Business Law Exam 1

Long-arm statutes

A statute that enables a court to obtain jurisdiction against an out-of-state defendant as long as the defendant has sufficient minimum contacts within the state, such as committing a tort or doing business in the state

Statutory Law

The assortment of rules and regulations put forth by legislatures -statutes: legislative actions -acts can be found in the U.S. Code when they are passed by Congress or in the various state codes when they are enacted by state legislatures...they are a collection of all the laws in one convenient location

Civil Law

The body of laws that govern the rights and responsibilities either between persons or between persons and their government, it also involves remedies available when someone's rights are violated ex) private attorneys enforce these rights ex)Jack-in-the-box ordered to pay damages after a 2 year old child died of food poisoning from E. coli and several others became ill from eating the tainted meat

Criminal Law

The body of laws that involve the rights and responsibilities an individual has with respect to the public as a whole ex)prosecutors and/or government attorneys often enforce/defend these rights ex)prohibition against insider trading on the stock exchange

In personam jurisdiction

"jurisdiction over the person" The power of a court to require a party (usually the defendant) or a witness to come before the court. The court must have personal jurisdiction to enforce its judgments or orders against a party. It extends only to the state's borders in the state court system and across the court's geographic district in the federal system. -a court acquires in personam jurisdiction over a person (the plaintiff) when she files a lawsuit with the court. The court acquires jurisdiction over the person the plaintiff is suing (the defendant) when it gives him a copy of the complaint and a summons. -corporations are subject to in personam jurisdiction in 3 locations: the state of their incorporation, the location of their main offices, and the geographic areas in which they conduct business

In Rem Jurisdiction

"jurisdiction over the thing" The power of a court over the property or status of an out-of-state defendant when that property or status is within the court's jurisdiction area ex) suppose a Utah resident had not paid property taxes on a piece of land she owned in Idaho. Idaho courts would have in rem jurisdiction over the property. Thus, an Idaho state court has the power to seize the property and sell it to pay the property taxes in an in rem proceeding

Plaintiff's Doctrines: Negligence Per Se

"negligence in or of itself" applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs ex) if Ohio says prohibits the sale of alcohol to minors but a minor runs a red light a kills two people while drunk, the liquor store's violate of the statute established negligence per se on part of the store

Stare Decisis

"standing by the decision" when courts rely on precedent they are obeying stare decisis -rulings that are made in higher courts become binding precedent for lower courts

Plaintiff's Doctrines: Res Ipsa Loquitur

"the thing speaks for itself" -the defendant's negligence was the cause of the plaintiff's harm, even though there is no direct evidence of the defendant's lack of due care to establish, the plaintiff must demonstrate that: (1) the event was a kind that ordinarily does not occur in the absence of negligence (2) other responsible causes, including the conduct of third parties and the plaintiff, have been sufficiently eliminated (3) the indicated negligence is within the scope of the defendant's duty to the plaintiff ex) coca-cola bottle exploding case

Law

Rules of conduct in any organized society that are enforced by the governing authority of the community

Quasi in rem jurisdiction

"attachment jurisdiction" A type of jurisdiction exercised by a court over an out-of-state defendant's property that is within the jurisdictional boundaries of the court. It applies to personal suits against the defendant in which the property is not the source of the conflict but is sought as compensation by the plaintiff. ex) suppose Charlie ran a red light and collided with Jessica's car. Jessica suffered injuries and sued Charlie for $200,000. The court exercises quasi in rem jurisdiction over Charlie's vacation home by seizing it, selling it, and transferring $200,000 to Jessica to satisfy her judgment against Charlie.

Last-Clear-Chance Doctrine

used by the plaintiff when the defendant established contributory negligence. if the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent

Why study business law?

- The law affects every functional area of business -The law is an incredible tool for developing critical thinking -You will learn how to identify and head off potential legal problems, which will give you and your employer an absolute competitive edge -You WILL use business law throughout your careers, even if you never go to law school or never interact with a lawyer in your field

Purposes of the Law

-Providing order such that one can depend on a promise or an expectation of obligations -Serving as an alternative to fighting -Facilitating a sense that change is possible, but only after a rational consideration of options -Encouraging social justice -Guaranteeing personal freedoms -Serving as a moral guide by indicating minimal expectations of citizens and organizations

Federal Trial Courts

-US district courts -94, each district has at least one trial court of general jurisdiction -have the power to hear a wide range of cases and can grant almost any type of remedy -almost every case in the federal system begins in one of these courts -for cases concerning certain subject matter, congress has established special trail courts of limited jurisdiction

Causation

-actual cause (cause in fact): the determination that the defendant's breach of duty resulted directly in the plaintiff's injury -proximate cause (legal cause): the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions -foreseeability

Fourteenth Amendment

-applies whenever gov. treats certain individuals differently than other similarly situated individuals -to determine whether a law violates the equal protection clause, courts use diff. standards based on the nature of the rights (standards of scrutiny)

Disadvantages to Arbitration

-arbitration is being used more frequently resulting in a loss of some of the prior advantages such as efficiency and lower cost -appealing an arbitration award is so difficult, some scholars argue that injustice is more likely to occur -some individuals are concerned that by agreeing to give up one's right to litigate, one may be losing important civil rights or giving up important potential remedies without really understanding which rights are being given up -some scholars are afraid that if more and more employers and institutions turn to mandatory arbitration, it will become more like litigation -some people are concerned with the privacy of arbitration

