Business Law Ch 1-4

Jurisdiction*(2)

"Juris" (law) "diction" (to speak) is the power of a court to hear a dispute and to "speak the law" with regard to a controversy and render a decision that is legally binding on the parties to the dispute(the right and power to interpret and apply the law)

Stare decisis

"Let the decision stand"the principle that cases should be decided in ways consistent with similar prior cases. Promotes consistency & fairness. 1. that decisions made by higher court are binding on lower courts, 2. that a court should not overturn its own precedents unless there is a compelling reason to do so

What is Law?term-4

1. A body of enforceable rules governing relationships among individuals and between individuals and their society 2. provides stability and predictability so that people know how to order their affairs 3. Citizens must be able to know what is legally right and wrong and the consequences/sanctions associated with wrongdoing 4. May be unwritten principles of behavior established by a nomadic tribe 5. All rules have in common is, the establish rights, duties, and privileges that are consistent with the values and beliefs of their society or its ruling group

Primary Sources of American Law

1. Constitutional Law 2. Statutory Law 3. Ordinances (statutory law includes this)

Business & Law

1. In order for business to function efficiently it must have stability and predictability which the law provides 2. Must consider if it is legal and ethical 3. Laws and relations affect virtually all business activities 4. Hiring and firing, workplace safety, contracts

When there is no precedent?*

1.Cases of "first impression" where no precedents exist. They will first look at persuasive authorities, precedents from other jurisdictions for guidance. 1.Positive Law (constitutions, Statutes, Etc 2.Public policy" governmental policy based on widely held societal values 3.Widely held social Values

subject matter

1.Constitution or statue defines a courts subject matter jurisdiction 2.A courts subject matter jurisdiction may be limited by: a.Amount in controversy b.Nature of the controversy

Case Law

1.Doctrines and principles announced in cases-governs all areas not covered by statutory law or administrative law 2.Rules of law announced in court decision create case law precedent 3.Judicial interpretation of constitutional and statutory authority 4.Case law is part of the common law tradition

Federal agencies

1.Executive branch include numerous executive agencies a.FDA is in the US department of health and human services b.Executive agencies are subject to the authority of the president, who has the power to appoint and remove their officers 2.Independent regulatory agencies a.At the federal level, such as Federal trade commission, Securities and Exchange Commission, and the federal communications commission. b.The president has less power and people serve terms and cannot be removed unless just case

Positive Law

1.Written law of a particular society a.U.S constitution b.Florida statues c. IRC

Standing to Sue*(2)

A Party must have suffered a legal injury and have a sufficient "stake in the controversy Whether standing exists, in turn, will depend in pat on whether there is justiciable controversy- that is, a real and substantial controversy, not ont that is moot, hypothetical, or adademic

Diversity of Citizenship*(2)

A basis for federal court jurisdiction over a lawsuit that involves citizens of different states or (more rarely) citizens of a U.S. state and citizens or subjects of a foreign country. The amount in controversy must be at least $75,000 before a federal court can take jurisdiction in such cases.

Analogy

A comparison between two things, typically on the basis of their structure and for the purpose of explanation or clarification. Try to find a solution to a case by looking as others to compare

Administrative Agency (AG)

A federal, state, or local government unit established to perform a specific function. Administrative agencies are created and authorized by legislative bodies to administer and enforce specific laws. Rules are issued by AG that affect businesses operations, capital structure and financing, hiring and firing, relations with employees and unions, and how they manufactures and markets its products. Environmental protection acts

Syllogism

A form of deductive reasoning consisting of a major premise, a minor premise, and a conclusion.

The Appeal*(3)

A party may appeal a verdict based on any legal issue, motion/court ruling before or during trial. Appellant must have legitimate background for appeal(ie:Legal error) Either party may appeal judgment if colorable basis for exists ( eg: winning party may challenge judicial cap on award of damages imposed by the trial judge)

Appellant

A person who applies to a higher court for a reversal of the decision of a lower court

citation

A reference to a publication in which a legal authority-such as a statute or a court decision-or other source can be found

Legal Realism

A school of legal thought of the 1920s and 1930s that generally advocated a less abstract and more realistic approach to the law, an approach that takes into account customary practices and the circumstances in which transactions take place. This school left a lasting imprint on American jurisprudence.

