GBS205 Second Try

That which must be obeyed and followed by citizens subject to sanctions or legal consequences; a body of rules of action or conduct prescribed by controlling authority and having binding legal force.

The philosophy or science of law.

Law developed by judges who issued their opinions when deciding cases. The principles announced in these cases become precedent for later judges deciding similar cases.

This refers to law that is almost exclusively code or statute-based, such as the Napoleonic Code in France. Civil law traces its origins to Romanic law and gives little discretion to judges in the interpretation of the law.

The supreme law of the United States.

Legislative, Executive and Judicial.

A compact made between two or more nations.

Written law enacted by the legislative branch of the federal and state governments that establishes certain courses of conduct that must be adhered to by covered parties.

Laws enacted by local government bodies such as cities and municipalities, countries, school districts, and water districts.

An order issued by a member of the executive branch of the government.

A decision about an individual lawsuit issued by federal and state courts.

A rule of law established in a court decision. Lower courts must follow the precedent established by higher courts.

A set of moral principles or values that governs the conduct of an individual or a group.

Latin "to stand by the decision". Adherence to precedent.

A theory of ethics in which a person looks to an outside source for ethical rules or commands.

A moral theory that dictates that people must choose the action or follow the rules that provides the greatest good to society.

A moral theory that says that people owe moral duties that are based on universal rules, such as the categorical imperative "Do unto others you would have them do unto you"

A moral theory that holds that individuals must decide what is ethical based on their own feelings as to what is right or wrong.

A theory of social responsibility that says a corporation must consider the effects its actions have on persons other that its stockholders.

1. Keep the peace
2. Shape moral standards
3. Promote social justice
4. Maintain the status quo
5. Facilitate orderly change
6. Facilitate planning
7. Provide a basis for compromise

Constitutions, treaties, statutes, executive orders, ordinances, administrative regulations, and case law.

The judge looks at the wording of the law and, based upon the wording and upon precedent, seeks a logical conclusion. If the law does not address a particular issue, the judge stops and does not seek to construct law beyond that point. The downside is that this approach may permit the existence of an injustice if the law does not logically cover a particular wrongdoing. (Schools that would fall under this: The Analytical School, The Law and Economics School.)

The judge looks at the intent of the law’s authors and seeks to reach a conclusion based upon legislative intent. The downside is it can often be very difficult to determine legislative intent and judges may "cherry-pick" comments of legislators who favor the judge’s biases. (Schools that would fall under this: The Historical School and The Natural Law School.)

The judge sees the law as a living document that can be altered by the judge in order to modernize its coverage and/or achieve justice. The downside to this is such alterations are the job of the legislature and not unelected judges. (Schools that would fall under this: The Sociological School, The Command School, and The Critical Legal Studies School.)

"Do unto others as you would have them do unto you" assumes that you possess self-respect, are not masochistic, and your desired treatment is reasonable.

is nonjudgmental and leaves the question of what is ethical up to the individual

holds that business has a responsibility to solve social problems it didn’t cause. Under this theory, business interests are sometimes secondary to the solution of social problems.

involve a review by an independent auditor to ensure that the business is ethical both in its internal and external dealings.

holds that a business should obey the law, avoid doing harm to others, and compensate others when such harm is done.

considers how various stakeholders (i.e., people, groups, or institutions) in a decision will be affected. This theory is a valuable component to ethical decision making and yet it can encounter problems due to conflicting stakeholder interests and multiple stakeholders.

An official notice that the Supreme Court will review a case.

A plaintiff’s stake in the outcome of a lawsuit.

Jurisdiction over the parties to a lawsuit.

Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit.

A statute that extends a state’s jurisdiction to nonresidents who were not served a summons within the state.

A concept that requires lawsuits to be heard by the court with jurisdiction that is neatest the location in which the incident occurred or where the parties reside.

The process of bringing, maintaining, and defending a lawsuit.

The paperwork that is filed with the court to initiate and respond to a lawsuit.

A statute that established the period during which a plaintiff must bring a lawsuit against a defendant.