Arbitration Hearing

-both parties present their cases to a neutral third party; parties may represent themselves or use legal counsel -they will introduce witnesses and documentation, cross-examine the witnesses, and offer closing statements -different from a trial because (1) the arbitrator often takes a much more active role in a hearing than a judge takes in a trial (2) the arbitrator can question the witness (3) no official written record of the hearing is kept (4) the rules of evidence applicable in a trial are typically relaxed in arbitration

Creation of Agency Relationship

-can be created only for a lawful purpose in the same way that contract cannot have an illegal purpose -almost anyone can act as an agent -a contract made by an agent is viewed as a contract between the principal and a third party -agency relationships can be created on the basis of any of the following terms of authority: (1) by expressed agency, or agency by agreement (2) by implied authority (3) by apparent agency, or agency by estoppel (4) by ratification

Jury selection; voir dire

-clerk of the courts randomly selects a number of potential jurors from the citizens within the court's jurisdiction -during voir dire the judge questions potential jurors to determine whether they are able to render an unbiased opinion in the case

Global and Comparative Law

-comparing and studying the laws in different countries -ex) Google illegal in China so the company had to restrict the content of searches

Duty

-defendant owes a duty to the plaintiff ex) if sam negligently hits Janice with his car and , as a result, Janice is lying in the street, sam has a duty to remove her from that dangerous position

Appellate Procedure

-either party may appeal the judge's decision on posttrial motions or on the final judgment -to be eligible for appeal, the losing party must argue that a prejudicial error or law occurred during the trial (a mistake so significant that it likely affected the outcome of the case) ex) if the judge accidentally allowed hearsay evidence -to appeal a case the attorney for the appealing party files a notice of appeal and then files a brief -the court then usually allows them to present oral arguments and the court will review them -has a bench with at least 3 judges, no jury, judges decide by majority vote -concurring opinion: judge agrees with the majority's decision but for diff. reasons -dissenting opinion: judges disagreeing with the majority -only one appeal is available in most cases

Fifth Amendment

-ensures that the government does not put citizens on trial except by the indictment of a grand jury -gives citizens the right not to testify against themselves (self-incrimination) -prevents gov. from trying citizens twice for the same crime (double jeopardy) -creates due process rights -states that gov. cannot take private property for public use without just compensation

Why would a business prefer ADR to litigation?

-faster and cheaper (avg. time from filing a complaint to judgment through litigation is 25 months) -a business may want to avoid the uncertainty associated with a jury decision -a business may want to avoid setting a precedent through a court decision -a business may prefer ADR because it is confidential -because many forms of ADR are less adversarial than litigation, it allows the parties to preserve a business relationship

Second Amendment

-finds that a well-regulated militia is necessary for security -states that government cannot infringe on citizens' right to bear arms

Advantage of Mediation

-helps the disputing parties preserve their relationships, this is attractive for businesses with a working relationship they would like to continue -finding creative solutions -high level of autonomy mediation gives the participants, makes them more committed to the agreement

The Trial

-if plaintiff seeks at least $20 in monetary damages the 7th amendment entitles the parties to a jury trial -some trials require a 12 person jury but most civil cases have a 6 person jury -trials have 6 stages: jury selection, opening statements, examination of witnesses, closing arguments, conference on jury instructions, and post trial motions

Criticisms of Mediations

-it creates an image of equal parties working toward an equitable solution and thereby hides power imbalances that can lead to the party with greater power getting an agreement of greater benefit -some people who enter mediation have no intention of finding a solution, but instead use mediation as a tactic to draw out the dispute

Advantages to Arbitration

-more efficient and less expensive -parties have more control over the process of dispute resolution -the parties can choose someone to serve as the arbitrator who has expertise in the specific subject matter -the arbitrator has greater flexibility in decision making than a judge has -arbitrators generally do not have to offer reasons for their decisions

Uses of Mediation

-most commonly used in collective bargaining disputes because it allows the workers to maintain a relationship with their employer while still having their needs addressed

The Examination of Witnesses and Presentation of Evidence

-plaintiff and defendant present their cases by examining witnesses and presenting evidence -if neither side presents a convincing case, the fact finder must rule in favor of the defendant, so the plaintiff presents their case first -the plaintiff's attorney questions the witness in direct examination -"hearsay" is testimony about what a witness heard another person say (not allowed) -opposing counsel may cross-examine the witness (can only ask questions related to their direct examination) only on cross-examination can the attorney ask leading questions (questions that imply a specific answer) -after cross examination the plaintiff's attorney may conduct a redirect examination, a series of questions aimed at repairing damage done by the cross examination

Fourth Amendment

-protects citizens from unreasonable search and seizure -ensures that government issues warrants only with probable cause -the right to be "secure in their persons, their homes, and their personal property"

First Amendment

-protects freedom of religion, press, speech, and peaceable assembly -ensures that citizens have the right to ask the government to readdress grievances -does not protect false statements about another that are injurious to that person's reputation (defamation)

The Arbitrator's Award

-provides a decision within 30 days of the hearing -the decision is called an award -they do not have to state any findings of fact, conclusions of law, or reasons to support the award, and they are not as bound by precedent -more likely to make a compromise ruling rather than a win-lose ruling -decision is legally binding, in certain cases it can be appealed

Taxing and Spending Powers of the Federal Government

-provides the power to "lay and collect taxes, duties, imports and excises" -taxes imposed by congress must be uniform across the states -the federal gov. can use tax revenues to provide essential services, encourage development of certain industries, discourage development of other industries

