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PIMS - Business law > week 1 notes > Flashcards

week 1 notes Flashcards

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1
Q

What is law? (3)

A
  1. governmental rule
  2. prescribing conduct
  3. carrying a penalty for violation
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2
Q

distinguish religion, ethics, morality, social clubs, etc.

A

governmental rule

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3
Q

wrongful conduct as well as what is right

A

prescribing conduct

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4
Q

money damages/ deprivation of liberty

A

carrying a penalty for violation

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5
Q

each colony was a “nation” unto itself

  • negotitate treaties, currency, militia
  • had power/responsibility to see to the health and welfare of its citizens
  • police power to regulate an orderly society
A

colonies of the constitution

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6
Q

created the United States- federal government

  • states gave up certain rights
  • fed. gov. would defend the country with army and navy
  • fed. gov. would regulate commerce with foreign nations and among the states
  • fed. gov. would negotiate treaties
  • fed. gov. would enact uniform laws on bankruptcy

-all classified as enumerated powers

A

1787 constitutional convention

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7
Q

also known as statues or acts or codes

A

legislation

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8
Q
  • congress consists of the house of reps. and the senate
  • reps and senators are elected by citizens
  • there is both a federal congress and all but one state has a congress
A

laws written by congress

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9
Q

legislation passed by congress, both fed and state must be authorized by

A

constitution

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10
Q

legislation passed by congress but not authorized by the constitution will be declared ___ by the court system

A

unconstitutional

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11
Q

laws written by a local muicipality are classified as

  • local municipalities include counties, cities, boroughs, townships, villages
  • L. Municipalities may have council, committee which acts the same as congress
  • council can only write laws that are authorized by a state statue ex. zoning, noise, building codes, construction codes, open container laws, parking codes, etc.
A

ordinances

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12
Q

also known as judicial law, judge made law, precedent, stare decisis and common law.
-court system also know as judiciary

A

case law

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13
Q

how do judges make laws?

A
  1. judges determine facts, what happened?
  2. judge determines what law is controlling
    - is a statue addresses situation; judge must interpret statute and apply statute
    - if no statute, judge must locate prior decisions, or no prior decisions must consider local customs in the community that are followed
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14
Q

when a judge makes a decision based on community standards, and this decision is upheld by an appellate court, this becomes new law and is the purest form of common law

A

case law process

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15
Q

creation and operation of administrative agencies

-exist in both federal and state systems

A

administration law

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16
Q

what does the enabling act do?

A
  1. creates the agency
    - id’s the qualifications for the members to be selected
    - id’s purpose of the agency and the scope of the power of the agency
  2. empowers the agency
    - authorize the agency to pass rules and regulations
    - promulgation
    - legislative function
    - authorizes the agency to enforce the rules
    - executive function
    - authorizes the agency to conduct hearings
    - judicial function
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17
Q

process of passing rules and regulations

A

promulgation

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18
Q

if an agency performs an unauthorized act or acts in excess of its scope of authority the act is ___
- “can add too but not take away”

A

ultra vires

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19
Q

classification of crimes ; based on severity

A
  1. most serious ; felony
  2. less serious ; misdemeanor
  3. least serious ; petty offense also known as summary offense
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20
Q

felonies (6)

A
  1. homicide/manslaughter
  2. aggravated assault
  3. rape
  4. robbery
  5. theft
  6. drug offenses
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21
Q

unlawful taking of human life

A

homicide/manslaughter

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22
Q

serious injury usually caused by weapons

A

aggravated assault

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23
Q

unlawful sexual acts

A

rape

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24
Q

forcible taking property with the use of a weapon

A

robbery

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25
Q

unlawful taking of large amount of a persons property

A

theft

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26
Q

distribution of controlled substance

A

drug offenses

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27
Q

misdemeanors

A
  1. simple assault
  2. theft
  3. driving under the influence
  4. drug offenses
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28
Q

no weapon and injury not as serious as aggravated

A

simple assault

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29
Q

taking a lesser amount of a persons property

A

theft

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30
Q

operating a vehicle while impaired

A

driving under the influence

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31
Q

possession and use

A

drug offenses

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32
Q

petty offenses/summary offenses

A
  1. disorderly conduct
  2. public intoxication
  3. simple harassment
  4. theft of small amount of property
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33
Q

if found guilty of a crime; a conviction may include

  • payment of fine to the government
  • deprivation of liberty
A

penalty

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34
Q

deprivation of liberty (4)

A
  1. probation
  2. imprisonment
  3. death penalty
  4. deprivation of liberty
    - denied gun permit, denied right to vote, etc
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35
Q
  • protects the individual who suffers loss as a result of wrongful conduct
  • common law is much more relevant than in criminal cases
  • criminal penalties to the state in the criminal case and
  • civil remedies in the civil case to the harmed party
A

civil law

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36
Q

classification of civil actions (6)

