Act declared this to be illegal
Article I of the Constitution
Gives Congress its powers and limits, creates the two sections of Congress and Article 8 contains The Commerce Clause
Article II of the Constitution
Makes The Executive Branch of the United States
Article III of the Constitution
Creates The Judicial Branch of The Constitution
Choice of Law
A set of rules used to select which jurisdiction’s laws to apply in a lawsuit
It is becoming more common for parties to specify this in their contract
General Welfare Clause
Article I, Section 8 of The Constitution/The Commerce Clause
Peremptory Challenges
A challenge that is used to strike (remove) a juror for any reason except on racial grounds
Challenge for Cause
Attorneys question potential jurors to determine if they should be
Motion to Dismiss
A pleading that may be filed to attack the adverse party’s pleading as not stating a cause of action or a defense
Diversity Jurisdiction
A form of subject-matter jurisdiction in civil procedure in which a United States district court in the federal judiciary has the power to hear a civil case when the amount in controversy exceeds $75,000 and where the persons that are parties are “diverse” in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens
Question of Law
An issue in court that is to be decided by the judge
Burdening Interstate Commerce
Under the police power, states may regulate all aspects of business so long as they do not impose an unreasonable ___ on ____ _____ or any activity of the federal government
i.e. If the federal government establishes safety device regulations for interstate carriers, a state cannot require different devices
Price Regulation
The Sherman Act is the federal law that regulates this form of anticompetitive behavior among horizontal competitors
Both national and state governments may do this
Commodity
A raw material or primary agricultural product that can be bought and sold, such as copper or coffee