Sixth Amendment

-provides the right to a speedy public trial with an impartial jury, the right to know what criminal accusations a citizen faces, the right to have witnesses both against and for the accused, and the right to have an attorney

Ninth Amendment

-states that although the Bill of Rights names certain rights, this does not remove other rights retained by citizens -providing individuals with a right to privacy

Eighth Amendment

-states that gov. will not set bail at excessive levels -prohibits gov. imposition of excessive fines -prohibits cruel and unusual punishment

Third Amendment

-states that government cannot house soldiers in private residences during peacetime or during war except for provisions in the law

Seventh Amendment

-states that in common lawsuits in which the monetary values exceeds $20, citizens have the right to a trial by jury

Appeal to the U.S. Supreme Court

-the court hears on average only 80 to 90 cases each year -4 justices have to vote to hear the case (rule of 4)

Posttrial Motions

-the party who received the favorable verdict files a motion for a judgment in accordance with the verdict -the party who loses at trial can file a motion for a judgement notwithstanding the verdict, or judgment non obstante verdicto, asking the judge to issue a judgment contrary to the jury's verdict (they have a bunch of options)

Pretrial Motions

-the plaintiff or defendant may file a motion to conclude the case early, eliminate some claims, or gain some advantage -when a party files a motion with the court, the court sends a copy to the opposing attorney, who may respond to the motion, usually by requesting that they judge deny it

Defenses of defamation

-truth and privilege -absolute privilege: a special right given to certain individuals that says one cannot be sued for defamation for any false statements made, regardless of intent or knowledge of the falsity of the claim -conditional privilege: a party will not be held liable for defamation unless the false state was made with actual malice (made with either knowledge of its falsity or reckless disregard for its truth) -this privilege protects employers for giving honest statements about past employees for job recommendations -public figure privilege: a special right given to certain people that allows them to make any statements about public figures without being held liable for defamation for any false statement made without malice

Primary Forms of ADR: Negotiation

A bargaining process in which disputing parties interact informally, either with or without lawyers, to attempt to resolve their dispute

Treaty

A binding agreement between two states or international organizations -can be called international agreements, covenants, exchanges of letters, conventions, or protocols -generally negotiated by the executive branch, but to be binding it must be approved by 2/3 of the senate -similiar to a contract

Counterclaim

A claim made by the defendant against the plaintiff that is filed along with the defendant's answer -identical to a complaint, the defendant states the facts supporting his claim and asks for relief

Cost-Benefit Analysis

A economic school of jurisprudence in which all costs and benefits of a law are given monetary values. Laws with the highest ratios of benefits to costs are then preferable to those with lower ratios. -choosing the legal alternatives that maximized the ratio of benefits to costs

National Conference of Commissioners (NCC)

A group of legal scholars and lawyers formed to prevent problems with business activity difficulty when state laws vary. They regularly urge states to enact model laws to provide greater uniformity of law

Federal Preemption

A principle asserting the supremacy of federal legislation over state legislation when both pertain to the same matter -the state law is unconstitutional

Question of fact

A question about an event or characteristic in a case ex) whether a white student yelled racial slurs on a college campus -trial courts determine questions of fact...in a jury trial the jury decides -appellate courts can, overrules trial courts' decisions of questions of fact, but only when the trial court's finding was clearly erroneous or when no trial evidence supports the trial court's finding

Motion to Dismiss

A request by the defendant that asks a judge or a court in a civil case to dismiss the case because even if all the allegations are true, the plaintiff is not entitled to any legal relief. Also called demurrer -judges generally grant motions to dismiss only when it appears beyond a doubt that the plaintiff cannot prove any set of facts to justify granting the judgement she seeks.

Legal Positivism

A school of jurisprudence that holds that because society requires authority, a legal and authoritarian hierarchy should exist. When a law is made, therefore, obedience is expected because authority created it -the basis of the belief that legitimate political authority deserves our obedience when it issues a rule

Legal Realism

A school of jurisprudence that holds that context must be considered as well as law. Context includes factors such as economic conditions and social conditions -when ruling a case, judges need to consider more than just the law -judges who follow this are more likely to depart from past court decisions because our society is constantly shifting and evolving, they believe law can never be enforced wit hcomplete consistency

Identification with the Vulnerable

A school of jurisprudence that holds that society should be fair. Particular attention is therefore paid to the poor, the ill, and the elderly

Natural Law

A school of jurisprudence that recognizes the existence of higher law, or law that is morally superior to human laws -refers to the idea that there are certain ethical laws and principles that are morally right and above the laws devised by humans -suggests that individuals should have the freedom to disobey a law enacted by a majority of people if their individual conscience goes against he law and they believe the law is wrong

Historical School: Tradition

A school of jurisprudence that uses traditions as the model for future laws and behavior. Tradition is also called custom -we attempt to link our future behavior to the behavior of those who faced similar problems in earlier historical periods

Federalism

A system of government in which power is divided between a central authority and constituent political units -allocates power among the three federal branches of government with "checks and balances"

Precedent

A tool used by judges to make rulings on cases on the basis of key similarities to previous cases -Courts issue judicial decisions that often include interpretations of statutes and administrative regulations and these decisions contain the reasoning the courts use to arrive at their decisions -Courts sometimes make new rulings regarding the kinds of warnings companies should be required to provide to consumers and potential hard that could result from their products ex) McDonald's hot coffee negligence

Exclusive Federal Jurisdiction

Admiralty cases, bankruptcy cases, federal criminal prosecutions, lawsuits in which one state sues another state, claims against the US, and patent, trademark, and copy right cases.

