legal aspects exam 1 Flashcards
body of enforceable rules governing relationships among individuals and between individuals and their society
law
in the US, our rules consist of written laws and court decisions created by ___
modern legislative and judicial bodies
regardless of how such laws are created, they all have one thing in common which is:
they establish rights, duties, and privileges that are consistent with the value and beliefs of a society or its ruling group
Laws and government regulations affect all business activies by:
hiring/firing decisions, basic understanding of the laws and regulations governing these activities is essential
The state of being legally responsible for something, such as debt or an obligation
liability
The failure to perform a legal obligation
breaches
if any dispute cannot be resolved amicably, then the laws and the rules concerning courts procedures spell out the steps of a
lawsuit
areas of the law that may affect business decision making
contracts
courts and court procedures
sales
professional liability
negotiable instruments
business organizations
creditor’s rights
agency
intellectual prooperty
torts
e-commerce
product liability
document that establishes the law on a particular issue, such as a constitution, a statute, an administrative rule, or a court decision
primary sources of law
Primary sources of law include
-the US constitution and the constitutions of various states
-statutes, or laws, passed by congress and by state legislatures
-regulations created by administrative agencies, such as the federal dood and drug administration
-case law (court decisions)
Publication that summarizes or interprets the law, such as legal encyclopedia, a legal treatise, or an article in a law review
secondary sources of law
Body of law derived from the U.S constitution and the constitutions of the various states
constitutional law
the U.S constitution is the ____ of the land
supreme law
a law in violation of the U.S constitution, if challenged, will be declared_____ and will not be enforced, no matter what its source
unconstitutional
This amendment to the US constitution reserves to the states all powers not granted to the federal government. Each state in the union has its own constitution.
Tenth amendement
The body of law enacted by legislative bodies
statutory law
when a legislature passes a statute, the statute ultimately is
included in the federal code of laws or the relevant state code of laws
when specific statute is mentioned in this text, we usually provide a footnote showing its
citation
a reference to a publication in which a legal authority, such as a statue or a court decision, or other source can be found
citation
statutory law also includes ____
local ordinances
a regulation enacted by a city or county legislative body that becomes part of that state’s statutory law
ordinances
ordinances commonly have to do with
-city or country land use
-building and safety codes
-other matters affecting only the local governing unit
No federal statue may violate the _____ and no _____ or _____may violate the the US consitution or the relevant state constitution
-US constitution
-no state statute
-local ordinance
A federal statue applies to ___, a state statue applies to___
-all states
-within the state’s borders
In 1800s the differences between state laws frequently created issues for businesspersons conducting trade and commerce among states. To figure out these issues a group of legal scholars and lawyers formed the national conference of comissioners on
Uniform state laws (NCCUSL) in 1892 to draft uniform laws
model law developed by the national conference of commissioners on uniform state laws for the states to consider enacting into statue
uniform laws
each state has the option of adopting or rejecting a ____
uniform law
Only if a state legislature adopts a uniform law does that law become part of the
statutory law of that state
One of the most important uniform acts is the
Uniform commercial code (UCC)
This was created through the joint efforts of the NCCUSL and the American law institute
Uniform commercial code (UCC)
The UCC was first issued in _____ and has been adopted by all 50 states and District of Columbia, and the Virgin Island. The UCC facilitates
commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions
This consists of the rules, orders, and decisions of administrative agencies
administrative law
_____A federal, state, or local government agency established to perform a specific function
administrative agency
procedurally, a defendant’s response to the plaintiffs complaint
answer
Rules issued by various administrative agencies now affect almost every aspect of a business’s operations:
-firm’s capital structure and financing
-hiring and firing procedures
-relations with employees and unions
-the way it manufactures and markets it products
Rules of law announced in court decisions. Interprets statutes, regulations, constitutional provisions, and other case law
case law
case law also governs all areas not covered by
Statutory law or administrative law, and is part of our common law tradition
Body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature
common law
Court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts
precedent
Common law doctrine under which judges are obligated to follow the precedents established in prior decisions
stare decisis (“ to stand on decided cases”)
The stare decisis has two aspects
- decisions made by a higher court are binding on lower courts
- court should not overturn its own precedents unless there is a strong reason to do so
an area in which a court or courts have the power to apply the law
Jurisdiction
Any source of law that a court must follow when deciding a case
binding authority
Binding authorities include:
-constitutions
-statutes
-regulations that govern the issue being decided
The doctrine of stare decisis helps the courts to be more efficient because if other courts have carefully reasoned through a similar case, their legal reasoning and opions can serve as
guides
stare decisis also makes the law more
stable and predictable
Courts are obligated to follow precedents, when will they depart from the rule of precedent?
