Business Law Chapter 1, 2, 3, 4

appeal

(law) a legal proceeding in which the appellant resorts to a higher court for the purpose of obtaining a review of a lower court decision and a reversal of the lower court's judgment or the granting of a new trial

IRAC Method of Legal Reasoning

1. Issue: What are the key facts and issues? 2. Rule: What rules of law apply to the case? 3. Application: How do the rules of law apply to the particular facts and circumstances of this case? 4. Conclusion: What conclusion should be drawn?

check court appeals hierarchy

1. Limited Jurisdiction Courts 2. Trial Courts 3. Appellate Courts 4. State Supreme Courts

voir dire

A French phrase meaning, literally, "to see, to speak." In jury trials, the phrase refers to the process in which the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

diversity citizenship

A basis for federal court jurisdiction over a lawsuit between: 1. citizens of different states 2. a foreign country and citizens of a state or different states or 3. Citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases

counterclaim

A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.

Forum selection clause

A clause in a contract that identifies the state law that will apply to any disputes that arise under the contract.

arbitration clause

A clause in 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.

stare decisis

A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.

courts of equity

A court that decides controversies and administers justice according to the rules, principles, and precedents of equity.

administrative agency

A federal, state, or local government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules to administer and enforce the acts.

early neutral case evaluation

A form of alternative dispute resolution in which a neutral third party evaluates the strengths and weakness of the disputing parties' positions; the evaluator's opinion forms the basis for negotiating a settlement.

public policy

A government policy based on widely held societal values and (usually) expressed or implied in laws or regulations

mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute. (mediator can suggest a resolution)

uniform law

A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting all or part of a uniform law.

motion for judgment on the pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

motion of judgment n.o.v

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.

negotiation

A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them. Usually just involves the clients and their attorneys.

remedy in inequity

A remedy allowed by courts in situations where remedies at law are not appropriate. Remedies in equity are based on settled rules of fairness, justice, and honesty, and include injunction, specific performance, rescission and restitution, and reformation

recission

A remedy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made; may be effected through the mutual consent of the parties, by their conduct, or by court decree.

affirmative defense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations.

positivist school

A school of legal thought centered on the assumption that there is no law higher than the laws created by the government. Laws must be obeyed, even if they are unjust, to prevent anarchy.

historical school

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

writ of certiorari

A writ from a higher court asking the lower court for the record of a case.

diversity jurisdiction

Plaintiff and Defendant are from 2 different states & the dollar amount in dispute is at least $75,000

case citations

After appellate decisions have been published, they are normally referred to (cited) by the name of the case; the volume, name, and page number of the state's official reporter

request for admissions

Request by one party to another party to admit truth of any discoverable matters. Response required w/in 30 days of service.

specific performance

An equitable remedy requiring the breaching party to perform as promised under the contract; usually granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique (for example, real property).

cyberlaw

An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.

legislative bodies

Congress, state legislators, city council

in rem jurisdiction

Court jurisdiction over a defendant's property.

in personam jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

principle of rights theory

Deciding if something is ethical by looking at how it affects others' rights.

general jurisdiction

Exists when a court's authority to hear cases is not significantly restricted. A court of general jurisdiction normally can hear a broad range of cases.

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

Uniform Commercial Code

Facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions.

equitable maxims

General propositions or principles of law that have to do with fairness (equity).

procedural law

Rules that define the manner in which the rights and duties of individuals may be enforced.

common law

That body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature.

jurisdiction

The authority of a court to hear and decide a specific action

natural law school

The belief that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. The natural law school is the oldest and one of the most significant schools of legal thought.

Kantian ethics

The belief that people should be treated as end and never as means to the ends of others. People are not instruments like a machine.

administrative law

The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.

Statutory Law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

civil law

The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.

arbitrability

The concept of being arbitrable. A grievance is arbitrable if it alleges a violation under the contract and if the contract terms allow it to be settled through arbitration.