4 Decisions an Appellate Court can Render

Affirming: accepts a lower courts judgment in a case that has been appealed Modifies: grants an alternative remedy in a case; rendered when the court finds that the decision of the lower court was correct but the remedy was not Reverse: overturns the judgment of a lower court, concluding that the lower court was incorrect and its verdict cannot be allowed to stand Remand: returns a case to the trial court for a new trial or for limited hearing on a specified subject matter; rendered when the court decides that an error was committed that may have affected the outcome of a case

Question of law

An issue concerning the interpretation or application of a law ex) whether the First Amendment protects the student's right to utter racial slurs -only judges can decide

Pretrial conference

An informal meeting of the judge with the attorneys representing the parties before the actual trial begins -possibly try and work out a settlement, if not they will work out the details of the trial (length, witnesses, etc.)

Courts of Last Resort- State

Appeals from the state intermediate courts of appeal lead cases to the state court of last resort. -Because half the states lack intermediate courts of appeal, appeals from trial courts in these states go directly to the state court of last resort

Intermediate Courts of Appeal- State

Exist in half the states. They usually have broad jurisdiction, hearing appeals from courts of general and limited jurisdictions as well as from state administrative agencies

Federal question cases

Federal question cases require an interpretation of the US Constitution, a federal statute, or a federal treaty ex) suppose a plaintiff alleges that a Florida campaign financing law violates his free speech rights. because this case raises a federal question, it falls under concurrent jurisdiction

Motion for Judgement on the Pleadings

In a civil case, a request made by either party, after pleadings have been entered, that asks a judge or a court to issue a judgement -request for the court to consider that all the facts in the pleadings are true and to apply the law to those facts

Peremptory Challenges

In a jury trial, the right of the plaintiff and the defendant in jury selection to reject, without stating a reason, a certain number of potential jurors who appear to have an unfavorable bias

Private Law

Law that involves suits between private individuals or groups ex) contracts, torts, property law, etc. ex) if a businessperson owns a computer equipment store and is delinquent in paying rent to the landlord, the dispute between them entails private law

Public Law

Law that involves suits between private individuals or groups and their government ex) constitutional law ex) if a computer store dumps waste behind its building in violation of local, state, or federal environmental regulations, the resulting dispute focuses on public law

Model or Uniform Laws

Laws created to account for the variability of laws among states. These laws serve to standardize the otherwise different interstate laws. -serve as a basis for some statutory law at the state level

Diversity-of-citizenship cases

Must satisfy two conditions: (1) the plaintiff does not reside in the same state as the defendant and (2) the controversy concerns an amount in excess of $75,000 -courts use the location of a party's residence to determine whether diversity of citizenship exists -a business may reside in two states: the state of its incorporation and the state of its principal place of business (usually the headquarters, the actual center of direction, control and coordination, that is, the nerve center and not simply an office where the corporation holds its board meetings)

Restatements of the Law

Summaries of common law rules in a particular area of the law. Restatements do not carry the weight of law but can be used to guide interpretations of particular cases -summaries of the common law rules in a particular area of the law that have been enacted by most states

Intermediate Courts of Appeal- Federal

The US circuit courts of appeal make up the second level of courts in the federal system -the US has 12 circuits including one for D.C. -each circuit court hears appeals from district courts in its geographic area

The Court of Last Resort, the Supreme Court

The US supreme court is the final appellate court in the federal system -9 justices who have lifetime appointments -hears appeals of cases from the court of last resort in a state system -the court will not hear cases considering questions of pure state law

Case Law/Common Law

The collection of legal interpretations made by judges. They are considered to be law unless otherwise revoked by a statutory law -significant for businesses because a modern business often operates in multiple legal jurisdictions (different locations so they interpret statutes differently)

Administrative Law

The collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions and statutes ex) SEC, FDIC, VA, etc.

Complaint and Summons

The complaint is a formal written doc. that begins a civil lawsuit; contains a plaintiff's list of allegations against the defendant along with the damages the plaintiff seeks The summons is a legal doc. issues by a court and addressed to a defendant that notifies them of the lawsuit and how and when to respond to the complaint. A summons may be used in both civil and criminal proceedings

The Pretrial Stage: Information Negotiations

The initial attempt to resolve a business dispute is usually informal: a discussion or negotiation among the parties to try and find a solution. -one party often seeks an attorney's advice if they cannot resolve their dispute

The Pretrial Stage: Pleadings

The first formal stage of a lawsuit -The plaintiff's attorney initiates a lawsuit by filing a complaint in the appropriate court (complaint states the names of the parties, the basis for the court's subject matter jurisdiction, the facts on which the plaintiff bases her claim, and the relief the plaintiff seeks) -Pleadings prevent surprises at trial; they allow attorneys to prepare arguments to counter the other side's claims

Constitutional Law

The general limits and powers of a government as interpreted from its written constitution

Subject-Matter Jurisdiction

The power of a court over the type of case presented to it -which court system may hear a particular case. they could fall under state jurisdiction, exclusive federal jurisdiction, or concurrent jurisdiction -federal or state court? -state courts have the power to hear almost any kind of case (almost unlimited subject matter jurisdiction) -federal courts only have the power to hear certain types of cases (more limited)

Judicial Review

The power of a court to review legislative and executive actions, such as a law or an official act of a government employee or agent, to determine whether they are constitutional

Alternative Dispute Resolution (ADR)

The resolution of legal problems through methods other than litigation -resolution of legal disputes through methods other than litigation, such as negotiation, mediation, arbitration, summary jury trials, minitrials, neutral case evaluations, and private trials