if a court decides that a precedent is simply incorrect or that technological or social changes have rendered the precendent inapplicable
Example of supreme courts departure from precedent was in
brown v. board of education, it recieved a tremendous aount of publicity. It concluded that separate educational facilities for whites and blacks
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision
persuasive authorities
Given to a party to enforce a right or to compensate for the violation of a right
remedy
The one who initiates a lawsuit
plaintiffs
One against whom a lawsuit is brought, or the accused person in a criminal proceeding
Defendant
law that defines, describes, regulates, and creates legal rights and obligations
substantive law
Law that establishes the methods of enforcing the rights established by substantive law
procedural law
Other classification systems divide law into:
- federal law
- state law or private law (dealing with relationships between persons) and public law(addressing the relationships between persons and their governments)
All laws governing electronic communications and transactions, particularly those conducted via internet
cyberlaw
Branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters
Civil law
Typically in a civil case, a private party sues another private party to make sure that the other party complies with a
duty or pays for the damage caused by the failure to comply with a duty
System of law derived from roman law that is based on codified laws
civil law system
Branch of law that defines and punishes wrongful actions committed against the public
criminal law
Law that pertains to a particular nation, varies country to country
national law
Law that governs relations among nations
international law
They key difference between national law and international law is:
government authorities can enforce national law. if nation violates international law, enforcement is up to other countries or international organizations (which may or may not choose to act)
Provision in article I, section 8, of the US constitution that gives congress the pwoer to regulate interstate commerce
commerce clause
powers possessed by the states as part of their inherent sovereignty. These powers may be exercised to protect or promote the public order, health, safety, morals, and general welfare
police powers
dormant commerce clause comes into play when state regulations affect
interstate commerce
Negative aspect of the commerce clause is referred to as
dormant commerce clause
Requirement in article VI of the US constitution that provides that the constitution, laws, and treaties of the US are “the supreme law of the land”
supremacy clause
When there is a direct conflict between a federal law and a state law
the state law is rendered invalid
Doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws
Preemption
First ten amendements, was adopted in 1791 and emodby a series of protections for the individuals against various types of interference by the federal government
bill of rights
Freedom of religion, speech, and the press and the rights to assemble peaceably and to petition the government
first amendment
guarantees the right to keep and bear arms
second amendment
the lodging of soldiers in any house without the owner’s consent
third amendment
prohibits unreasonable searches and seizures of persons or property
fourth amendment
guarantees the righs to indictment by grand jury, to due process of law, and to fair payment private property is taken for public use
5th amendment
the accused in a criminal case the right to a speedy and public trial by an impartial jury with a counsel
6th amendment
guarantees the right to a trial by jury in a civil case involving at least 20 dollars`
7th amendment
prohibits excessive bail and fines, as well as cruel and unusual punishment
8th punishment
establishes that the people have rights in addition to those specified in the consitution
9th amendment
That those powers neither delegated to the federal government nor denied to the states are reserved for the states
10th amendment
nonverbal expressions of beliefs, symbolic speech, which includes gestures, movements, and articles of clothing, is given substantial protection by the courts
symbolic speech
corporate political speech continues to be given significant protection under the
first amendment
Generally, a restriction on commerical speech will be considered valid as long as it
- seeks to implement a substantial government interest
- directly advances that interest
- goes no further than necessary to accomplish its objective
Provision in the first amendment that prohibits the government from establishing any state-sponsored religion or enacting any law that promotes religion or favors one religion over another
establishment clause
1st amendment does not protect
obsence speech
guarantees that a person can hold any religious belief that they want, or a person can have no religious belief
free exercise clause
Provisions in the fifth and fourteenth amendments that guarantee that no person shall be deprived of life, liberty or property without due process of law, State constitutions often include similar clauses.
