Business Law Test 1

  1. Function of Law
    • ✗ keeping the peace- certain acts are crimes 
    • ✗ shaping moral standards- ex. discourage drug/alcohol use     
    • ✗promoting social justice- prohibit discrimination in employment     
    • ✗ maintaining the status quo- prevent forceful overthrow of the government    
    • ✗ facilitating orderly change- enacted only after considerable study/debate/input to the public     
    • ✗ facilitating planning- well designed laws make regulations    
    • ✗ providing a basis for compromise- settlement of cases prior to trial     
    • ✗maximizing individual freedom- bill of rights
  2. Sources of Law
    • ✗ the U.S. Constitution    
    • ✗ state constitutions     
    • ✗ federal & state statutes     
    • ✗ ordinances     
    • ✗ administrative agency rules & regulations    
    • ✗ executive orders    
    • ✗ judicial decisions by federal & state courts
  3. Precedent
    a rule of law established in a court decision. Lower courts must follow the precedent established by higher courts
  4. Stare Decisis
     Latin for “to stand by the decision.” Adherence to the precedent. If there is a ruling, follow the ruling.
  5. Federal Question Case
     U.S. Constitution, treaties, federal statutes/regulations  

      no dollar-amount limit
  6. diversity of citizenship cases
    prevents “home field” advantage
  7. Diversity of Citizenship
    • ▪    occurs if a non-federal question lawsuit involves
    • (1) citizens of different states or
    • (2) a citizen of a state and a citizen/subject of a foreign country  
    •  ▪    must exceed sum/value of $75,000  
    •  ▪    may be brought before state or federal court  
    •  ▪    must apply appropriate state law
  8. Concuring Opinion
    issued by a justice who agrees with the decision but not the reasoning preferred by other justices 
  9. Types of Court Decisions
    • ✗    unanimous: all justices voting agree about the outcome and reasoning used (precedent)    
    • ✗    majority: majority of the justices voting agree about the outcome and reasoning used (precedent)  
    •  ▪    majority if 5, 6, 7, 8 vote for the same outcome, for the same reason   
    •  ✗    plurality decision: if a majority of the justices agree about the outcome of the case, but not the reasoning behind the outcome (not precedent)
  10. Standing to Sue
    some stake in the outcome of a lawsuit
  11. in personam jurisdiction (personal jurisdiction):
    jurisdiction over the parties to a lawsuit
  12. long-arm statute:
    a statute that extends a state's jurisdiction to nonresidents who were not served a summons within the state. Extends the jurisdiction of a state to cover a non-resident who had minimum contacts within the state
  13. in rem jurisdiction
    • jurisdiction to hear a case because of jurisdiction over the property of the lawsuit    
    • ✗    rem = “thing”
  14. quasi in rem jurisdiction (attachment jurisdiction):
    • jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect the judgment by attachment property of the defendant located in another state     
    • ✗    put a lean on property/cannot sell without paying off the suit
  15. venue
    a concept that requires lawsuits to be heard by the court with the jurisdiction that is nearest that location in which the incident occurred or where the parties reside
  16. discovery
    • 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 trial     
    • ✗    prevents surprises, allows parties to thoroughly prepare for trial, preserve evidence, saving court time, promoting the settlement of the case
  17.     Deposition
    • oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed   
    •  ✗    person giving the deposition is the deponent     
    • ✗    can be given voluntarily or pursuant to subpoena (court order)
  18. interrogatories
    • written questions submitted by one party to another party    ✗    questions must be answered in writing within a stipulated time     
    • ✗    attorney usually helps prepare answers
  19. Production of Documents
    a request by one party to another party to produce all documents relevant to the case prior to the trial
  20. physical or mental examination
    a court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries
  21. pretrial motion
    • a motion a party can make to try to dispose of all or part of a lawsuit prior to the trial     
    • ✗    motion for judgment on the pleadings, motion for summary judgment
  22. motion for judgment on the pleadings
    a motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts
  23. motion for summary judgment
    • a motion which asserts that there are no factual disputes to be decided by the jury and that the judge can apply the law to the undisputed facts and decide the case without a jury.     