Trial court (courts of original jurisdiction)

They have the power to hear and decide cases when they first enter the legal system -the parties present evidence and call witnesses to testify -in most states, these courts are called courts of common pleas or country courts -in the federal system, these trial courts are called federal district courts

Appellate courts (courts of appellate jurisdiction)

They have the power to review previous judicial decisions to determine whether trial courts erred in their decisions -do not hold trials -review transcripts of trial court proceedings and occasionally consider additional oral and written arguments from each party

Search Warrant

a court order that authorizes law enforcement agents to search for or seize items specifically described in the warrant -only if they have probable cause (sufficient reason based on known facts to obtain a warrant)

Pure Comparative Negligence

a defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff's own negligence

Contributory Negligence

a defense to negligence whereby the defendant can escape all liability by proving that the plaintiff failed to act in a way that would protect them from an unreasonable risk of harm and that the plaintiff's negligent behavior contributed in some way to the plaintiff's accident -both the defendant and the plaintiff were negligent

Assumption of the Risk

a defense whereby the defendant must prove that the plaintiff voluntarily assumed the risk the defendant caused -express assumption: occurs when the plaintiff expressly agrees to assume the risk posed by the defendant's behavior -implied assumption: means that the plaintiff implicitly assumed a known risk

Other ADR Methods: Med-arb

a dispute resolution process in which the parties agree to start out in mediation and, if the mediation is unsuccessful on one or more points, to move on to arbitration - in some cases, the same neutral third party may participate in both the mediation and arbitration

A default judgement

a judgement in favor of the plaintiff that occurs when the defendant fails to answer the complaint (complaint and summons) and the plaintiff's complaint alleges facts that would support such a judgement

Reasonable Person Standard

a measurement of the way members of society expect an individual to act in a given situation

Standing

a person who has the legal right to bring an action in court -for a person to have standing, the outcome of a case must personally affect him or her ex) if you hire a landscaper to mow your lawn every week and he fails to show up every other week, you have standing to sue them. but if your friend hired the landscaper you lack the standing to sue on your friends behalf

Duty of Reimbursement and Indemnification

a principal's obligation to reimburse an agent for any expenses or losses incurred by the agent on the principal's behalf

Binding Arbitration Clause

a provision in a contract that mandates that all disputes arising under the contract must be settled by arbitration

Good Samaritan statutes

a statute that exempts from liability a person, such as a physician passerby, who voluntarily renders aid to an injured person but negligently, but not unreasonably negligently, causes injuries while rendering the aid

writ of certiorari

a supreme court order, issued after the court decides to hear an appeal, mandating that the lower court send to the supreme court the record of the appealed case -the court is most likely to issue a write in four instances: (1) the case presents a substantial federal question that the supreme court has not yet addressed (2) multiple circuit courts of appeal have decided the issue of the case in different ways (3) a state court of last resort has ruled that a federal law is invalid or has upheld a state law that may violate federal law (4) a federal court has ruled that an act of congress is unconstitutional - if they do not issue a writ, the lower court's decision stands

Nerve Center Approach

a test to determine a corporations "principal place of business" Usually its main headquarters, is a single place. The public often considers it the corporation's main place of business. -the test is relatively easier to apply and does not require courts to weigh corporate functions, assets, or revenues different in kind, one from the other

Primary Forms of ADR: Arbitration

a type of alternative dispute resolution in which disputers are submitted for resolution to private non official persons selected in a manner provided by the law or the agreement of the parties (the third party decides the outcome) -the resolution of a dispute by a neutral third party outside the judicial setting -frequently used in disagreements between employees and employers and is increasingly being used between consumers and businesses -often a voluntary process in that parties have a contractual agreement to arbitrate any disputes -lawyers, professors, and other professionals typically serve as arbitrators (honest, impartial, subject matter competence)

Alternative Dispute Resolution Act of 1998

act requires federal district courts to have an ADR program along with a set of rules regarding the program

Reply

after a counterclaim, the plaintiff admits, denies, or claims a lack of knowledge of the accuracy of the facts of the defendant's counterclaim

Motion for Summary Judgement

after the discovery process, this motion asserts that no factual disputes exist and that if the judge applied the law to the undisputed facts, her only reasonable decision would be in favor of the moving party. -the moving party may use affidavits (sworn statements from the parties or witnesses), relevant docs., and dispositions or interrogatories to support his motion

Avoidance

allows a principal to nullify any contract the agent negotiated

Private Trials

an ADR method in which a referee is selected and paid by the disputing parties to offer a legally binding judgment in a dispute

Summary Jury Trial

an abbreviated trial that leads to a nonbinding jury verdict

Duty of Performance

an agent's obligation to perform duties specified in the agency agreement and to do so with reasonable skill and care

Constructive Trust

an equitable trust imposed on a person who wrongfully obtains or holds legal right to property he or she should not possess -agent illegally benefits from the agency relationship

Battery

an intentional, unwanted, offensive bodily contact -an assault is often, but not always, followed by a battery ex) if the man actually hit you, this would constitute a battery -the most common defense to battery is self-defense (you cannot use a greater level of force than is being used against you) -defensive of others allows you to defend another by using the same degree of force that you could use to defend yourself -defense of property allows you to use reasonable force to defend your property from an intruder

Nominal Damages

are a small amount of money given to recognize that a defendant did indeed commit a tort in a case in which no compensable damages were suffered by the plaintiff