A
  1. tort law
  2. contract law
  3. business law
  4. property law
  5. probate law
  6. domestic relations law
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37
Q

-wrongful private conduct by the tortfeasor who causes damage to the victim

A

tort law

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38
Q

person who causes the damages who commits the wrongful act

A

tortfeasor

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39
Q

classification of torts based on intent (3)

A
  1. intentional torts
  2. torts of negligence
  3. strict liability torts
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40
Q

intentional torts (7)

A

1assault and battery

  1. false imprisonment
  2. intention infliction of emotional distress
  3. defamation
  4. fraud
  5. trespass
  6. nuisance
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41
Q

assault and battery

A

swing and miss vs. swing and hit (hit is the battery)

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42
Q

false imprisonment

A

restricting a persons right to move freely through society i.e shoplifting

43
Q

intention infliction of emotional distress

A

outrageous conduct i.e joy riding roughly

44
Q

false statements injure a persons reputation

-slander ; spoken ; libel statement in writing

A

defamation

45
Q

false statements or concealments cause victim harm

A

fraud

46
Q

wrongful taking of a persons property real or personal

A

trespass

47
Q

interference with another persons use of their property

A

nuisance

48
Q

Torts of negligence

A
  1. conduct is not intentional
  2. 4 elements must be proven
    - duty, breach of duty, proximate cause and damages
  3. when negligence is committed by a professional providing service in their area of expertise the negligence is classified as malpractice
49
Q
  • law recognizes the value of life and thus imposes a duty on everyone to preserve life
  • duty may be slight but there is never not a duty
A

duty

50
Q

levels of duty (3)

A
  1. slight duty; trespasser
  2. higher duty; business invitee
  3. highest duty; medical doctor owes patient
51
Q
  • measured by the conduct of what a reasonable person would have done
  • standard cannot be below the reasonable person
  • standard may be higher based on the relationship of others
A

breach of duty

52
Q

proximity

  • the tortfeasors conduct is the legal cause of the harm suffered by the victim
  • based on foreseeability or danger zone of the victim
A

proximate cause

53
Q

must prove damages

  • medical expenses, lost wages, property damage, pain and suffering
  • if no damages, court awards nominal damages
A

damages

54
Q
  • distinguish intentional torts and torts of negligence
  • no defenses if the elements of strict liability are proven
  • elements are ;
  • law has determined the conduct is dangerous
  • tortfeasor performed the conduct
  • victim is injured
A

strict liability torts

55
Q

examples of strict liability

A
  1. harboring a dangerous animal
  2. using explosives
  3. products liability, restatement of torts 402A
56
Q

deals with the rights and duties and determines who “wins” legal action
-examples are contract law, criminal law, domestic relations law, probate law and property law, etc.

A

substantive law

57
Q

the mechanics of how legal actions flow through the court system

  • ex. file a legal action, respond to a complaint, obtain docs.
  • also includes laws of evidence
A

procedural law

58
Q

civil law developed the courts awarded money damages to compensate for harm caused by the party not following the law

  • money damages other name
  • sometimes money can’t compensate for harm
A

legal remedies

59
Q

only available if the legal remedy of money damages don’t compensate victim

  • example; specific performance
  • law considers all real property (land and things firmly attached) as unique
  • injunction
  • recission
A

equitable remedies

60
Q

compelling a party to stop doing some conduct, such as stalking

A

injunction

61
Q

allowing a party to terminate contract because of the fraud commited

A

recession

62
Q

where a valid contract concerning unique goods and the seller refuses to perform

A

specific performance

63
Q

the power of the court to hear a case

  1. subject matter jurisdiction
    - type of case
  2. personal jurisdiction
A

jurisdiction

64
Q

-only hear cases only set fourth in fed constitution

A

federal court

65
Q

-general jurisdiction; can hear any type of case

A

state court

66
Q

minimum contact with state in which court is located

example; residency, business in state, real property in state

A

federal and state jurisdiction

67
Q

district justice/magistrate

-limited jurisdiction, small $ amount, landlord tenant disputes, beginning criminal actions