A court order directing a defendant to appear in court and answer a complaint.

The document a plaintiff files with the court and serves on the defendant to initiate a lawsuit.

A defendant’s written response to a plaintiff’s complaint that is filed with the court and served on the plaintiff.

A legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to trail.

Oral testimony given by a party or witness prior to trail. The testimony is given under oath and is transcribed.

Written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time.

A motion that asserts that there are no factual disputes to be decided by the jury; in such a case, the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony.

A standard of persuasion the plaintiff must meet in order to win their case.

A form of ADR in which the parties choose an impartial third party to hear and decide the dispute.

A form of ADR in which the parties choose a neutral third party to act as the mediator of the dispute.

A form of mediation in which the parties choose an interested third party to act as the mediator of the dispute.

The fundamental law of the United States of America. It was ratified by the states in 1788.

The first ten amendments to the U.S. Constitution.

The U.S. form of government, in which the federal government and the 50 state governments share powers.

A system through which the U.S. Constitution prevents any one of the three branches of the government from becoming too powerful.

Each branch of the federal government has separate powers. The powers are: A) The legislative branch has power to make the law. B) The executive branch has power to enforce the law. C) The judicial branch has power to interpret the law.

When the states ratified the Constitution, they delegate certain powers to the federal government. These are called enumerated powers.

Those powers not granted to the federal government by the Constitution are reserved to the states.

A clause of the U.S. Constitution that establishes that the federal Constitution, treaties, federal laws, and federal regulations are the supreme law of the land.

The concept that federal law takes precedence over state or local law.

A clause of the U.S. Constitution that grants Congress the power "to regulate commerce with foreign nations, and amount the several states, and with Indian tribes."

Commerce that moves between states or that effects commerce between states.

Limited intrusive actions by state and local governments.

Speech used by businesses, such as advertising. It is subject to time, place, and manner restrictions.

Speech that is not protected by the First Amendment and may be forbidden by the government.

A clause that provides that a state cannot "deny to any person within its jurisdiction the equal protection of the law."

A test is applied to classification based on race.

A test that is applied to classification based on protected classes other then race (e.g. sex or age).

A test that is applied to classification not involving s suspect or protected class.

A type of due process that required that government statutes, ordinances, regulation, or other laws to clear on their face and not overly broad in scope.

A type of due process that requires that the government give a person proper notice and hearing of the legal action before that person is deprive of his or her life, liberty, or property.

A clause that prohibits states from enacting laws that unduly discriminate in favor of their residents.

courts that focus solely on the smaller dollar amount cases.

hear the more serious cases.

also called intermediate appellate courts because they are between the trial courts and the Supreme Court (i.e., intermediate) and they hear appeals from the trial courts (i.e., they are "appellate").

Parties who have lost at the appellate court level may appeal to this, the highest court in the state.

This is a very strong statement of the law. It means that all of the justices, including those who usually have strongly differing views of the law, have decided in favor of one side.

The majority wins but how large was the majority? Was it 5-4, as noted above, or a much stronger 8-1 or 7-2?

A majority agreed on the outcome but not the reasoning. As a result, the law is muddled because the message is unclear and there is not a precedent that can be cited in future cases.

The lower court decision stands and there’s no precedent that can be relied upon by the lower courts.

will cover cases such as federal crimes, antitrust, bankruptcy, admiralty, patent and copyright, and suits against the United States. Those cases have to go to federal court.

This stage is broken into pleadings, discovery, dismissals, and pre-trial judgments, and settlement.

The party who is bringing the lawsuit (i.e., the plaintiff), files a complaint; a document that declares who is being sued, what are the facts, which law was violated, and what the plaintiff wants from the court.

An interested third party is chosen to mediate the dispute. For example, a respected friend to both sides is brought in.

A neutral third party is selected to mediate.

Both sides present their cases to a neutral judge in a condensed version of a trial.

A fact finder meets with both sides, reports on the findings, and possibly recommends a settlement.

A court-appointed referee will render a judgment that can then be appealed.