Punitive damages

are awarded to punish the defendant -given only when the defendant's conduct is extremely outrageous -purpose are to punish the defendant and to deter him and others from engaging in that kind of activity again

Torts against persons

are intentional acts that harm an individual's physical or mental integrity -assault and battery are the two most common

Desposition

attorneys examine a witness under oath -a pretrial sworn and recorded testimony of a witness that is acquired out of court with no judge present

Threshold Requirements

before a case makes it to court it must meet 3 requirements 1- standing 2- case or controversy 3-ripeness

Trespass to Personal Property

by temporarily exerting control over another's person property or interfering with the true owner's right to use the property -trespasser is responsible for damages cause to the property ex) if i take someones bike and use it for a week i have committed trespass to personalty. if i return the bike with a flat tire i will have to compensate the owner for the cost of repairing the tire

Ripeness

closely linked to case or controversy -A case is ripe if a judge's decision is capable of affecting the parties immediately -the issue of ripeness arises when one party claims that the case is moot--in other words, there is no point in the court's hearing the case because no judgement can affect the situation between the parties

Business Law

consists of the enforceable rules of conduct that govern commercial relationships

Employer-Independent Contractor Relationship

employers often hire, persons who are not employees, to conduct certain tasks -"a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control" ex) doctors, stockbrokers, lawyers, etc.

Apparent Agency

created by operation of law when one party, by his actions, causes a third party to believe someone is his agent when that person actually has no authority ex) boss says "i cant wait for jose to work here", clients place order with jose even though he didn't get hired because they believed that he was an employee

Compensatory Damages

damages designed to compensate the victim for all the harm caused by the person who committed the tort (can be called tortfeasor)

Agency

defined as a relationship between a principal and an agent -agency law is primarily state law

Venue

determines which trial court in the system will hear the case (1) the places where a hearing takes place. it's geographic location is determined by each state's statutes and based on where the parties live or where the even occurred or the alleged wrong was committed. (2) a legal doctrine relating to the selection of a court with subject-matter jurisdiction that is the most appropriate geographic location for the resolution of the dispute -usually the trial court for the county where the defendant resides is the appropriate venue -if a case involves property, the trial court where the property is location is also an appropriate venue -the plaintiff initially chooses from among the appropriate venues when she files the case -if the location of the court where the plaintiff filed the case is an inconvenience to the defendant or if the defendant believes it will be difficult to select an unbiased jury in that venue, he may request that the judge move the case by filing a motion for a change of venue

Closing Arguments

each attorney summarizes evidence from the trial in a manner consistent with his or her client's case -the plaintiff's attorney presents her closing argument first, followed by the defendant's attorney, and the plaintiff has the option to present a rebuttal of the defendant's closing argument

Opening Statements

each party's attorney explains to the judge and jury what facts he or she intends to prove, the legal conclusions to which these facts lead, and how the fact finder should decide the case based on those facts

Principal-Agent Relationship

exists when an employer hires an employee to enter into contracts on behalf of the employer ex) an athlete usually hires an agent to find and make agreements on behalf of the athlete to promote products

A request to produce documents

forces the opposing party to produce (turn over) certain information unless it is privileged or irrelevant to the case ex) photos, contracts, medical records, etc.

State Jurisdiction

has a broad range of jurisdiction; state courts have the power to hear all cases not within the exclusive jurisdiction of the federal court system. state courts have exclusive jurisdiction over certain cases, such as cases concerning adoption and divorce (most fall under state jurisdiction)

State Trial Courts

have the power to hear all cases over which the state court system has jurisdiction except those cases for which the state has established special trial courts of limited jurisdiction -most state have a trial court of general jurisdiction in each county

Strict Scrutiny

if a law prevents individuals from exercising a fundamental right, or if the law's classification scheme involves suspect classifications

Intermediate Scrutiny

if the law's classification scheme is based on gender or on the legitimacy of children

Fiduciary

is a person who has a duty to act primarily for another person's benefit ex) a lawyer is a fiduciary for his or her client

Negligence

is behavior that creates an unreasonable risk of harm to others -involve the failure to exercise reasonable care to protect another's person or property -plaintiff must prove 4 elements: 1. duty 2. breach of duty 3. causation-actual and proximate 4. damages

Defamation

is the intentional publication (communication to a third party) of a false statement harmful to an individual's reputation -anyone who republishes or repeats a defamatory statement is also liable for defamation -if the defamation is published in a written source is it known as libel (permanent form; tv, radio, print) -if defamation is made orally, it is slander

Service of Process

is the procedure by which courts present these documents to defendants

Strict Liability

liability in which responsibility for damages is imposed regardless of the existence of negligence. also called liability without fault (1) it involves a risk of serious harm to people or property (2) it is so inherently dangerous that is cannot ever be safely undertaken (3) it is not usually performed in the immediate community ex) keeping animals that have not been domesticated and shows a vicious propensity

Full Faith and Credit Clause

mandates that each state must recognize, respect, and enforce the public records, legislative acts, and judicial decision of other states ex) this clause protects wills, marriage and divorce decrees, and judgments in civil courts ex) although Massachusetts permits same-sex marriage, the full faith and credit clause does not require other states to recognize such marriages

Concurrent Federal Jurisdiction

means that both state and federal courts have jurisdiction over a case. covers federal-question and diversity-of-citizenship cases

Trespass to Realty

occurs when a person intentionally (1) enters the land of another without permission (2) causes an object to be placed on the land of another without the landowner's permission (3) stays on the land of another when the owner tells him to depart or (4) refuses to remove something he placed on the property that the landowner asked him to remove

Conversion

occurs when a person permanently removes personal property from the owner's possession and control (similar to stealing?)

