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Business Law > Module 1 > Flashcards

Module 1 Flashcards

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1
Q

Definition of Law

A

A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong. (Blackstone)

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2
Q

Functions of Law

A

To maintain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.

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3
Q

Legal Sanctions

A

Means by which the law enforces the decisions of the courts

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4
Q

Law and Morals

A

Different but overlapping; law provides sanctions, while morals do not.

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5
Q

Law and Justice

A

Are separate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.

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6
Q

Right

A

Legal capacity to require another person to perform or refrain from performing an act.

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7
Q

Duty

A

Legal obligation requiring a person to perform or refrain from performing an act.

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8
Q

Substantive Law

A

Law creating rights and duties

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9
Q

Procedural Law

A

Rules for enforcing substantive law

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10
Q

Public Law

A

substantive law dealing with the relationship between government and individuals

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11
Q

Private Law

A

substantive law governing the relationships among individuals and legal entities

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12
Q

Civil Law

A

law dealing with rights and duties the violation of which constitutes a wrong against an individual or other legal entity

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13
Q

Criminal Law

A

law establishing duties which, if violated, constitute a wrong against the entire community

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14
Q

Prosecute

A

To bring a criminal proceeding

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15
Q

Constitutional Law

A

Fundamental law of a government establishing its powers and limitations

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16
Q

Judicial Review

A

the authority of the courts to determine the constitutionality of legislative and executive acts

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17
Q

Judicial Law - Common Law System

A

uses a body of law developed by the courts under an adversary system in which opposing parties initiate and present their cases

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18
Q

Judicial Law - Civil Law System

A

depend on comprehensive legislative enactments (called codes) and an inquisitorial system in which the judiciary initiates litigation, investigates pertinent facts, and presents evidence

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19
Q

Judicial Law - Common Law

A

the body of law that serves as precedent for determining later controversies; basis for the principle of stare decisis

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20
Q

Judicial Law - Equity

A

systembased on principles distinct from common law and providing different remedies

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21
Q

Judicial Law - Restatements of Law

A

an orderly restatement of the general common law of the United States, including law developed by judicial decision and law that has grown from judicial application of statutes; written by lawyers, judges and law professors

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22
Q

Stare Decisis

A

Principle that courts should apply rules decided in prior cases in deciding substantially similar cases.

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23
Q

Tort

A

Private or civil wrong or injury, other than breach of contract, for which a court will provide a remedy in the form of an action for damages.
three elements of every tort action are the existence of legal duty from defendant to plaintiff, breach of that duty, and damage as proximate result.

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24
Q

Decree

A

Decision of a court of equity

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25
Q

Specific Performance

A

Decree ordering a party to perform a contractual duty

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26
Q

Injunction

A

Decree ordering a party to do or refrain from doing a specified act

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27
Q

Reformation

A

Equitable remedy rewriting a contract to conform with the original intent of the contracting parties

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28
Q

Rescission

A

An equitable remedy invalidating a contract

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29
Q

Legislative Law

A

Statutes adopted by legislative bodies; includestreatiesand executive orders

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30
Q

Administrative Law

A

Rules, regulations, orders, and decisions made by administrative agencies

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31
Q

Order of Legal Opinions

A

Facts; Issues of law or fact; Legal principles involved; Application of legal principles; Decision

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32
Q

District Courts

A

Federal; trial courts of general jurisdiction that can hear and decide most legal controversies in the federal system.

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33
Q

Courts of Appeals

A

Federal; hear appeals from district courts and review orders of certain administrative agencies

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34
Q

The Supreme Court

A

Federal; nation’s highest court, whose principal function is to review decisions of the Federal Courts of Appeals and the highest State courts

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35
Q

Special Courts

A

Federal; have jurisdiction over cases in a particular area of federal law.
Includes the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankruptcy Courts, and the U.S. Court of Appeals for the Federal Circuit

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36
Q

Inferior Trial Courts

A

State; hear minor criminal cases, such as traffic offenses, and civil cases involving small amounts of money; conduct preliminary hearings in more serious criminal cases

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37
Q

Trial Courts

A

State; have general jurisdiction over civil and criminal cases

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38
Q

Appellate Courts

A

State; include one or two levels; the highest court’s decisions are final except in those cases reviewed by the U.S. Supreme Court

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39
Q

Jurisdiction

A

Power or authority of a court to hear and decide a given case

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40
Q

Subject Matter Jurisdiction

A

Authority of a court to judge a controversy of a particular kind of case - Exclusive Federal Jurisdiction and Concurrent Federal Jurisdiction

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41
Q

Exclusive Federal Jurisdiction

A

Federal jurisdiction is exclusive only if Congress so provides, either explicitly or implicitly.