due process clause
due process clause of these constitutional amendments has two aspects:
procedural and substantitve
requires that any government decision to take life, liberty, or property must be made fairly
procedural due process
focuses on the content of legislation rather than the fairness of process
substantive due process
the provision in the fourteenth amendment that requires state governments to treat similarly situated individuals in a similar manner
equal protection clause
A test of constitutionality that requires the government to have convincing reasons for passing any law that restricts fundamental rights, such as free speech, or distinguishes between people based on a suspect trait
compelling government interest
court opinion by one or more judges or justices who agree with the majority but want to make or emphasize a point that was not made or emphasized in the majority’s opinion
concurring opinion
court opinion that represents the views of the majority of the judges or justices deciding the case
Majority opinion
court opinion that does not indicate which judge or justice authored the opinion
per curiam opinion
court opinion that is joined by the largest number of the judges or justices hearing the case but less than half of the total number
plurality opinion
The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch
before any court can hear a case, it must have ——over the person against whom the suit is brought (the defendant) or over the property in the suit.
jurisdiction
a state trial court normally has jurisdictional authority over residents in a
particular area of the state
court can also exercise jursidiction over property that is located within its boundaries. this is known as
rem jurisdiction or “jurisdiction over the thing”
A state statute that permits a state to exercise jurisdiction over nonresident defendants
long arm statute
before court can use long arm statute, the defendant must have
enough contacts, or minimum contacts, with the state to justify jurisdiction
a state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person’s state
probate courts
federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law
bankruptcy courts
Because the federal government is a government of____, the jurisdiction of the federal courts is _____. Federal courts have subject-matter jurisdiction in two situations.
limited powers, limited
a basis of federal court jurisdiction over a lawsuit between citizens of different states and countries
diversity of citizenship
Most common type of diversity jurisdiction has two requirements:
- plaintiff and defendant must be residents of different states
- the dollar amount in controversy must exceed 75,000
jurisdiction that exists when two different courts have the power to hear a case
concurrent jursidiction
jurisdiction that exists when a case can be heard only in a particular court or type of court
exclusive jurisdiction
the geographic district in which a legal action is tried and from which the jury is selected
venue
The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit
standing to sue
controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case
justiciable controversy
a special court in which parties can litigate small claims without an attorney
small claims courts
in lawsuit, issue that involves only disputed facts, and not what the law is on a given point
question of fact
in a lawsuit, an issue involving the application or interpretation of a law
question of law
The federal court system is three-tiered model consisting of
- us disrict courts and various courts of limited jurisdiction
2.us courts of appeals - the US supreme court
a writ from a higher court asking a lower court for the record of a case
writ of certiorari
a rule of the US supreme court under which the court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ
rule of four
The process of resolving a dispute through the court system
litigation
the list of cases entered on a court’s calendar and thus scheduled to be heard by the court
Docket
The resolution of disputes in ways other those involved in the traditional judicial process, such as negotiation,mediation, and arbitration
alternative dispute resolution (ADR)
The simplest form of ADR is
negotiation
Process in which parties attempt to settle their dispute informally, with or without attorneys to represent them. The transfer of an intrument in such form that the transferee becomes a holder
negotiation
Disputes are settled with outside courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement
Mediation
States that require parties to undergo ADR before trial often offer ______ as one of the ADR options or (as in Florida) the only option.