A

inferior courts

68
Q

court of original general jurisdiction

  • original
  • first court where claims are filed
  • general (almost) any kind of case except fed bankruptcy
  • conducts trial
  • court of record
A

trial court

69
Q
  • trial courts specialize

- breaks into divisions; criminals, civil, family, probate

A

large county courts

70
Q
  • one judge conducts divisions on special days

- may share a judge with adjoining county

A

small county courts

71
Q

-review decisions of lower courts

A

appellate court

72
Q

2 levels of appellate court

A
  • superior court

- supreme court

73
Q
  • either party from trial court may appeal the decision of the trial court
  • superior court must accept the appeal as a “matter of right” of the parties
A

superior court

74
Q
  • decides which case will be accepted from appellate court

- either party from superior court may appeal the decision to this court

A

Supreme Court

75
Q

similar to state system

A

federal system

76
Q

not a separate court as in state system

  • magistrate has authority to hear most cases except can’t preside over felony cases
  • assigned cases from federal district court
A

federal magistrate

77
Q
  • federal system has several special courts
  • courts dealing with special types of cases ex. bankruptcy, fed, claims, taxes, etc.
  • court of record and court of original limited jurisdiction
A

federal trial court

78
Q

2 levels of appellate federal appellate courts

A
  1. U.S circuit court of appeals (matter of right)

2. U.S Supreme Court (second must request

79
Q

request to Supreme Court from federal appellate court, form is called

A

writ of certiorari

80
Q
  • courts resolve disputes
  • parties present to a court their dispute for resolution; this is process of litigation
  • litigation ends with a trial where jury/court make.a judgement
  • after judgement, additional litigation in appellate court system which attempts to assure the correct result was obtained
A

functions of the court

81
Q

this occurs in the trial court

  • judge facilitates jury in answering 3 questions which enables jury to make decision
  • judge instructs jury on applicable law
  • apply the law to the facts to reach a conclusion
A

trial

82
Q

in a trial without a jury, the judge determines the facts and the trial is referred to as __

A

bench trial

83
Q

after entry of judgement, either party may file an appeal

  • record of the trial is sent to appellate court for review
  • appellate court reviews record to see if ruling by judge is correct. Evidence presented supports the outcome of the case
  • correct law is applied and outcome is just
  • appellate court has 3 options; affirm decision, reverse decision, or reverse and remand
A

the appeal

84
Q

record consists of all documents filed in the case, all evidence is presented

A

transcript of trial proceedings

85
Q

change the judgment but the court lack sufficient information to insert the proper result. case is remanded and sent back for another trial

A

reverse and remand

86
Q

sometimes the law allows or demands a new trial to be granted when the trial is appealed

A

appeal de novo

87
Q

party who initiates a civil action

-party who initiates a criminal action is the government, USA, commonwealth

A

plaintiff

88
Q

party against whom a legal action is brought whether action is civil or criminal

A

defendant

89
Q

alternative to litigation

  • used to save time and money
  • arbitration
  • mediation
A

Alternative dispute resolution ADR

90
Q

a person acting in a non-judicial capacity who makes a decision

A

arbitrator

91
Q

a person acting in a non judicial who facilitates a meeting between the parties attempting to have the parties reach a decision.
-if no decision is made, mediation ends

A

mediator

92
Q

steps in a civil court case in state court system

(5) before the trial

A
  1. plaintiff files the complaint (petition) ; document which initiaties a civil lawsuit
  2. plaintiff serves the complain accompanied by a summons
  3. defendant files a response
    - could be a motion, but defendant must file an answer
  4. when final answer are filed, pleadings cycle is completed
  5. next phase of trial is the period of discovery
93
Q

a notice given to a defendant, attaching the complaint and stating a time frame in which to respond

A

summons

94
Q

documents on the proceeding slide, i.e complaint, motions and answers are classified as ___

A

pleadings

95
Q

the formal and informal exchange of information between sides in a lawsuit

A

discovery

96
Q

parties answer questions voluntarily presented by the other party and information is exchanged

A

informal discovery

97
Q

witnesses/ parties are served a subpoena requiring their attendance before a court reporter and answer questions under oath

A

desposition

98
Q

desposition, interrogatories, and motion to produce documents/things

A

formal discovery

99
Q

written questions, served on witness/parties requiring the questions to be answered under oath

A

interrogatories

100
Q

motion served on witness/parties requiring production of tax returns, doctor reports, vehicle damages, etc.

A

motion to produce documents / things

101
Q

steps in a civil court case in state court system (8) during trial

A
  1. trial
  2. parties present evidence through use of testimony of witnesses and parties and documents and things
  3. after each side has presented, attorneys make closing arguments to jury/judge
  4. judge “charges” the jury with applicable law and explains how the law is to be applied to the facts as determined by jury
  5. after jury deliberates, they return with decision which is verdict
  6. judge reviews verdict and is filed as judgement
  7. appellate process occurs
  8. when time passes without appeal, judge declares judgement final
  9. execution occurs
102
Q

when judgement is final, the “winning” party uses a process known as __ to collect money judgement
-conducted in the state system by the sheriff

A

execution

103
Q

when sheriff takes possession of the assets and sells them at a sheriff sale

A

levy

PIMS - Business law (8 decks)

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