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42
Q

Concurrent Federal Jurisdiction

A

Federal jurisdiction is concurrent with state jurisdiction in cases of federal questions (unless there is exclusive federal jurisdiction) and in diversity cases.
Diversity of Citizenship - Plaintiffs and defendants from different states and amount in controversy is over $75,000, or
Foreign country brings suit against US citizens, or
Suit is between US citizen and citizens of a foreign country

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43
Q

Exclusive State Jurisdiction

A

jurisdiction over all other (non-federal) matters

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44
Q

In Personam Jurisdiction

A

Based upon claims against a person, in contrast to jurisdiction over the person’s property
Most states have adopted long-arm statutes.

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45
Q

In Rem Jurisdiction

A

Based on claims against property

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46
Q

Attachment Jurisdiction

A

jurisdiction over a defendant’s property to obtain payment of a claim not related to the property

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47
Q

Venue

A

geographic area where lawsuit should be brought

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48
Q

Pleadings

A

a series of statements that give notice and establish the issues of fact and law presented and disputed

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49
Q

Complaint

A

initial pleading by the plaintiff stating his case

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50
Q

Summons

A

notice given to inform a person of a lawsuit against her

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51
Q

Demurrer

A

An allegation of a defendant that even if the facts as stated in the pleading to which objection is taken be true, their legal consequences are not such as to require the demurring party to answer them or to proceed further with the cause.

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52
Q

Judgment on Pleadings

A

a final ruling in favor of one party by the judge based on the pleadings

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53
Q

Discovery

A

right of each party to obtain evidence from the other party

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54
Q

Pretrial Conference

A

a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial

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55
Q

Summary Judgment

A

final ruling by the judge in favor of one party based on the evidence disclosed by discovery

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56
Q

Jury Selection

A

(voir dire) each party has an unlimited number of challenges for cause and a limited number of peremptory challenges

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57
Q

Conduct of Trial

A

Both attorneys make an opening statement about the facts that they expect to prove.
Witnesses testify on direct examination and cross-examination.
Closing arguments summarize the evidence and urge a favorable verdict

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58
Q

Directed Verdict

A

plaintiff may request the judge to rule on the merit of the case; this judgment is binding

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59
Q

Jury Instructions

A

particular rules of law that apply to the case

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60
Q

Verdict

A

formal decision by the jury on questions submitted to it

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61
Q

Motions Challenging Verdict

A

such as motions for a new trial and a motion for judgment notwithstanding the verdict

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62
Q

Appeal

A

Determines whether the trial court committed prejudicial error

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63
Q

Enforcement

A

Plaintiff with an unpaid judgment may resort to a writ of execution to have the sheriff seize property of the defendant and garnishment to collect money owed.

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64
Q

Arbitration

A

a nonjudicial proceeding in which a neutral party selected by the disputants renders a binding decision (award).
Types of Arbitration:
Consensual Arbitration
Compulsory Arbitration

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65
Q

Consensual Arbitration

A

Arbitration voluntarily entered into by the parties

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66
Q

Compulsory Arbitration

A

Arbitration required by statute for specific types of disputes.

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67
Q

Conciliation

A

Nonbinding process in which a third party acts as an intermediary between the disputing parties.

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68
Q

Mediation

A

Nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider

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69
Q

Med-arb

A

Binding process in which a third party serves first as a mediator and then as an arbitrator for those issues not resolved through mediation

70
Q

Mini-Trial

A

Nonbinding process in which attorneys for the disputing parties present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party

71
Q

Summary Jury Trial

A

Mock trial followed by negotiations

72
Q

Negotiation

A

Consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties

73
Q

Certiorari

A

To be informed of. A writ of common law origin issued by a superior court to an inferior court requiring the latter to produce a certified record of a particular case tried therein. It is most commonly used to refer to the Supreme Court of the United States, which uses the writ of certiorari as a discretionary device to choose the cases it wishes to hear.

74
Q

Federalism

A

the division of governing power between the federal government and the states

75
Q

Federal Supremacy

A

federal law takes precedence over conflicting state law

76
Q

Federal Preemption

A

right of the federal government to regulate matters within its power to the exclusion of regulation by the states

77
Q

Judicial Review

A

examination of governmental actions to determine whether they conform to the U.S. Constitution

78
Q

Separation of Powers

A

allocation of powers among executive, legislative, and judicial branches of government

79
Q

State Action

A

actions of governments to which constitutional provisions apply

80
Q

Federal Commerce Power

A

exclusive power of the federal government to regulate commerce with other nations and among the states

81
Q

State Regulation of Commerce

A

the Commerce Clause restricts the states’ power to regulate activities if the result obstructs interstate commerce

82
Q

Federal Fiscal Powers

A

Taxation and Spending, Borrowing and Coining Money, Eminent Domain

83
Q

Taxation and Spending

A

the Constitution grants Congress broad powers to tax and spend; such powers are important to federal regulation of the economy

84
Q

Borrowing and Coining Money

A

enables the federal government to establish a national banking system and to control fiscal and monetary policy

85
Q

Eminent Domain

A

the government’s power to take private property for public use with the payment of just compensation.