mediation
Settling of a dispute by submitting it to a disinterested third party who renders a decision
arbitration
Clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court
Arbitration clause
major provider of ADR services is
American arbitration association (AAA)
Resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet
Online dispute resolution (ODR)
The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet
Online dispute resolution (ODR)
ODR may be best suited for resolving _____ business liability claims, which may not be worth the expense of litigation or traditional ADR
small-to-medium
The monetary compensation given to a party at the end of a trial or other proceeding
award
written summary of statement prepared by one side in a lawsuit to explain its case to the judge
brief
the pleading made by a plaintiff alleging wrongdoing on the part of the defendant. when filed with a court, the complaint initiates a lawsuit
complaint
a claim made by a defendant in a civil lawsuit against the plaintiff. in effect, the defendant is suing the plaintiff
counterclaim
judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim
Default judgment
Testimony of a party to a lawsuit or a witness taken under oath before a trial
deposition
a method by which the opposing parties obtain information from each other to prepare for trial
discovery
a type of evidence that consists of all computer-generated or electronically recorded information
e-evidence
a question that pertains to the U.S constitution, an act of congress, or a treaty and provides a basis for federal jurisdiction in a case
federal question
a series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party’s attorney, and then signed under oath
interrogatories
the process by which a court decides on the constituionality of legislative enactments and actions of the executive branch
judicial review
Data that are automatically recorded by electronic devices and provide information about who created a file and when, and who accessed, modified, or transmitted it on their hard drives
metadata
a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim
motion for a directed verdict
a motion asserting that the trial was so fundamentally flawed that a new trial is necessary to preent a miscarriage of justice
motion for a new trial
motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury’s verdict against him/her was unreasonable and erroneous
motion for judgment N.O.V
a motion by either party to a lawsuit at the close of pleadings requesting the court to decide the issue soley on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute
motion for judgment on the pleadings
a motion requesting the court to enter judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute
motion for summary judgment
pleading where defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff’s claim to state a cause of action has no basis in law
motion to dismiss
statements by the plaintiffs and the defendant that details the facts, charges, and defenses of a case
pleadings
a plaintiff’s response to a defendant’s answer
reply
a doc. informing a defendant that a legal action has been commenced against her or him and that the defendant must appear in court on a certain date to answer the plaintiff’s complaint
summons
important part of jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes and biases to ascertain whether they can be impartial jurors
voir dire
wrongful actions
torts
business tortrs inclue vague concepts such as unfair
competition and wrongfully interfering with the business relations of antoher
two notions serve as the basis of all torts
wrongs and compensation
tort law is designed to compensate those who have suffered a
loss or injury due to another person’s wrongful act
a monetary award sought as a remedy for a breach of contract or a tortious action
damages
purpose of a tort law is to provide remedies for the invasion of various
protected interests, it provides remedies for acts that cause physical injury or interfere with physical security and freedom
torts also has society recognize that its important protect
family relations, reputation, and dignity
Intended to compensate or reimburse plaintiffs for actual losses
compensatory damages
compensatory damages awards are often broken down into:
special and general damages
special damages compensate the plaintiff for quantifiable monetary losses such as
medical expenses, lost wages, and benefits
general damages compensate individuals for the nonmonetary aspects of the harm suffered such as :
pain and suffering
Monetary damages that may be award to a plaintiff to punish the defendant and deter similar conduct in the future
Punitive damages
looking for a state court known to be sympathetic to their client’s cause and predisposed to award large damages
forum shopping
there are two broad classifications of torts
intentional torts and unintentional torts
a reasons why the plaintiff should not obtain damages
defenses
a wrongful act knowingly committed
intentional tort
one who commits a tort
tortfeasor
Person intends to harm one individual, but instead unintentionally harms a second person, can be held liable to the second victim for an intentional tort
transferred intent
intentional torts include:
assault, battery, false imprisonment, infliction of emotional distress, defamation, invasion of the right to privacy, appropriation, misrepresentation, abusive, or frivolous litigation
Any intentional and unexcused threat of immediate harmful or offensive contact, including words or acts that create fear onto the other person
Assault
unexcused and harmful in harm to the plaintiff
battery
intentional confinement or restraint of another person’s activities without justification
false imprisonment
capable of serving as the basis of a lawsuit. an actionable claim can be pursued in a lawsuit or other court action
actionable
wrongfully hurting a person’s good reputation
defamation
defamation in writing or another form having the quality of permanence(digital recording)
libel
defamation in oral form
slander
special right, advantage, or immunity granted to a person or a class of persons, to avoid liability for defamation over statements made in the courtroom during a trial
privilege
provides complete protection from disclosure in certain situations, regardless of the intent or circumstances.