A third party hears both sides. In some arbitration arrangements, the parties are bound to the arbitrator’s decision. In others, it can be appealed to the court.

government and the states share power. Any powers that are not specifically delegated to the federal government are reserved for the states.

a limitation on the power of the federal government within the very structure of that government.

A wrong. There are three categories of torts; (1) intentional torts, (2) unintentional torts (negligence), and (2) strict liability

A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries.

(1) The threat of immediate harm or offensive contact or (2) any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary.

Unauthorized and harmful or offensive physical contact with another person. Direct physical contact is not necessary.

The intentional confinement or restraint of another person without authority or justification and without that person’s consent.

False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement or fact about the plaintiff and (2) the statement was intentionally or accidentally published to a third party.

Oral defamation of character.

A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on.

False statements about a competitor’s products, services, property, or business reputation.

Intentionally defrauding another person out of money, property, or something else of value.

A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for the emotional distress. Also knows as the tort of outrage.

A tort related to defective products in which the defendant has breached a duty of due care and caused harm to the plaintiff.

A point along a chain of events caused by a negligent party after which the party is no longer legally responsible for the consequences of her or her actions. Also called legal cause.

A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered injury but for someone’s negligence. The burden switches to the defendant(s) to prove that they were not negligent.

defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury.

A document that says a plaintiff who is partially at fault has his or her own injury cannot recover against the negligent defendant.

Liability without fault.

The liability of manufactures, sellers, and others for the injuries caused by defective products.

A tort doctrine that makes manufacturers, distributors, wholesalers, retailers, and others in the chain of distribution of a defective product liable for the damages caused by the defect, irrespective or fault.

All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufactures involved in a transaction.

Monetary damages that are awarded to punish a defendant who either intentionally or recklessly injured the plaintiff.

A defect that occurs when the manufacturer fails to (1) properly assemble a product, (2) properly test a product, or (3) adequately check the quality of a product.

A defect that occurs when a product is improperly designed.

A defect that occurs when a manufactured does not place a warning on the packaging of products that could cause injury in the danger is unknown.

An alternation or modification of a product by a party in the chain of distribution that absolves all prior sellers from strict liability. Also called intervening event.

A doctrine that applies to strict liability actions that says a plaintiff who is contributorily negligent for his or her injuries is responsible for a proportional share of the damages. Also called comparative negligence.

A violation of a statute for which the government imposes a punishment.

The most serious type of crime; inherently evil crime. Most crimes against the person and some business-related crimes are felonies.

A less serious crime; not inherently evil but prohibited by society. Many crimes against property are misdemeanors.

A crime that is neither a felony nor a misdemeanor that is usually punishable by a fine.

Guilty act the actual performance of a criminal act.

Evil intent the possession of the requisite state of mind to commit a prohibited act.

A crime that imposes criminal liability without a finding of mens rea (intent).

The charge of having committed a crime (usually a felony), based on the judgment of a grand jury.

A hearing during which the accused is brought before a court and is (1) informed of the charges against him or her and (2) asked to enter a plea.

The taking of another’s personal property other than from his or her person or building.

A threat to expose something about another person unless that other person gives money or property. Often referred as blackmail.

The fraudulent making or altering of a written document that affects the legal liability of another person.

The fraudulent conversion of property by a person to whom that property was entrusted.

A crime in which one person gives another person money, property, favors, or anything else of value for a favor in return. Often referred to as a payoff or kickback.

A crime that involves obtaining title to property through deception or trickery. Also knows as false pretenses or deceit.

A federal act that provides for both criminal and civil penalties for racketeering.

A situation in which two or more persons enter into an agreement to commit a crime and an overt act is taken to further the crime.

Any search and seizure by the government that violates the Fourth Amendment.

A warrant issued by a court that authorizes the police to search a designated place for specified contraband, articles, items, or documents. The search warrant must be based on probable cause.

A rule that says evidence obtained from an unreasonable search and seizure can generally be prohibited from interdiction at a trail or administrative proceeding against the person searched.

A rule that says a client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the client

A clause of the Fifth Amendment that protects persons from being tried twice for the same crime.