Historical School

A school of legal thought that emphasizes the evolutionary process of law and looks to the past to discover what the principles of contemporary law should be.

Dissenting Opinion

A separate opinion in which a judge dissents from (disagrees with) the conclusion reached by the majority on the court and expounds his or her own views about the case.

Concurring Opinion

A written opinion by some of the judges of a court which agrees with the majority of the court but might arrive there in a different manner.

Complaint and answer*(3)

Accompanied by the summons usually the summons is on the top.Pleading are used to begin a lawsuit. What are the names of two initial pleadings? Once the plaintiff has filed her complaint or petition she must have each defendant

Legal Concentrations:term-81

Administrative, admiralty, adoption, banking, bankruptcy, business, civil rights, debtor & creditor, workers compensation etc.

Freedom Of Speech*(4)

Afforded highest protection by courts. The 1st amendment safeguards from most forms of gov regulation of speech including: Symbolic speech(expressive conduct, including gestures, movements, and clothing) Corporate political speech( companies may use unlimited corporate dollars to advertise political views Also ensures freedom of religion and press Also protects certain types of expressive speech like Burning draft cards, picketing, distributing flyers, and political contributions

United States Code (U.S.C)

All of the thousands of statutes passed by Congress are collected together and organized by subject. The collection is called the _________.; Collection of laws passed by the United States Congress

Chancellor

An adviser to the king at the time of the early king's courts of England. Individuals petitioned the king for relief when they could not obtain an adequate remedy in a court of law, and these petitions were decided by the chancellor.

damages

An amount of money the court orders a defendant to pay the plaintiff

Constitutional law*

Any law(local, State, or Federal) in conflict with U.S Constitution, if challenged will be declared unconstitutional and will not be enforced. The 10th amendment to the constitution reserves in the states all powers not granted to the federal government. All States have own constitution which is the supreme law as far as its state law is concerned

Persuasive Authority

Any primary or secondary source of law a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute

General Jurisdiction

Authority of a court to hear a wide range of cases

Courts of Equity*

Award equitable relief, administered by chancellors appointed by the king, Provides relief when "no adequate remedy of law" EG: Makaing somebody perform under a contract ie "specific Performance"Formal chancery courts, grant unique remedies. These remedies include specific performance (ordering a party to perform an agreement as promised), injunction (ordering a party to cease engagement) and rescission (cancel the contract obligation). remedies granted in the equity courts were known as "remedies in equity"

Court of law*

Award legal damages. Called "king's court" judges appointed by the king, award wronged parties money property, or other valuable compensation

judge made law

Common law, body of principles and doctrines that form the common law emerged over time as judges decided legal controversies

Substantive Law

Consists of all laws that define, describe, regulate, and create legal rights and obligations. DDRC

Administrative Law

Consists of those rules and procedures established by regulatory agencies.

Opinions

Contains the courts reasons for its decision, the rules of law that apply, and the judgement

Motion for summary judgment*(3)

Dispositive motion where court may grant only if no material disputed facts-question of law only. The movant and respondent typically support their motion for summary judgment and reply in opposition, respectively, by attaching one or more affidavit, copies of relevant documents revealed through discovery, and excerpts from depositions taken during "discovery"

Arbitration*(2)

Dispute resolution utilizing a neutral third party or panel chosen by court, agreed to by parties, or both, who read and hear parties' arguments, consider evidence and render an award(decision) Arbitrator is usually an expert or well respected government official.

Limited Jurisdiction

Exists when a court's authority to hear cases is restricted to certain types of claims, such as tax claims or bankruptcy petitions

Natural Law

God's or nature's law that defines right from wrong and is higher than human law

Public Policy

Governmental policy based on widely held societal values

Bankruptcy courts

Handle only bankruptcy proceedings, which are governed by federal bankruptcy law

Equitable maxims

Judges are guided by general statement of equitable rules

Common law*

Kings courts sought to establish a uniform set of customs for England. This set of uniform duties/rules/customs came to be known as common law, a body of rules that applied throughout England. Spread to all British colonies including the US and continues to develop from the decisions of the courts today

Statutory Law

Law enacted by Congress, or by state legislatures or local legislative bodies. also includes local ordinances

Criminal Law

Law that defines and governs actions that constitute crimes. Generally, the (...) law has to do with wrongful actions committed against society for which society demands redress.

cyberlaw

Law that is intended to govern the use of computers in e-commerce and the Internet

Arbitration Clause*(2)

Many contracts include an arbitration clause- provides that any dispute arising out the contract will be submitted to arbitration, rather than to a courtin a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

Separation of National Governments Power*(4)

National government provides checks and balances among three branches: Legislative(congress):Create laws Executive( President/Agencies): Enforce Laws Judicial(Federal Courts):Interpret Laws

Cross examination*(3)

Questioning of a witness during a trial or during the taking of a deposition, by the party opposed to the one who produced the witness.