Private Nuisance

occurs when a person uses her property in an unreasonable manner that harms a neighbor's use or enjoyment of his property. ex) flooding, vibrations, excessive noise, smoke, etc.

Assault

occurs when one person places another in fear or apprehension of an immediate, offensive bodily contact ex) you find a parking spot and an angry man yells "you took my spot if you don't move i'm gonna hit you so hard you won't remember what your car looks like" -if you know its a joke and start laughing there is no assault because there is not fear or apprehension (consent)

Fraudulent Misrepresentation

occurs when one uses intentional deceit to facilitate personal gain (mislead the other party) (1) a party knowingly, or with reckless disregard for the truth, misrepresented material facts and conditions (2) the party intended to have other parties rely on the misrepresentations (3) the injured party reasonable relied on the misrepresentations (4) the injured party suffered damages because of relying on the misrepresentations (5) a direct link exists between the injuries suffered and a reliance on the misrepresentations

Intentional Interference with Contract

occurs when someone intentionally takes an action that will cause a person to breach a contract that they have with another person -plaintiff must prove that (1) a valid and enforceable contract between the two parties existed (2) the defendant party knew of the contract and its terms (3) the defendant intentionally took steps to breach the contract (4) the plaintiff was injured as a result of the breach

Intentional Torts

occurs when the defendant takes an action intending that certain consequences will result or knowing certain consequences are likely to result -the intent at issue is not intent to harm but, rather, to engage in a specific act, which ultimately results in an injury, physical or economic, to another -it is assumed that people intend what could be considered the normal consequences of their actions ex) if you throw a rock it is assumed that you intended to hit someone with the rock -3 categories: torts against persons, torts against property, and torts against economic interests

Breach of Duty

once the plaintiff has established that the defendant owes her a duty of care, she must prove that the defendant's conduct violated that duty ex) drivers owe their passengers a duty of care to obey traffic signs, if they fail to stop at a stop sign they have breached their duty of care

Establishment Clause

one of the two provisions in the first amendment that protects citizens' freedom of religion. it prohibits (1) the establishment of a national religion by congress and (2) the preference of one religion over another or of religion over nonreligious philosophies in general

Equal Protection Clause

prevents states from denying "the equal protection of the laws" to any citizen. this clause implies that all citizens are created equal

Privileges and immunities Clause

prohibits states from discriminating against citizens of other states when those nonresidents engage in ordinary and essential activities -activities include buying and selling property, seeking employment, and using the court system -states may treat residents and non residents differently only when they have substantial reason for doing so ex) a state cannot prohibit nonresidents from opening restaurants in the state but states can allow state universities to charge high tuition for out of state students because they don't pay taxes that fund that university

Supremacy Clause

provides that the constitution, laws, and treaties of the US constitute the supreme law of the land, "any thing in the constitution or laws of any state to the contrary notwithstanding" -any state or local law that directly conflicts with the constitution, federal laws, or treaties is void ex) if a Missouri law permitted cell phone usage on airplanes, it would be unconstitutional according to the supremacy clause

Due Process Clause

providing that the government cannot deprive an individual of life, liberty, or property without a fair and just hearing -guarantees two types of due process: procedural and substantive

Intentional Torts Against Economic Interests

referred to as "business torts" are disparagement, intentional interference with contract, unfair competition, misappropriation, and fraudulent misrepresentation

Substantive Due Process

refers to the basic fairness of laws that may deprive an individual of her life, liberty, or property -gov. must have a proper purpose for enacting laws that restrict individuals' liberty or the use of their property

Agency by Ratification

relationship that arises when an individual misrepresents himself or herself as an agent for another party and that party accepts the unauthorized act - to be effective two requirements must be med (1) the principal must have complete knowledge of all materials facts regarding the contract (2) the principal must ratify the entirety of the agent's act Ex) sign contract for friend because you know they are interested in buying used car

Case or Controversy

requirement ensures that courts do not render advisory opinions -3 criteria are necessary: (1) the relationships between the plaintiff and the defendant must be adverse (2) actual or threatened actions of at least one of the parties must give rise to an actual legal dispute (3) courts must have the ability to render a decision that will resolve the dispute -courts can give final judgments that solve existing problems, they cannot provide rulings about hypothetical situations

Procedural Due Process

requires the gov. to use fair procedures when taking the life, liberty, or property of an individual or corporation

Takings Clause

requiring that when gov. uses its power to take private property for public use, it must pay the owner just compensation, or fair market value, for the property

Minitrial

similar to arbitration and mediation because it involves a neutral third party -a type of conflict resolution in which lawyers for each side present their arguments to a neutral advisor, who then offers an opinion as to what the verdict would be if the case went to trial. this decision is not binding

Disparagement

similar to defamation, but it is a business's or product's reputation that has been tarnished -slander of title if the statements relate to the ownership of the business property

Commercial Speech

speech that conveys information related to the sale of goods and services -courts analyze government restrictions on commercial speech according to a four part test established in a case, the test is called The Central Hudson Test (1) does the speech concern an illegal activity? is it misleading? (2)is the gov. interest served by the restriction on commercial speech substantial? (3) does the regulation directly advance the gov. interest asserted? (4) is the regulation more extensive than necessary to serve the gov. interest?