Rights, such as patents, copyrights, trademarks, trade secrets, trade names, and domain names that are very valuable business assets, federal and state laws protect intellectual property rights from misappropriation and infringement.

A product formula, pattern, design, compilation of data, customers list, or other business secret.

Protection for a product, process, machine, or invention. This can include improvements to existing products. It can also include processes and even living material such as a plant. Ideas cannot be patented.

A doctrine that says a patent may not be granted if the invention was used by the public for more than one year prior to the filing of the patent application.

Unauthorized use of another’s patent. A patent holder may recover damages and other remedies against a patent infringer.

Protection of the exclusive right to reproduce, publish, or sell an original work of expression. Note the word "work." There has to be an actual work. If Mary has an idea about a screenplay, she cannot obtain copyright protection for the idea until it is turned into a screenplay. Computer software can be copyrighted.

A distinctive mark, symbol, name, word, motto, or device that identifies the goods of a particular business

A doctrine that permits certain limited use of a copy right by someone other than the copyright holder without the permission of the copyright holder

A unique name that identifies an individual’s or company’s Web site.

consists of arrest, indictment, arraignment, and trial. Because of the potential severity of the punishment, each stage has protections for the accused. These are some of the protections

Probable cause (substantial likelihood that the person committed or is about to commit a crime) must be shown for the police to obtain an arrest warrant. The police can make warrantless arrests but those are still subject to the probable cause requirement later

This is the formal charge of the crime. It will have to be approved by either a grand jury or a magistrate.

After indictment, the accused is brought to the court for an arraignment proceeding in order to enter a plea of guilty, not guilty, or nolo contendere (no contest). The no contest plea does not admit guilt but accepts the penalty

criminal offenses associated with businesses. Such crimes can have very serious effects but they don’t involve physical harm.

the fraudulent conversion of property entrusted to a person. For example, an accountant takes money from her employer for personal use

includes giving money or something of value to a person in a position of trust in exchange for a favor.

obtaining title to property through deceit or trickery.

The Fifth Amendment protects a person from being forced "in a criminal case to be a witness against himself."

rule developed to prevent the use of illegally seized evidence and thus to encourage the police to follow the Constitutional protections

crimes committed over or related to the Internet

A promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty.

The manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that has assent to that bargain in invited and will conclude it.

A manifestation of assent by the offeree to the terms of an offer in a manner invited or required by the offer, as measured by the objective theory of contracts (Section 50 of the Restatement (Second) of Contracts).

Something of legal value given in exchange for a promise

A contract entered into by way of exchange of promises of the parties; "a promise for a promise".

A contract in which the offeror’s offer can be accepted only by the performance of an act by the offeree; a "promise for an act".

An agreement that is expressed in written or oral words

A contract in which agreement between parties has been inferred from their conduct.

An equitable doctrine whereby a court may award monetary damages to a plaintiff for providing work or services to a defendant even though no actual contract existed. Also called an implied-in-law contract.

A rule that states that an acceptance is effective when it is dispatched, even if it is lost in transmission.

The law holds that some people lack the ability to knowingly enter a contract. For example, a party who is mentally incompetent, a minor, or drunk would lack the capacity to enter into a contract

An act of a minor after the minor has reached the age of majority by which he or she accepts a contract entered into when he or she was a minor.

A contract that has a negative impact on society or interferes with the public’s safety and welfare.

A contract that provides that a seller of a business or an employee will not engage in a similar business or occupation within a specified geographical area for a specified time following the sale of the business or termination of employment.

The requirement that a party’s assent to a contract be genuine. Genuineness of assent is an issue in the areas of mistake, misrepresentation, duress, and undue influence.

An action to undo a contract.

A mistake made by both parties concerning a material fact that is important to the subject matter of the contract.

A mistake that occurs when both parties know the object of the contract but are mistaken as to its value.

A situation that occurs when one party threatens to do a wrongful act unless the other party enters into a contract.

A situation that occurs when one person takes advantage of another person’s mental, emotional, or physical weakness and unduly persuades that person to enter into a contract; the persuasion by the wrongdoer must overcome the free will of the innocent party.

