Enviromental Law - Exam 1
Flash Cards for Exam 1 in Business Law covering chapters 1-3
Terms
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- Pretrial conference
- A pretrial meeting between attorneys and the trial judge after discovery
- Interrogatories
- Written questions for which written answers are prepared and then signed under oath
- Question of fact
- Deals with what really happened in regard to the dispute being tried
- Administrative Law
- Consist of the rules, orders, and decisions of administrative agencies.
- Bankruptcy courts
- Handles only bankruptcy proceedings, which are governed by federal bankruptcy proceedings, which are governed by federal bankruptcy law
- Administrative Agencies
- A federal, state, or local government agency established to perform a specific function.
- United States Statutes at large
- When congress passes laws, they are collected in a publication titled United States Statutes at large
- Diversity of 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 of of 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,
- Precedent
- A decision that furnished an example or authority for deciding future cases involving similar legal proceedings
- Substantive Law
- Consist of all laws that define, describe, regulate, and create legal rights and obligations.
- What two types of Jurisdiction are needed to hear a case?
- Jurisdiction over the person (defendant) or property involved and jurisdiction over the subject matter of the dispute
- Cyberlaw
- Laws that deal specifically with issues raised by cyberspace transactions. For the most part, consist of traditional legal principles that have been modified and adapted to fir situations that are unique to the online world.
- Petitioner
- Party bringing a lawsuit in an equity proceeding
- Jury Verdict
- The jury renders its verdict, thus bringing the trial to an end.
- Sociological school of jurisprudence
- Views law as a tool for promoting justice in society. Jurist are more likely to depart from past decisions when using this school of thought.
- 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.
- Civil law
- Civil law spells out the rights and duties that exist between persons and between persons and their governments, and the relief available when a person's rights are violated.
- Stare Decisis
- A Latin phrase meaning "to stand on decided cases." Under this doctrine, judges are obligated to follow the precedents established within their jurisdiction
- Counterclaim
- The defendant denies the plaintiff allegations and sets forth his own claim towards the plaintiff
- Rules of evidence
- A series of rules that have been created by the courts to ensure that any evidence presented during a trial is fair and reliable.
- Adversarial system of justice
- Clients are allowed to represent themselves in court, however most parties to lawsuits hire an attorney
- UCC
- Uniform Commercial Code: Facilitates commerce among states by providing a uniform, yet flexible, set of rules governing commercial transactions.
- online dispute resolution (ODR)
- settling of disputes in online forums through the internet
- Appellant or Petitioner
- The party appealing the case
- Motion for summary judgement
- A motion that may be filed be either party which ask the court to enter judgement in his or her favor without a trial. Can be supported with evidence outside the pleadings.
- Historical school of legal thought
- Emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system. Look to the past to discover what the principles of contemporary law should be
- plaintiff
- The suing party
- Standing to sue
- In order to bring a lawsuit before a court a party must have a sufficient "stake" in a matter to justify seeking relief through the court system
- State Court Systems
- 1) local trial courts of limited jurisdiction 2) state trial courts of general jurisdiction 3) state courts of appeals 4) The states highest court (often called the state supreme court)
- Respondent
- Party being sued in an equity proceeding
- How is a case normally titled?
- Plaintiff vs Defendant
- Motion to dismiss
- A motion requesting the court to dismiss the case for the reasons provided in the motion
- negotiation
- Example of ADR, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them
- Rebuttal
- Additional evidence presented by the plaintiffs attorney to refute the defendants case
- Motion for directed verdict
- Asking the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence to support the plaintiffs claim
- Jury instruction
- Judge instruction to jury of how the law applies to the issue
- Affidavits
- Sworn statements by parties or witnesses
- Writ of certiorari
- An order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review
- submission
- the act of referring to dispute to an arbitrator
- Statutes of Limitations
- Time periods in which action must be brought
- Judicial Review
- The power of the judiciary to decide whether the laws of the legislative branch or actions of the executive branch are following the constitution
- Alternative Dispute Resolution (ADR)
- resolution of disputes in ways other than those involved in the traditional judicial process EX: Negotiation, mediation, arbitration
- Small claims court
- Inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as 5,000 (the amount varies state to state)
- E-Evidence
- Any form of electronic evidence
- arbitrator
- disinterested third party (other than a court) who renders a decision that may or may not be legally binding
- Rule of four
- For of nine supreme court justices must approve of a writ for it to be issued
- mini-trial
- private proceeding in which each party to a dispute argues its position before the other side, and vice versa. A neutral third party may be present and act as an adviser if the parties fail to reach an agreement
- Complaint
- The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; Initiates a lawsuit
- Remedy at law
- A remedy available in a court of law. Money damages are awarded as a remedy at law.