Political Speech

speech that is used to support political candidates or referenda. it is given a high level of protection by the first amendment as compared to other types of speech -this amendment protects corporate political speech to the same extent as ordinary citizens political speech

Slander per se

statements are considered so inherently harmful that general damages are presumed -kinds of statements considered slander per se are claims that an individual (1) has a loathsome, communicable disease (2) has committed a crime for which imprisonment is a possibility (3) is professionally incompetent or (4) if a woman, has engaged in sexual misconduct

Free-Exercise Clause

states that government cannot make a law "prohibiting the free exercise" of religion -issues of the establishment and the free exercise clause of ten arise in workplace settings

Contract Clause

states that government may not pass any "law impairing the obligation of contract" -prohibits the government from unreasonably interfering with an existing contract

Commerce Clause (article 1 section 8)

states that the US congress has the power to "regulate commerce with foreign nations, and among the several states, and with the indian tribes" -empowers the federal gov. and restricts the power of state govs. -the power of the US congress is not unlimited

Unfair Competition

the act of competing with another not to make a profit but for the sole purpose of driving that other out of business ex) if there is only one jewelry store in town, Mark cannot come in and make a store that makes no profits just to drive the other store out so then they can start to make profits

Duty of Loyalty

the agent has a responsibility to act in the interest of the principal -includes avoiding conflicts of interest and protecting the principal's confidentiality

Duty of Notification

the agent has to communicate offers from third parties, but the agent must also communicate any information the agent thinks could be important to the principal

Agency relationship

the agent is authorized to act for and on behalf of the principal, who hires the agent to represent him or her -the Restatement of Agency defines agency as "the fiduciary relation that results from the manifestation of consent by one person to another that the other shall act in his behalf and subject to his control, and consent by the other so to act" -consensual relationships formed by informal oral agreements or formal written contracts

Duty of Obedience

the agent must follow the lawful instruction and direction of the principal -if the principal gives unlawful or unethical instructions, the agent is not required to obey

Duty of Accounting

the agent must keep an accurate account of the transactions of money and property made on behalf of the principal

Modified Comparative Negligence

the defendant must be more than 50% at fault before the plaintiff can recover

Discovery

the discovery process enables the parties to learn about facts surrounding the case so that they are not surprised in the courtroom. three common discovery tools are interrogatories, requests to produce documents, and dispositions

Primary Forms of ADR: Mediation

the disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute (helps them decide the outcome) -third party usually has expertise in the area of dispute -each party writes a mediation brief on why it should win -concludes when the agreement between the parties is reached, usually put into the form of a contract and signed by the parties

Jury Instructions

the judge "charges the jury" by instructing the jurors on how the law applies to facts of the case

Rational-basis Test

the lowest standard of review; required a law to be designed to protect a legitimate state interest and be rationally related to that interest

Intentional Torts Against Property

the most common torts a businessperson might be involved with are trespass to realty, nuisance, trespass to personalty, and conversion

Early Neutral Case Evaluation

the parties select a neutral third party and explain their respective positions to this neutral, who then evaluates the strengths and weaknesses of the case

Damages

the plaintiff must have sustained compensable injury as a result of the defendant's actions -compensatory damages: damages intended to reimburse a plaintiff for their losses -punitive damages: imposed to punish the offender and deter others from committing similar offenses -gross negligence: an action committed with extreme reckless disregard for the property or life of another person

Duty to compensate

the principal has a duty to compensate the agent for services provided unless the parties have agreed that the agent will act gratuitously -the contract usually specifies the type and amount of compensations

Duty of Cooperation

the principal must assist the agent in the performance of his or her duties. furthermore, the principal can do nothing to interfere with the reasonable conduct of an agent ex) suppose suzy hired someone to sell her car for her. suzy must be willing to let the agent show her car to interested buyers

Duty to Provide Safe Working Conditions

this includes equipment, premises, and other working conditions -if the principal is aware of unsafe working conditions, they have a duty to warn the agent of the potential danger

Directed Verdict

this motion is a request for the court to direct a verdict for the defendant because even if the jury accepted all the evidence and testimony presented by the plaintiff as true, the jury would still have no legal basis for a decision in favor of the plaintiff -courts rarely grant motions for a directed verdict bc plaintiffs almost always present at least some evidence to support each element of the cause of action

Right of Removal

when a plaintiff files a case involving concurrent jurisdiction in state court, the defendant has a right of removal. this right entitles the defendant to transfer the case to federal court

Defendants Response: Affirmative Defense

when his or her answer admits that the facts contained in the complaint are accurate but also includes additional facts that justify the defendant's actions and provide a legally sound reason to deny relief to the plaintiff ex) a woman sued a man for battery because he punched her in the face, he might claim that he hit her only because she aimed a gun at him and threatened to shoot (self-defense)

Expressed Agency

when parties form an agency relationship by making a written or oral agreement -most common type of agency -agent has the authority to contract on behalf of the principal power of attorney: a doc that gives an agent authority to sign legal docs on behalf of the principal a durable power of attorney: a written doc, created by a principal, expressing his or her wishes for an agent's authority to be unaffected by the principal's subsequent incapacity (might become active only after a principal becomes incapacitated in any manner) gratuitous agent: one who acts without consideration; that is, the agent is not paid for his or her services

Indemnification

when sued by a third party, a principal may sue his agent to recover the amount assessed to the third party if the breach of contract is the agent's fault

Employer-Employee Relationship

whenever an employer hires an employee to perform some sort of physical service -employee is subject to the control of the employer -employees are considered agents of their employers -not all agents are employees though

Interrogatories

written questions that one party sends to the other to answer under oath