86
Q

Standards of Scrutiny

A

Rational Relationship Test, Strict Scrutiny Test, Intermediate Test

87
Q

Rational Relationship Test

A

regulation must bear a rational relationship to a legitimate government interest.

88
Q

Strict Scrutiny Test

A

regulation must be necessary to promote a compelling government interest

89
Q

Intermediate Test

A

regulation must have a substantial relationship to an important government objective

90
Q

Contract Clause

A

restricts states from retroactively modifying public charters and private contracts

91
Q

First Amendment

A

Free Speech – is not absolute. Some forms of speech (e.g., obscenity) are not protected

92
Q

Corporate Political Speech

A

a corporation’s right to speak out on political issues

93
Q

Commercial Speech

A

expression related to the economic interests of the speaker and its audience; receives a lesser degree of protection

94
Q

Defamation

A

civil wrong or tort that diminishes a person’s reputation by publishing a false statement ; receives limited constitutional protection

95
Q

Fifth and Fourteenth Amendments

A

prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law

96
Q

Substantive Due Process

A

requires governmental action to be compatible with individual liberties

97
Q

Procedural Due Process

A

requires the governmental decision-making process to be fair and impartial if it deprives a person of life, liberty, or property

98
Q

Equal Protection

A

requires that similarly situated persons be treated similarly by governmental actions

99
Q

Rulemaking

A

process by which administrative agencies promulgate rules of law.

100
Q

Legislative Rules

A

substantive rules issued by an administrative agency under the authority delegated to it by the legislature

101
Q

Interpretative Rules

A

statements issued by an administrative agency indicating how it construes the statutes and rules that it administers

102
Q

Procedural Rules

A

rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct

103
Q

Enforcement

A

process by which agencies determine whether their rules have been violated

104
Q

Adjudication

A

formal methods by which an agency resolves disputes

105
Q

Judicial Review

A

acts as a control or check by a court on a particular rule or order of an administrative agency

106
Q

Legislative Control

A

includes control over the agency’s budget and enabling statute

107
Q

Executive Branch Control

A

includes the President’s power to appoint members of the agency

108
Q

Disclosure of Information

A

Congressionally required public disclosure enhances oversight of agency activities.
Freedom of Information Act
Privacy Act
Government in the Sunshine Act

109
Q

Administrative Process

A

Entire set of activities engaged in by administrative agencies while carrying out their rulemaking, enforcement, and adjudicative functions.

110
Q

Rule

A

Agency statement of general or particular applicability designed to implement, interpret, or process law or policy.

111
Q

Administrative Agency

A

Government entity (other than a court or legislature) having authority to affect the rights of private parties.

112
Q

Informal Rulemaking Requirments

A

Prior notice of a proposed rule, usually by publication in the Federal Register.
An opportunity for interested parties to participate in the rulemaking.
Publication of a final draft containing a concise general statement of the rule’s basis and purpose at least thirty days before its effective date.

113
Q

Formal Rulemaking

A

Agency must consider the record of the trial-like agency hearing and include a statement of “findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record” when making rules.

114
Q

Hybrid Rulemaking

A

Results from combining the informal procedures of the Administrative Procedure Act (APA) with the additional procedures specified by the enable state. Example: An agency may be required to conduct a legislative-type hearing (formal) that permits no cross-examination (informal).

115
Q

Order

A

Final disposition made by an agency

116
Q

Freedom of Information Act (FOIA)

A

gives the public access to most records in the files of federal administrative agencies.

117
Q

Crime

A

Any act or omission forbidden by public law.

118
Q

Actus Reus

A

Wrongful or overt act

119
Q

Mens Rea

A

Criminal intent or mental fault

120
Q

Mala in se

A

Wrong in itself, or morally wrong

121
Q

Mala Prohibita

A

Not morally wrong, but declared wrongful by law

122
Q

Vicarious Liability

A

Liability imposed upon one person for the acts of another; employers may be liable

123
Q

Liability of a Corporation

A

Corporations can only be fined, not imprisoned.

Responsible corporate officers can be fined and imprisoned.

124
Q

White-Collar Crime

A

Nonviolent crime involving deceit, corruption, or breach of trust.

125
Q

Computer Crime

A

Use of a computer to commit a crime or a crime targeted at a computer.

