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Business Law I > Unit 1 > Flashcards

Unit 1 Flashcards

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1
Q

Uniform Acts

A

model statues drafted by private bodies of lawyers and scholars. They do not become law until legislature enact them. 3

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2
Q

Common Law

A

Judge made law or case law; not governed by statutes. “stare decisis - let the decision stand” 3

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3
Q

Restatements

A

Collections of common law promulgated by the American law institute covering various areas of law. 4

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4
Q

real property

A

fixed property, principally land and buildings

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5
Q

Personal property

A

movable property

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6
Q

Equity

A

Mid-evil body of law concerned with those remedies that could not be sought in common law court. 6

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7
Q

injunction

A

Equity principle: Court order forbidding a party to do some act or commanding him to perform some act. 7

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8
Q

specific performance

A

Equity principle: a contract remedy whereby a party is ordered to perform according to the terms of her contract. 7

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9
Q

reformation

A

Equity principle: In which the court rewrites the contract terms to reflect the parties’ real intentions. 7

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10
Q

rescission

A

Equity principle: A cancellation of a contract and a return of the parties to their pre-contractual position. 7

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11
Q

Administrative agencies obtain the ability to make a law through….

A

…..delegation or grant of power from the legislature. 7

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12
Q

Treaties are made by the president with foreign government(s) and approved by …

A

2/3 of U.S. Senate 7

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13
Q

Federal Supremacy

A

The U.S. Constitution, federal laws, and treaties are the supreme law of the land. 7

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14
Q

When a treaty conflicts with a federal statute over a domestic matter….

A

…..the latest enacted measure usually prevails. 7

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15
Q

Substantive Law

A

Sets the rights and duties of people as they act in society. 9

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16
Q

Procedural law

A

Controls the behavior of government bodies (mainly courts) as they establish and enforce rules of substantive law. (example: the rules describing proper conduct of a criminal trial) 9

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17
Q

Public law

A

Concerns the powers of government and the relations between government and private parties. 9

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18
Q

Private law

A

Legal rules that enable parties to set rights and duties they owe other (contracts and property) 9

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19
Q

Legal positivism

A

School of jurisprudence: Defines long as the command of a recognized political authority. These people believe all laws should be obeyed whether just or unjust. 10

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20
Q

Natural Law

A

School of jurisprudence: Adherents usually contended that some higher law or set of universal moral code of rules binds all human beings in all times and places. 10

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21
Q

American Legal Realism

A

School of jurisprudence: they define law as the behavior of public officials (mainly judges) as they deal with matters before the legal system. 10

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22
Q

Sociological jurisprudence

A

School of jurisprudence: law that is a reflection of societies dominant interest and values throughout its history 11

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23
Q

The six functions of law

A
  1. peacekeeping
  2. Checking government power and promoting personal freedom
  3. facilitating planning and the realization of reasonable expectations (contract law)
  4. promoting economic growth through free competition
  5. promoting social justice
  6. protecting the environment 12
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24
Q

3 major statutory interpretation techniques used by courts

A
  1. plain meaning (exact meaning of the statute)
  2. Legislative history and legislative purpose (to determine the states purpose and intent)
  3. General public purpose; widely accepted notions of public policy such as criminalization of racism 17
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25
Q

what is “standing to sue”

A

requirement that a plaintiff have some direct, tangible, and substantial stake in the outcome of the litigation 21

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26
Q

what is a “declaratory judgement”

A

often used by a party to avoid potential lawsuit; allows parties to determine their rights and duties even though there controversy has not advanced to the point where harm has occurred and legal relief may be necessary 21

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27
Q

________ is not a court of record and therefore doesn’t keep a transcript of proceedings conducted.

A

courts of limited jurisdiction 29

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28
Q

In Personam Jurisdiction is based on…

A

the residence, location, or activities of the defendant 30

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29
Q

Forum selection clause

A

clause requiring parties to settle disputes in a particular state 35

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30
Q

Diversity Jurisdiction

A

Subject matter jurisdiction:

  • case is between citizens of different states
  • the amount exceeds $75,000 35
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31
Q

federal question jurisdiction

A

Subject matter jurisdiction: when the case arises under the Constitution, laws, or treaties of the U.S.