Constitutional Powers Of Government* (4)

Regulatory powers of states per the 10th amendment. Police powers to ensure order, safety, and morals

Regional Reporters

Reporters published by Westlaw that print cases from various states' appellate and supreme courts. They are organized into 7 regions.

Administrative Rules

Rules and regulations adopted by the federal administrative agencies are initially published in the Federal Register, a daily publication of the U.S govt.

Unprotected Speech*(4)

Slander/libel(defames or harms another persons good reputation Obscenity: criminal under several statues depending on nature of content Online Obscenity- Childerns internet protection act (2000) etc Fighting words (is gauged to threaten or incite violence

State and local agencies

State agencies like State pollution.....Federal agency regulations take precedence over conflicting state regulations

Judge & Justices

Supreme court or trial court is called Justices. Court of Appeals are called Judge

U.S Constitution* (4)

Supreme law of the US Neither congress, any state, or local government may pass legislation in conflict with constitution

Restatements of the Law

The American Law Institute has drafted and published compilations of the common law, which generally summarizes the common law rules followed by most states.

Unanimous Opinion

The Supreme Court rules on a case in which all justices agree on the ruling

Direct Examination*(3)

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

Appellee

The party against whom an appeal is taken—that is, the party who opposes setting aside or reversing the judgment.

Law suit (who is suing who??)

The party bringing a lawsuit is called the petitioner and the party being sued is referred to as the respondent

Judicial Review*

The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch. Necessary part of the checks and balances that characterize our federal government

Discovery*(3)

The process by which parties obtain info from the opposing party prior to trial Admissions: Written requests to admit truth of facts related to case Deposition: Questioning a potential witness of the opposing party before trial to obtain relevant info Other forms include request for production, interrogatories, and physical/mental forms

Jurisprudence

The study of law or laws in a nation or state. Judges function is not to make laws but to interpret and apply them

Cases on point

These are previously decided cases that are as similar as possible to the one under consideration; used in deciding how the rules of law apply to the particular facts of a case

Alternative Dispute Resolution* (2)

Trials are very expensive and sometimes take many months to resolve. Alternative dispute resolution (ADR) methods are usually less expensive, relatively quick and leave more control with the parties involved

Ordinances

Under the Statutory Law. passed by municipal or county governing units to govern matters not covered by federal or state law. EX: land use, noise, building and safety codes

Uniform Laws

Uniform model laws for states to consider adopting. Developed to counter problem of conflicting state statutes. National Conference of commissioners on Uniform State laws (NCCUSL) formed by lawyers in 1892

Precedential Hierarchy*

Us Constitution- supreme law of the land Federal statute State Statute Common Law(ie case law precedent) Societal values and public policy if no governing authority (eg ethics)

Complaint*(3)

When a lawsuit is first filed , served on the defendant, how the defendant knows they're being sued . Severed on the states: Plaintiff's claim/theory for relief Plaintiff's basis for courts jurisdiction over subject matter and plaintiff Plaintiff's version of facts Plaintiff's Position regarding legal authority entitling relief Plaintiff's prayer:Court relief

Reporters (reports)

Where cases are published

Precedent 2 types*

a decision that is used as authority for deciding subsequent cases involving the same or similar issues Precedent may be controlling/ binding or persuasive a.Controlling- decisions made by higher courts in same jurisdiction b.Persuasive- decision made by higher courts in other jurisdictions

Sociological School

a school of legal thought that views the law as a tool for promoting justice in society

Majority Opinion

a statement that presents the views of the majority of supreme court justices regarding a case