absolute privilege
offers a more limited protection compared to absolute privilege. It depends on the circumstances surrounding the communication.
qualified privilege
The deliberate intent to cause harm that exists when a person makes a statement when either knowledge of its falsity or reckless disregard of the truth. is required to establish defamation against public figures
actual malice
person right to solitude and freedom from prying public eyes
privacy
invading someone’s home or illegally searching someone’s briefcase is
invasion of privacy
when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing.
public disclosure of private facts
using a person’s name, picture, or other likeness for commercial purposes without permission
tortious invasion of privacy
in tort law, the use by one person of another person’s name, likeness, or other identifying characteristic without permission and for the benefit of the user
appropriation
any misrepresentation knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment
fraudulent misrepresenation
A salesperson’s often exaggerated claims concerning the quality of property offered for sale.
puffery
can apply to any person using a legal process against another in an improper manner or to accomplish a purpose for which the process was not designed
abuse of process
wrongful interference with another’s business rights and relationships
business torts
wrongfully taking or retaining possession of an individual’s personal property and placing it in the service of another
conversion
Economically injurious falsehood about another’s product or property
disparagement of property
The publication of false information about another’s product, alleging that it is not what its seller claims
slander of quality
publication of a statement that denies or casts doubt on another’s legal ownership of any property, causing financial loss to that property’s owner
slander of title
Failure to exercise the standard of care that a reasonable person would exercise in similar circumstances
negligence
the defendant owed a duty to care to the plaintiff
duty
the defendant breached that duty
breach
the defendant’s breach caused the plaintiffs ijury
causation
the plaintiff suffered a legally recognizable injury
damages
the duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others
duty of care
The standard of behavior expected of a hypothetical “reasonable person”
reasonable person standard
person, such as a customer or a client, who is invited onto business premises by the owner of those premises for business purposes
business invitees
professional negligence, or failure to exercise reasonable care and professional judgment, that results in injury, loss, or damage to those relying on the professional
malpractice
An act or omission without which an event would not have occured
causation in fact
legal cause. it exists when the connection between an act and an injury is strong enough to justify imposing liability
proximate cause
the three basic affirmative defenses in negligence cases:
1.assumption of risk
2.superseding cause
3. contributory and comparative negligence
a defense to negligence. A plaintiff may not recover for injuries or damage suffered from risks he or she knows of and has voluntarily assumed
assumption of risk
only used in a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiffs own fault
contributory negligence
used in a MAJORITY of states, that reduces the plaintiff’s recovery in proportion to the plaintiffs degree of fault, rather than barring recovery completely
comparative negligence
doctrine under which negligence may be inferred simply because an event occured, if its the type of event that wouldnt occur in the absence of negligence
res ipsa loquitur (facts speak for themselves)
An action or failure to act in violation of a statutory requirement
negligence per se
state statute stipulating that persons who provide emergency services to, or rescue, someone in peril cannot be sued for negligence unless they act recklessly, thereby causing further harm
good samaritan statutes
imposes liability on the owners o bars and taverns as well as those who serve alcoholic drinks to the public, for ijuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication
dram shop acts
imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods
strict liability
entry onto, above, or below the surface of land owned by another without the owner’s permission or legal authorization
trespass to land
wrongfully taking or harming the personal property of another or otherwise interfering with the lawful owner’s possession of personal property
trespass to personal property