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32
Q

The principal place of business for determining jurisdiction is disputes is determined by the __________

A

Nerve center approach - where the corporation has their headquarters 38

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33
Q

summons

A

Notice to the defendant that they will be sued 40

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34
Q

pleadings include these 3 things in when parties file in court:

A
  • complaint
  • answer
  • reply (in some states) 40
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35
Q

Affirmative defense

A

A successful affirmative defense enables the defendant to win the case even if all allegations in the complaint are true. This is provided in the “answer” 40

36
Q

demurrer

A

Motion to dismiss for failure to state a claim upon which relief can be granted (usually because no law allowing a victim to recover damages) 41

37
Q

deponent

A

person being deposed 41

38
Q

interrogatories

A

written questions directed to the other party (usually 30 day time limit) 41

39
Q

request for admission

A

One parties written demand that the other party admit or deny, in writing, certain statements of supposed fact or of the application of the law to fact (usually 30 day time limit) 41

40
Q

pretrial conference

A

meeting between the judge and parties of a lawsuit in which the judge try to get the attorneys to:

  • agree to stipulate, or agree to, the resolution of certain issues to simplify trial
  • agree to settle and avoid trial altogether 43
41
Q

directed verdict

A

takes verdict away from the jury and provides judgment to one party. Usually used when evidence presented by one party will only lead to one outcome. 45

42
Q

Judgment notwithstanding the verdict

A

When one party wins a judgment, EVEN though the jury verdict is NOT in favor of them.

  • usually used if the moving party previously motioned for a directed verdict.
  • Same standard used to decide directed verdicts. 45
43
Q

Class action

A

allows 1 or more persons to sue on behalf of themselves an all other who have suffered from the same wrong 46

44
Q

______ have original jurisdiction over class actions in which the amount in controversy exceeds _____ and any member of the of the plaintiff class resides in a different state than the defendant.

A

federal district courts, $5 million 47

45
Q

Alternative Dispute Resolutions

A
  • settlement
  • arbitration
  • court-annexed arbitration
  • mediation
  • summary jury trial
  • minitrial 50
46
Q

arbitration

A

submission of a dispute to neutral, non-judicial third party who issues a binding decision 51

47
Q

arbitration clause

A

requires a party to settle disputes through arbitration 51

48
Q

court-annexed arbitration

A

court ordered civil suit to be diverted into arbitration versus trial 54

49
Q

mediation

A

neutral third party helps the parties reach a resolution but can NOT make decisions. Mediation agreement is drawn up that is enforced under contract law principles 54

50
Q

summary jury trial

A

mock jury trial that helps litigants with vastly different ideals a simulation of what would happen in actual trial in hopes of settlement 54

51
Q

mintrial

A

abbreviated “private trial” where litigants present their case to panel, an attorney or possibly a retired judge. The advisor offers their opinion on the case and then the parties attempt to negotiate a settlement. 54

52
Q

Which amendment supports federalism

A

10th amendment 59

53
Q

3 main congressional powers

A
  • regulate interstate commerce (commerce clause)
  • lay and collect taxes
  • spend for the general welfare 61
54
Q

process of incorporation

A

Almost all bill of rights provisions now applied to the states 71

55
Q

means end test

A

the courts balance of between and individuals rights and the social needs that may justify their suppression 72

56
Q

what are the 3 means end tests

A
  1. rational basis test: Government action need only have a reasonable relation to the achievement of a legitimate government purpose to be constitutional
  2. Intermediate scrutiny: ex; sex discrimination
  3. Full strict scrutiny: the challenged law must be necessary to the fulfillment of a compelling government purpose 72
57
Q

does a corporation have a full first amendment protection?