Remedies

a. If one person wronged another in some way, the kings court could award a compensation. Courts that awarded compensation are known as courts of law and the remedies were called remedies at law i. Land ii. Items of value iii. Money b. Today, the remedy at law takes the form of monetary damages: an amount given to a party whose legal interests have been injured c. When someone wanted more than a remedy the courts could do nothing

Court must follow when deciding a dispute

a. Must follow constitution, statutes and ordinances that govern the issue b. Must follow precedent: Prior court decisions that constitute binding precedent in the courts jurisdiction

Basic steps in legal reasoning:

a.What are the key facts and issues? b.What rules of law apply to the case? c.How do the rules of law apply to the particular facts and circumstances of this case? i. Case on point: previously decided cases that are similar as possible to the one under considerations. Use three common forms of reasoning 1.Deductive reasoning (syllogistic reasoning): a logical relationship involves a major premise, a minor premise, and a conclusion. 2.Linear reasoning: proceeds from one point to another, with the final point being the conclusion. 3.Reasoning by analogy: compare facts in the case and at hand to the facts in precious cases and, to the extent the extent that the patterns are similar to apply the same rule of law to the present case. d.What conclusion should be drawn?

Defense

an argument raised by the defendant (the party being sued) indicating why the plaintiff (suing party) should not obtain the remedy sought

Recross-Examination*(3)

an examination by the other side's attorney that follows the redirect examination.

Binding authority

any source of law that a court must follow when deciding a case

Corporate contacts

considered legal persons, courts use the same principles to determine whether it is fair to exercise jurisdiction over a corporation

In rem jurisdiction

court jurisdiction over a defendants property. if some owns property in one state but lives in another

Legal Positivism

holds that there is no higher law than that created by legitimate governments and that such laws must be obeyed, even if they appear unjust or otherwise at odds with natural law

Counterclaims*(3)

if the defendant asserts a counterclaim, the plaintiff must file a reply or will be defaulted on counterclaim Upon counter claim being filed---- Plaintiff is plaintiff in original suit and a counter defendant in counterclaim Defendant is defendant in original suit and counter plaintiff in the counterclaim

Case Citations

information that tells the reader the name of the case, where it can be located, the court that decided it, and the year it was decided.

In personam jurisdiction

personal jurisdiction over any person or business that resides in a certain geographic area

case point

previously decided cases that are similar as possible to the one under considerations. Use three common forms of reasoning 1.Deductive reasoning (syllogistic reasoning): a logical relationship involves a major premise, a minor premise, and a conclusion. 2.Linear reasoning: proceeds from one point to another, with the final point being the conclusion. 3.Reasoning by analogy: compare facts in the case and at hand to the facts in precious cases and, to the extent that the patterns are similar to apply the same rule of law to the present case.

Redirect examination*(3)

questioning after cross- examination, in which the attorney for the witness testifying may ask the same witness other questions to overcome effects of the cross-examination.

Statutes of limitations

reasonable time, of course, varies according to the circumstances of the case. After the time expired, no action (lawsuit) can be brought, no matter how strong the case was

Legal reasoning

reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to a specific facts or circumstances of the case. Through legal reasoning judges harmonize their decisions with prior court decisions as required by the doctrine of state decisis Basic steps (IRAC format) a. Issue b. Rule c. Analysis/application d. Conclusion-decision

Procedural Due Process*(4)

requires that any procedures relating to a government decision to take life, liberty, or property must be made fairly Must afford prior notice and the opportunity to be heard by an impartial decision maker Procedure must be fair and equitable

Procedural Law

set of rules governing how all aspects of a court case are conducted, including the events that occur before, during, and after the trial. established by substantive law

Probate Courts

state courts that handle only matters relating to the transfer of a person's death, including issues relating to the custody and guardianship of children

State Codes

state laws passed by legislatures, contains the states criminal laws, laws for incorporation, partnerships and contract laws

Long arm statue

state statute that permits a state to obtain personal jurisdiction over nonresident defendants

alleges

states a fact yet to be proved

Laches

the equitable doctrine that bars a party's right to legal action if the party has neglected for an unreasonable length of time to act on their rights Encourage people to bring lawsuits while the evidence was fresh

Uniform Commercial Code (UCC)

was created by NCCUSL and American Law Institute in 1952, all 50 states have a uniform yet flexible, set of rules governing commercial transactions Assures business that valid contracts will be enforced