- conciliation
- Example of ADR, the parties reach an agreement themselves with the help of a neutral third party, called a conciliator, who facilitates the negotiations
- Docket
- The courts schedule listing the cases to be heard
- Case Law & Common Law
- Judge-made laws, including interpretations of constitutional provisions, of statues enacted by legislatures, and of regulations created by administrative agencies.
- United States Code
- The united states code arranges all existing federal laws of a public and permanent nature by subject
- Rejoinder
- The defendants answer to the plaintiffs rebuttal
- Remedy in equity
- 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
- How is a appeal case titled?
- Sometimes Defendant vs. Plaintiff although could still be Plaintiff vs Defendant
- mediator
- mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute
- federal question
- A federal question is raised anytime a plaintiff's cause of action is based, at least in part, on the U.S. constitution, a treaty, or a federal law
- 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
- Probate Courts
- State courts that handle only matters relating to the transfer of a person's assets and obligations after that person's death, including issues relating to custody and guardianship of children
- Cases on point
- Previously decided cases that are as similar as possible to the one under consideration
- Positive Law
- Also known as national law. The wirtten law of a given society at a particular point in time. Applies only to the citizens of that nation or society. No such thing as Natural rights
- Cross-Examination
- The questioning of an opposing witness during trial
- Motion for a new trial
- If the judge is convinced that the jury was in error, the motion for a new trial will normally be granted
- Contingency fees
- Percentage of clients recovery received by lawyer
- Closing Argument
- Each party's attorney argues in favor of a verdict for his or her client. The last opportunity.
- in rem jurisdiction
- Jurisdiction over property that is located within its boundaries.
- Appellee or Respondent
- The party against who the suit is brought or appealed
- Executive Agencies
- Federal agencies that exist within the cabinet departments of the executive branch. Subject to Authority of the president. Ex. Food and Drug
- Supreme Court Judges
- Are appointed by the president of the United States
- Deposition
- A sworn testimony by a party to the lawsuit or by any witnesses, recorded by an authorized court official.
- Reporter
- A publication in which court cases are published, or reported
- Statutory Law
- Laws enacted by legislative bodies at any level of government, such as the statues passed by congress, or by state legislatures
- Secondary Sources of law
- Books and articles that summarize and clarify the primary sources of law
- Federal Rules of Civil Procedure (FRCP)
- Rules that specify what must be done at each state of the litigation process. All civil trials held in a federal district court are governed by these rules
- Remedy
- The relief given to an innocent party to enforce a right or compensate for the violation of a right
- Court Opinion
- Used primarily in appeals court. It is the courts reasons for its decision, the rules of law that apply, and the judgement
- Question of law
- Concerns that application or interpretation of a law
- defendant
- The party being sued
- Exclusive jurisidiction
- When cases can be tried only in federal courts or only in state courts
- Summons
- Notifies defendant that they must answer the complaint within a specified period or suffer default judegment
- summary jury trial
- Example of ADR, method of settling disputes in which a trial is held, but the jury's verdict is not binding. Verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
- Criminal Law
- Is concerned with wrongs committed against the public as a whole
- Procedural Law
- Procedural law consist of all laws that delineate the methods of enforcing the rights established by substantive law.
- Uniform Laws
- Uniform model laws for states to consider adopting. Developed to counter problem of conflicting state statutes.