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 his or her rights.

direct examination

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

appellant

The party who takes an appeal from one court to another.

judicial review

The process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch.

litigation

The process of resolving a dispute through the court system.

cross-examination

The questioning of an opposing witness during a trial

remedy

The relief given to an innocent party to enforce a right or compensate for the violation of a right.

standing to sue

The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she either has been injured or has been threatened with injury. The party must have been harmed, have causation, and there must be a potential remedy in order to sue.

case law

The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.

arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding. (Arbitrator imposes resolution)

deposition

The testimony of a party to a lawsuit or a witness taken under oath before a trial.

precedent

a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts

courts of law

a court in which the only remedies that could be granted were things of value, such as money damages. In the early English king's courts, courts of law were distant from courts of equity

statutes of limitations

a federal or state stature setting the maximum time period during which a certain action can be brought or certain rights enfosed

ordinance

a law passed by a local governing unit, such as a municipality or a county-- deal with matters not covered by federal or state law. Ordinances commonly have to do with city or county land use (zoning ordinances)

summary jury trial

a method of settling disputes in which a trial is held, but the jury's verdict is not binding. the verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial (essentially a mock trial designed to give each side an idea of how the case would go in a real trial)

congress

a national legislative body which was established by the Constitution of 1787 and is composed of the Senate and the House of Representatives.

reporters

a publication in which court cases are published or reported

federal question

a question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction

long-arm statuate

a state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have "minimum contacts" with that state for the statute to apply

legal realism

a type of legal jurisprudence based on the belief that judges should interpret laws in court cases based on the unique circumstances of each case, and societal and economic trends, as opposed to following past court cases or established legal rules

court-annexed arbitration

a type of non-binding arbitration required by some courts before the parties may proceed to trial. parties can reject award because they are "forced" into the arbitration.

Kant's categorical imperative

an act is only right if the motive or reason for which it is done can be imagined to apply equally to everybody (must know reason why

executive agencies

an administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments. Executive agencies are subject to the authority of the president, who has the power to appoint and remove their officers.

United States Code

an organized collection of every statute ever approved and put into action

persuasive authorities

any legal authority or source of law that a court may look to for guidance but need not follow when making a decision

secondary sources of law

books and articles that summarize and clarify the primary sources of law

original jurisdiction

courts of the first instance or trial courts-- the courts in which the lawsuits begin, trials take place, and evidence is presented

petitioner

in equity practice, the party who answers a bill or other proceeding

respondent

in equity practice, the party who answers a bill or other proceeding

exclusive jurisdiction

jurisdiction that exists when a case can be heard only in a particular court or type of court, such as federal court or a state court (ex: federal crimes, bankruptcy, copyright claims, lawsuits against the USA)

concurrent jurisdiction

jurisdiction that exists when two different courts have the power to hear a case and a party may choose which one depending on the relative advantages of one or the other. Ex: some cases can be heard in either a federal or state court.

criminal law

law that defines and governs actions that constitute crimes

case of first impression

no case involving the same issue has been decided by the specific state court

National Conference of Commissioners

organized in 1915 - appointed commissioners consider areas of law requiring uniformity and draft model legislation in the form of uniform codes, uniform acts, or uniform laws and they encourage their adoption by each of the states

primary sources of law

sources that establish the law. Include: 1. US constitution and constitution of various states 2. Statutory law, including laws passed by Congress, state legislatures, or local governing bodies 3. regulations created by administrative agencies, such as the food and drug administration 4. case law and common law doctrines

contingency fee

the fee paid to an attorney based on a percentage of the sum the client is awarded or settles for in a lawsuit

legal reasoning

the process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases

substantive law

Law that defines the rights and duties of individuals with respect to each other, as opposed to procedural law, which defines the manner in which these rights and duties may be enforced.

constitutional law

Law that is based on the U.S. Constitution and the constitutions of the various states.

doctrine of laches

Loss of legal rights because the failure to assert those rights in a timely manner

damages

Money sought as a remedy for a breach of contract or for a tortious act.

NCCUSL

National Conference of Commissioners on Uniform State Laws (issues uniform laws)

sliding scale standard

Used over an out of state defendant is proper (court has identified 3 types of internet business contacts) (1)substantial business conducted over the internet (with contracts and sales, for example) (2) some interactivity through a web site and (3) passive advertising

utilitarian ethics

Utilitarianism is results-based and says that the ethically right choice in a given situation is the one that produces the most happiness and the least unhappiness for the largest number or people

interrogatory

Written questions submitted by the lawyer for one party in a lawsuit to the other party

corporate contacts

because corporations are considered legal persons, courts use the same principles to determine wither it is fair to exercise jurisdiction over a corporation. It is usually subject to personal jurisdiction in the state in which it is incorporated, has its principal office, and/or is doing business. Minimum contacts requirement is usually met if the corporation advertises or sells its products within the state or places its goods into the "stream of commerce" with the intent that goods be sold in that state

appellate jurisdiction

cases are in appeal form or an order or a judgment of a trial court or lower court

first impression

cases for which no precedent exists

Restatements of the Law

generally summarize the common law rules followed by most states