A state statute that requires certain types of contracts to be in writing.

Land itself, as well as buildings, trees, soil, minerals, timber, plants, crops, and other things permanently affixed to the land.

A rule that says an executor contract that cannot be performed by its own terms within one year of its formation must be in writing.

A statute that says that contracts for the sale of goods costing $500 or more must be in writing.

A rule that says if a written contract is a complete and final statement of the parties’ agreement, any prior or contemporaneous oral or written statements that alter, contradict, or are in addition to the terms of the written contract are inadmissible in court regarding a dispute over the contract

The transfer of contractual rights by an obligee to another party.

A remedy intended to compensate a nonbreaching party for the loss of a bargain; these damages place the nonbreaching party in the same position as if the contract had been fully performed by restoring the "benefits of the bargain".

Foreseeable damages that arise from circumstances outside a contract. In order to be liable for these damages, the breaching party must know or have reason to know that the breach will cause special damages to the other party.

An agreement by the parties in advance that sets the amount of damage recoverable in case of breach.

A nonbreaching party is under a legal duty to avoid or reduce damages caused by a breach of contract.

Remedies that may be awarded by a judge where there has been a breach of contract and either (1) the legal remedy is not adequate or (2) the judge wants to prevent unjust enrichment.

The interactions that result in a valid contract are offer, acceptance, consideration, capacity, and legality.

a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty."

All elements of a contract are present

contract in name only but with no legal effect

At least one of the parties can avoid the contractual obligations

The contract cannot be enforced because there is a legal defense to its enforcement

Contracts for the sale of land
Contracts that cannot be performed within one year of the contract’s formation
Guaranty contracts where one party agrees to pay the debt of another
Contracts for the sale of goods costing $500 or more

means an event must occur or not occur in order for the obligation to perform to arise.

means that if a specific event occurs or does not occur then performance will be automatically excused

Put me back where I was before the breach.")

Compensate me for special foreseeable damages that resulted from the breach

Give me the damages that we agreed upon before the breach.")

Do what was promised in the contract.")

Let the court change the agreement to match the true intentions.

Please, Judge. Issue an order to stop the other party from irreparably harming me

An article of the UCC that governs the lease of goods.

The passing of title from a seller to a buyer for a price.

Tangible things that are movable at the time of their identification to the contract

A person who (1) deals in the goods of the kind involved in the transaction of (2) by his or her occupation holds himself or herself out as having knowledge or skill peculiar to the goods involved in the transaction.

A transfer of the right to the possession and use of the named goods for a set term in return for certain consideration.

The person who transfers the right of possession and use of goods under a lease.

The person who acquires the right to possession and use of goods under a lease.

A rule that says an open term can be "read into" a contract.

This rule states that a merchant who (1) offers to buy, sell, or lease goods and (2) gives a written and signed assurance on a separate form that the offer will be held open cannot revoke the offer for the time stated or, if no time is stated, for a reasonable time.

Legal, tangible evidence of ownership of goods.

A rule that says if the goods or tender of a delivery fail in any respect to conform to the contract, the buyer may opt either (1) to reject the whole shipment, (2) to accept the whole shipment, or (3) to reject part and accept part of the shipment.

A seller’s or buyer’s express or implied assurance to a buyer or lessee that the goods sold or leased meet certain quality standards.

A warranty that applies to food or drink consumed on or off the premises of restaurants, grocery stores, fast-food outlets, and vending machines.

A warranty that arises when a seller or lessor warrants that goods will meet the buyer’s or lessee’s expressed needs.

The sale of goods and services by computer over the Internet.

The act of registering Internet domain names of famous companies and people and hold them hostage by demanding ransom payments from the famous company or person.

An electronic "signature" which can be verified by a password, a smart card, or a digital reading of the iris or a fingerprint.

A contract that transfers limited rights in intellectual property and informational rights

A right that a licensor has to make amends under certain conditions after breaching a contract.

a model act setting up rules to protect both sides in computer information transactions