- Constitutional Law
- The law expressed by federal and state constitutions
- Federal Arbitration Act (FAA)
- FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves
- Order of courts
- Circuit Courts --> Court of Appeals --> Supreme Court
- Specific Performance
- A form of equitable remedy
- Jurisdiction
- "The power to speak the law."
- mediation
- Example of ADR, method of settling disputes outside of court by using the services of a neutral third party (mediator)
- Direct examination
- Calling a witness to the stand and questioning them
- Equitable Maximus
- General propositions or principles of law that have to do with fairness (equity).
- personam jurisdiction
- Personal jurisdiction over any person or business that resides in a certain geographic area,
- Primary sources of law
- The U.S. Constitution, Statutory Law, Regulations created by Administrative Agencies (Food and Drug), and Case law and common law
- Legal Reasoning
- The reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to the specific facts or circumstances of the case.
- Cases of first impression
- Cases with no precedents
- NCCUSL
- National Conference of Commissioners on Uniform State Laws
- Answer
- The defendant either admits or denies each of the allegations in the plaintiff's complaint and may also set forth any defenses to those allegations
- Service of process
- the process of notifying the defendant
- Ordinances
- Laws, rules, or orders passed by municipal or county governing units to govern matters not covered by federal or state law. These are also considered Statutory Law. Commonly have to do with city or county land use, safety codes, etc.
- Relevant Evidence
- Evidence that tends to prove or disprove a fact in question or establish the degree of probability of a fact or action
- Opening Statement
- The opening statements are provided by both attorneys to give an overview of what they plan to present during the trial
- Justiciable controversy
- A controversy that is real and substantial, as opposed to hypothetical or academic.
- Concurrent Jurisdiction
- When both federal and state courts have the power to .hear a case, as is true in suits involving diversity of citizenship
- Default judgement
- A judgement entered by a court against a defendant that has failed to appear in court to answer or defend against the plaintiff's complaint.
- Motion for judgement n.o.v. (not withstanding the verdict)
- A motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.
- Legal Realism
- Based on the idea that law is just one of the many institutions in society and that it is shaped by social forces and needs. Judges should take social and economic realities into account when deciding cases.
- Natural Law
- Denotes a system of moral and ethical principles that are inherent in human nature and that people can discover through the use of their natural intelligence, or reason. People have natural rights.
- Hearsay
- Any testimony given in court about a statement made by someone else who was not under oath at the time of the statement
- Public Policy
- Governmental policy based on widely held societal values
- Motion for judgement on the pleadings
- A motion that may be filed by either party in which the party ask the court to enter a judgement in his or her favor based on information contained in the pleadings. A judgement on the pleadings will only be made if there are no facts in dispute and the only question is how the law applies to a set of undisputed facts.
- Binding Authority
- Any source of law that a court must follow when deciding a case. This includes constitutions, statues, and regulations, that govern the issue being decided, as well as previous court decisions in the same jurisdiction.
- Syllogism
- A form of deductive reasoning involving a major premise, a minor premise, and a conclusion
- Motion
- A procedural request submitted to the court by an attorney on behalf of her or his client
- arbitration
- Example of ADR, 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.
- Pleadings
- Formally notify each party of the claims of the other and specify the issues involved in the case
- long arm statute
- Gives courts the power to exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state. Ex. No resident defedant who is sued for breaching a contract within the state
- Independent Regulatory Agencies
- Federal regulatory agencies that are independent, thus not fully under the power of the president. Ex. Federal Trade Commission, Securities and Exchange Commission.
- Pretrial motion
- A written or oral application to a court for a ruling or order, made before trial
- Defense
- An argument raised by the defendant indicating why the plaintiff should not obtain the remedy sought.
- early neutral case evaluation
- Example of ADR, a neutral third party evaluates the strengths and weaknesses of the disputing parties' positions; the evaluator's opinion forms the basis for negotiating a settlement
- voir dire
- The process of selecting a jury
- Affirmative defense
- Admitting truth to plaintiff complaints but raising new facts to show the defendant should not be responsible
- Can organization bring forth a lawsuit? E
- No, the plaintiff must have been injured in some way, thus groups cannot normally bring the lawsuit