Business Law 2361
Study guide fof the first Test
Terms
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- stare decisis
- used in common law systems to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet"
- In rem Jurisdiction
- a court's jurisdiction over the property of a defendent
- Positive Law Model
- Obey the law
- Anderson's 7-Step Model
- Facts, Ethical Issues, Alternatives, Stakeholders, Ethics screen of alternatives, Practical Constraints, Decision
- Professional Ethic
- Do only that which can be explained before a committee of your professional peers
- Newspaper Test/Disclosure Rule
- If your decision would shame you if everyone knew about it, it's not a good one
- The Tenth Amendment
- Reserved powers given to the state (people and state have power the national government may not assume)
- Equal Protection Clause
- A clause in the 14th ammendment that requires that states provide citizens "equal protection of the laws"
- Burden of proof
- Burden that is on the Defendant to show fraud actually took place.
- Stages of Litigation
- Pleadings, discovery, pre-trial, trial, post-trial appeals and motions, enforcement and collection of judgement (settlement can occur at any stage)
- Original jurisdiction
- The jurisdiction of courts that hear a case first, usually in a trail Courts determine the facts of a case under their original jurisdiction and evidence is presented
- Full Faith and Credit Clause
- A clause in Article IV, Section I, of the Constitution requiring each state to recognize the official documents and civil judgments rendered by the courts of other states.
- Subject Matter Jurisdiction
- Jurisdiction over the subject matter of a lawsuit.
- Rights Principle
- Everyone has a set of fundamental rights, how will my decision effect those rights?
- Venue
- Concerned with the most appropriate location for a trial. Venue in a civil case is usually where the defendant resides while venue in a criminal case is usually where the crime occurred.
- Intuition Ethic
- If it feels good, do it
- Appellate court's scope of review
- The ability to review the law, not the facts of a case
- Defendant
- the person or organization against whom a legal action is brought
- Privileges and Immunities Clause
- A clause in Article IV, Section 2, of the Constitution according citizens of each state most of the privileges of citizens of other states.
- Substantive due process
- Due process that requires that government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope.
- Standing
- authority to bring legal action because one is directly affected by the issues at hand
- Foreign Corrupt Practices Act
- U.S. law regulating behavior regarding the conduct of international business in the taking of bribes and other unethical actions.
- Federal Court System
- 1) U.S. district courts (trial courts of general jurisdictions) and various courts of limited jurisdictions, 2) U.S. courts of appeals (intermediate courts of appeals), and 3) the United States Supreme Court
- Utilitarianism
- Do what's best for the greater good
- Appellant
- the party who appeals a decision of a lower court
- Contingency fee
- a fee that is payable only if the outcome is successful (as for an attorney's services)
- Law Citations
- A referance to a publication in which a legal authority--such as a statute or a court decision--or other source can be found
- Equitable remedies
- Nonmonetary damages awarded for breach of contract when monetary damages would be inadequate or impracticable
- Appellee
- The party opposing an appeal from a lower court to a higher court.
- Commerce Clause
- The clause in the Constitution (Article I, Section 8, Clause 3) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.
- Summary judgment
- The power of a trial court to terminate a lawsuit before a trial has begun, on the grounds that no essential facts are in dispute.
- Federal Question Jurisdiction
- Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.
- Supremacy Clause
- a clause in Article VI of the U.S. Constitution that declares the constitution, laws, and treaties of the federal government to be the supreme law of the land to which judges in every state are bound regardless of state law to the contrary
- Plaintiff
- the party (person, group, or organization) who files the lawsuit
- Procedural due process
- Due process that requires that the government must give a person proper notice and hearing of the action before that person is deprived of his or her life, liberty, or property.
- Kantian Ethics
- If everyone did what I'm going to do, would the world be a better place?
- Blue Laws
- State or local laws that prohibit the performance of certain types of commercial activities on Sunday
- Personal Jurisdiction
- Refers to the Court's power or authority over the parties to the litigation, or the "person" involved (in personam jurisdiction)
- Directed verdicts
- a verdict handed down by a judge in a trial without consideration of the jury because the facts presented and the applicable law left no question as to the outcome necessary in the case.
- Legal Realism
- A school of legal thought, popular during the 1920's and 1930's, that left a lasting imprint on American judisprudence, Legal realists generally advocate a less abstract and more realistic and pragmatic approach to the law, an approach that would take into account customary practices and the circumstances in which transactions take place. Legal realism strongly influenced growth of the sociological school of judisprudence, which views law as a tool for promoting social justice.
- Historical School
- A school of legal thought that stresses the evolutionary nature of law and that looks to doctrines that have withstood the passage of time for guidence in shaping present laws.
- Mirror Test
- If I make this decision, will I be able to look at myself in the mirror tomorrow morning?
- Positivist Law School
- A school of legal thought centered on the assumption that there is no law higher then the laws created by the government. Laws must be obeyed, even if they are unjust, to prevent anarchy.
- Stakeholders Model
- Identifies stakeholders and their competing interests, recognizes validity of competing claims, lets stakeholders participate if possible, and accepts that any decision is likely to be a compromise
- Natural Law School
- One of the eldest and most significant schools of legal thought. Those who believe in natural law hold that there is a universal law applicable to all human beings. This law is discoverable through reason and is of a higher order then positive (national) law.
- Appellate jurisdiction
- The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved.
- Due Process Clause
- A clause to the Fifth and Fourteenth Amendments that says no person shall be deprived of "life, liberty or property" without due process of the law.
- Judgments nov
- are granted by a judge when, after the introduction of all evidence at trial, the judge believes that there is insufficient evidence to support a verdict in favor of the plaintiff but to avoid extensive after-trial procedures or the potential of a new trial, the judge allows the jury to consider the case.
- Monetary damages
- Dollar sums awarded for a breach of contract; "legal remedies"
- Diversity jurisdiction
- One of the two main types of civil cases that a United States district court has the power to hear. It involves a lawsuit between citizens of different states, in which at least one party makes a claim for more than $75,000.