126
Q

Racketeer Influenced and Corrupt Organizations Act (RICO)

A

Federal law intended to stop organized crime from infiltrating legitimate businesses.

127
Q

Larceny

A

Trespassers taking and carrying away of personal property of another with the intent to deprive the victim permanently of the property.

128
Q

Embezzlement

A

Taking of another’s property by a person who was in lawful possession of the property.

129
Q

False Pretenses

A

Obtaining title to property of another by means of representation one knows to be materially false; made with intent to defraud.

130
Q

Robbery

A

Committing larceny with the use or threat of force.

131
Q

Burglary

A

Under most modern statutes, an entry into a building with the intent to commit a felony.

132
Q

Extortion and Bribery

A

Offering money or property to a public official to influence the official’s decision.

133
Q

Forgery

A

Intentional falsification of a document to defraud

134
Q

Bad Checks

A

Knowingly issuing a check without sufficient funds to cover it.

135
Q

Defense of Person or Property

A

Individuals may use reasonable force to protect themselves, other individuals, and their property.

136
Q

Duress

A

Coercion by threat of serious bodily harm; a defense to criminal conduct other than murder.

137
Q

Mistake of Fact

A

Honest and reasonable belief that conduct is not criminal.

138
Q

Entrapment

A

Inducement by a law enforcement official to commit a crime.

139
Q

Steps in Criminal Prosecution

A

Generally include arrest, booking, formal notice of charges, preliminary hearing to determine probable cause, indictment or information, arraignment, and trial.

140
Q

Fourth Amendment

A

Protects individuals against unreasonable searches and seizures.

141
Q

Fifth Amendment

A

Protects persons against self-incrimination, double jeopardy, and being charged with a capital crime except by grand jury indictment.

142
Q

Sixth Amendment

A

Provides the accused with the right to a speedy and public trial, the opportunity to confront witnesses, process for obtaining witnesses, and the right to counsel.

143
Q

Tort

A

Relief from civil wrong or injury.
Injuries may be inflicted intentionally, negligently, or without fault (strict liability).
In a tort action, the injured party seeks compensation or damages.

144
Q

Tort Intent

A

Actor (the tortfeasor) desires to cause the consequences of her actions. OR
Knows that the consequences are substantially certain to result from her act.

145
Q

Battery

A

Intentional infliction of harmful or offensive bodily contact.

146
Q

Assault

A

Intentional infliction of apprehension of immediate bodily harm or offensive contact.

147
Q

False Imprisonment

A

Intentional confining of a person against her will.

148
Q

Infliction of Emotional Distress

A

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.

149
Q

Defamation

A

False communication that injures a person’s reputation

Libel, Slander

150
Q

Libel

A

Written or electronically transmitted defamation

151
Q

Slander

A

Spoken defamation

Requires publication to a third party

152
Q

Defamation Case Defenses

A

Truth, absolute privilege, conditional privilege, and constitutional privilege

153
Q

Appropriation

A

Unauthorized use of a person’s identity

154
Q

Intrusion

A

Unreasonable and offensive interference with the seclusion of another

155
Q

Public Disclosure of Private Facts

A

Offensive publicity of private information

156
Q

False Light

A

Offensive and false publicity about another

157
Q

Defenses of Invasion of Privacy

A

Absolute, conditional, and constitutional privilege apply to any matter that is an invasion of privacy.

158
Q

Misuse of Legal Procedure

A

Torts of malicious prosecution, wrongful civil proceeding, and abuse of process that protect an individual from unjustifiable litigation.

159
Q

Real Property

A

Land and anything attached to it

160
Q

Real Property Trespass

A

Wrongfully entering land of another

161
Q

Real Property Nuisance

A

A nontrespassory interference with another’s use and enjoyment of land.

162
Q

Personal Property

A

Property other than land

163
Q

Personal Property Trespass

A

An intentional taking or use of another’s personal property.

164
Q

Conversion

A

Intentional exercise of control over another’s personal property.

165
Q

Interference with Contractual Relations

A

Intentionally causing one of the parties to a contract not to perform

166
Q

Disparagement

A

Publication of false statements about another’s property or products

167
Q

Fraudulent Misrepresentation

A

A false statement, made with knowledge of its falsity, intended to induce another to act.

168
Q

Subjective Fault

A

Purposeful, knowing, or reckless

169
Q

Objective Fault

A

Gross deviation from reasonable conduct

170
Q

Liability Without Fault

A

Crime to do a specific act or cause a certain result without regard to the care exercised.

171
Q

Mail Fraud

A

Using the mail to carry out a scheme that attempts to defraud others.

172
Q

Recklessness

A

Conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed

Business Law (2 decks)

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