    • ✗    Motions are supported by affidavits, documents, and deposition testimony
  24. settlement conference (pretrial hearing)
    a hearing before a trial in order to facilitate the settlement of a case
  25. litigation:
    the process of bringing, maintaining, and defending a lawsuit
  26. alternative dispute resolution (ADR)
    • methods of resolving disputes other than litigation   
    •  ✗    a.k.a- nonjudicial dispute resolution
  27. types of ADR (name 3 types)
    •  ✗    arbitration    
    • ✗    negotiation  
    • ✗    mediation    
    • ✗    mini-trial    
    • ✗    fact-finding
  28. 8 phases of trial by jury  
    •  ✗    (1) jury selection- pool of potential jurors is usually selected from voter or automobile registration lists. Both lawyers ask questions to weed out jurors with potential bias.     
    • ✗    (2) opening statement- each attorney is allowed to give a statement to the jury. Summarizes the main factual and legal issues of the case and describes why (s)he believes the client's position is valid.     
    • ✗    (3) plaintiff's case- bears the burden of proof     
    • ✗    (4) defendant's case- proceeds after the plaintiff has concluded his/her case. (1) rebut the plaintiff's evidence, (2) prove any affirmative defenses, (3) prove any allegations contained in the defendant's cross-complaint   ✗    (5) rebuttal and rejoinder- after the attorney has finished calling witnesses, the plaintiff's attorney can call witnesses and put forth evidence to rebut the defendant's case    
    • ✗    (6) closing arguments- each party's attorney can call witnesses and put forth evidence to rebut the defendant's case   
    •  ✗    (7) jury instructions, deliberation, and verdict- are closing arguments are completed, judge reads jury instructions (charges) to the jury, jury retires to the jury room to deliberate, they then reach a verdict     
    • ✗    (8) entry of judgment- after the jury has returned its verdict, in most cases the judge will enter a judgment to the successful party. Court may overturn the verdict if it find bias or jury misconduct
  29. Commerce Clause
    • a clause of the U.S. Constitution that grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes”    
    • ✗    greater  impact of business than any other provision in the Constitution     
    • ✗    Congress's most broad power    
    • ✗    applies to interstates/boats/planes
  30. substantive due process
    a category of due process that requires that government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope
  31. procedural due process:
    • a category of due process that requires that the government give a person proper notice of hearing of the legal action before that person is deprived of his or her life, liberty, or property.     
    • ✗    right to be heard
  32. Bill of Rights:
    the first 10 amendments to the Constitution that were added to the U.S. Constitution in 1791
  33. Equal Protection Clause:
    a clause that provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws”
  34. Privileges and Immunities Clause:
    a clause that prohibits states from enacting laws that unduly discriminate in favor of their residents
  35. intentional torts
    a category of torts that requires that the defendant possessed the intent to do that act that caused the plaintiff's injuries
  36. libel:
     a false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on
  37. slander
    oral defamation of character
  38. fraud (intentional misrepresentation):
     the intentional defrauding of a person out money, property, or something else of value
  39. four elements are required to find fraud: 
    • ✗    wrongdoer made a false representation     
    • ✗    wrongdoer had knowledge that the representation was false and intended to deceive the innocent party     ✗    innocent party justifiably relied on the misinterpretation    
    • ✗    innocent party was injured (or harm/damages, includes financial)
  40. negligence
    a doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
  41. negligence lawsuit:
    • negligence lawsuit:    
    • ✗    defendant owed a duty of care to the plaintiff    
    • ✗    defendant breached this duty of care    
    • ✗    plaintiff suffered injury    
    • ✗    defendant's negligence act was the cause of the plaintiff's injuries   
    • ✗    defendant's negligent act was the proximate cause of the plaintiff's injuries (was foreseeable)
  42. actual cause (causation in fact):
     the actual cause of negligence. A person who commits a negligent act is not liable unless actual cause can be proven- (“but for” test)
  43. proximate cause (legal cause):
    a point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions- (foreseeability)
  44. negligent infliction of emotional distress
     a tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct
  45. negligence per se:
    • a tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care     
    • ✗    plaintiff in such an action must prove:    
    • ▪    1) a statute existed   
    •  ▪    2) the statute was enacted to prevent the type of injury suffered    
    •  ▪    3) plaintiff was within a class of persons meant to be protected by the statute
  46. res ipsa loquitur
    •  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 to prove that he or she was not negligent
Card Set
Business Law Test 1
Notes for Business Law Test 1