A

The Supreme Court says yes 73

58
Q

commercial speech is provided _____ protections

A

intermediate level of first amendment 82

59
Q

non commercial speech (i.e.: books, movies, magazines) is _________ protected

A

FULLY 82

60
Q

commercial speech

A

Speech that proposes a commercial transaction 79

61
Q

commercial speech that unlawful or misleading receives _____ protection

A

NO 82

62
Q

4 part test to determine constitutionality of commercial speech restriction

A
  1. it must be lawful and not misleading
  2. whether the asserted governmental interest is substantial
  3. whether the regulation directly advances the asserted governmental interest
  4. must be not be more extensive than necessary to serve that interest 81
63
Q

procedural due process

A

One is entitled to adequate notice of the government action to be taken against him and to some sort of fair trial or hearing before that action can occur 83

64
Q

Substantive due process

A

The rules that set standards of behavior for organized social life (ex: arguments that adultery should not be a crime) 83

65
Q

equal protection against discrimination is protected under the

A

14th amendment “equal protection clause”

66
Q

contract clause

A

no state shall…pass any…law impairing the obligation of contracts 89

67
Q

preemption

A

federal law hold supremacy over state law 91

68
Q

Takings clause (4 elements)

A
  1. property
  2. taking (often the governments condemnation of property)
  3. must be taken for PUBLIC USE
  4. property owner must receive JUST COMPENSATION 92
69
Q

Rights Theory

A

Certain INDIVIDUAL human rights are fundamental and must be respected by other humans. As an actor, each of us face a moral compulsion not to harm the fundamental rights of others. 101

70
Q

Justice Theory

A

a just distribution of societies resources by which a society’s benefits and burdens are allocated fairly among its members 102

71
Q

Utilitarianism

A

Maximizing utility means achieving the highest level of satisfaction over dissatisfactions. Focus is on society as a whole. 103

72
Q

Profit Maximization

A

Requires a decision-maker to maximize a business’s long-run profits within the limits of the law…. a Business acting in one’s selfish interests 104

73
Q

Non Sequitur

A

A conclusion that does not follow from the facts or premises one sets out. The speaker is missing the point or coming to an irrelevant conclusion 117

74
Q

appeals to pity

A

this argument generates support for a proposition by focusing on the victims predicament. 118

75
Q

false analogies

A

since something is like something else in one or more ways, is also like it another respect 118

76
Q

Begging the question

A

When an arguer takes for granted or assumes the thing that she is setting out to prove. This is Circular Reasoning. (ex: you should tell the truth because lying is wrong) 118

77
Q

Argumentum ad Populum

A

an emotional appeal to popular believe, values, or wants. The fallacy in this argument is the assumption something is true because many or all people want it. 118

78
Q

Bandwagon Fallacy

A

an argument that we should or should not do something merely because one or more other people or firms do or do not do it 119

79
Q

Argument ad Baculum

A

And arguments that uses threats or fear to bolster it’s position 119

80
Q

Argument ad Hominem

A

This tactic attacks the speaker, not the validity of their reasoning 119

81
Q

Argument from Authority

A

This arguments relies on the quality of an expert or person in a position of authority, not the quality of the experts or person of authority’s argument. 120

82
Q

False Cause

A

This fallacy results from observing 2 events a concluding that there is a casual think between them when there is no such link 120

83
Q

The Gamblers Fallacy

A

The mistaken belief that independent prior outcomes affect future outcomes 120

84
Q

Reductio ad Absurdum

A

Carries an argument to its logical end, without considering whether it is an inevitable or probable result. “if we let you do it, we have to let everyone do it” 121

85
Q

Appeals to Tradition

A

Because something has been done a certain way in the past, it should be done that same way in the future 121

86
Q

The Lure of the New

A

Opposite of Appeals to Tradition; the idea that we should do or buy something because it is “just released” or “improved” 121

87
Q

Sunk Cost Fallacy

A

An attempt to recover invested time, money, and other resources, by spending still more time, money, or other resources 121

Business Law I (7 decks)

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