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exam 1 Flashcards

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1
Q

sources of law

A 
constitutions (state and federal)
statutory laws (state and federal)
administrative agencies (state and federal)
case law and common law doctrines
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2
Q

supreme law of the land

A

constitution
If a law violates the constitution it is unconstitutional and unenforceable
Each state has its own constitution
Treaties are as powerful as the constitution

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3
Q

statutory law

A

statutes are codes of law
made at the legislative level (fed, state, city)
each state has its own law codes (cities and municipalities often have ordinances)

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4
Q

administrative law

A

NOWHERE IN THE US CONSTITUTION
the informal “4th branch”
federal & state law
make rules and regulations that are binding

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5
Q

common law/case law

A

judge-made laws based on interpretation of statutes

ex- internet law

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6
Q

goal of the supreme court

A

to be unbiased & politically motivated

follow the rule of law

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7
Q

courts of law & equity

A

courts of equity: a court that is authorized to apply principles of equity, as opposed to those of law, to cases brought before it
divided depending on the type of remedy needed

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8
Q

precedents

A

cases with similar facts that have been decided
new cases with the same or similar facts should be ruled the same way
binding authority

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9
Q

doctrine of stare decisis

A

“let decisions stand”

precedents

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10
Q

common law

A

stare decisis

if there isn’t a law on the books or the law hasn’t been interpreted, the judge has to interpret it

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11
Q

jurisprudence

A

defined philosophy of law

no right or wrong answer

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12
Q

schools of thought

A

natural law
positive law
historical law
legal realism

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13
Q

schools of thought defined

A

natural law: applies to all man kind; “higher power”
positive law: no higher law, those in power are the ones making decisions and laws
historical: law is evolutionary, good/bad doesn’t matter; you have to obey (takes a while for change to happen)
legal realism: cannot be uniform, take into account what is happening in society today

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14
Q

substantive vs procedural law

A

substantive: the “nuts and bolts”. elements of a crime & understanding what the law actually is (ex- speed limit)
procedural: the “how to”; filing a pleading. certain steps are required to be constitutional

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15
Q

civil vs criminal law

A

civil law: rights and duties of each of us to the government person>person or person>gov. remedies include money damages, or equity (no jail)
criminal law: wrongs against society as a whole, jail time

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16
Q

private vs public law

A

private: between people
public: between a person and the government (permits, environmental law)

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17
Q

cyber law

A

its own thing
business activites conducted online
copyright

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18
Q

social responsibility

A

the expectations that the community imposes on firms doing business inside its borders

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19
Q

____ plays a huge role in business survival

A

public opinion

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20
Q

jurisdiction

A

the right of a court to haul you before it

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21
Q

jurisdiction more

A

The right of court to “speak”
Must have before anyone is “hauled” to court
Basic tenant before a court case is heard
All about “fairness” to the defendant

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22
Q

a properly filed case has

A

personal jurisdiction, subject matter jurisdiction, & venue (which is not jurisdiction)

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23
Q

jockeying

A

“to manipulate for one’s benefit”
the plaintiff and defendant’s lawyers
changing the venue is a form of jockeying

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24
Q

personal jurisdiction

A

the right of a defendant to bring someone to court
can be sued: where the defendant lives, where the accident happened (minimum contacts), where the person works, if a person waives jurisdiction

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25
Why don't you worry about the plaintiff's jurisdiction?
because the plaintiff has already given personal jurisdiction by filing a claim
26
personal jurisdiction is warranted if
proper service (service of process); you must be alerted personal service corporations
27
long-arm statute
non-resident defendant | need for minimum contacts
28
statute of limitations
period of limitation for the bringing of certain kinds of legal action: 2 years
29
corporations
``` people in the eyes of the law can be served: domiciled: home office state of incorporation (where it was registered) where it is doing business ```
30
in rem jurisdiction
"power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction" If individuals have an action over the property, you have to sue in the county in which the property is located land or associated with land
31
exclusive federal jurisdiction
``` admirality bankruptcy federal crimes patent trademark ```
32
concurrent jurisdiction
both state and federal have an opportunity to hear the case at the same time federal question or diversity of citizenship
33
federal question
questions dealing with the constitution federal treaties federal law federal crimes
34
diversity of citizenship
where both sides of the lawsuit are citizens of different states only way to move a case to federal court amount of controversy is GREATER than $75,000
35
minimum contacts
personal jurisdiction requires fairness long arm statute requires minimum contacts the defendant has to have taken actions that were purposefully directed towards the forum state. Such actions may include, among others, selling goods in the state, being incorporated in the state, visiting the state, or bringing property in the state.
36
vanue
the proper geographic place to have a case heard | can change for certain reasons
37
standing to sue (standing)
a person must have a stake in the outcome to sue | parents have the right to stand for minors
38
justiciable controversy
something real or A controversy involving a real issue that can be settled by a court, involving a present claim made by one party and another party disputing it. substantial- not hypothetical about to happen or is happening
39
basic court system
52 court systems in the u.S. 50 state court systems all about fairness 579 federally recognized tribal courts all with their own court systems
40
state courts & 3 tiers
trial court: records are made (court of original jurisdiction) appellate: reviewing court supreme court: highest court, potential for an appeal to the federal level (rule of 4)
41
new testimony
exceptions where new witnesses can be brought in: if there is new scientific evidence fraud on the court (purposely withholding info)
42
federal court
US district courts: trial courts US courts of appeal: 13 circuits (circuit= federal appeal) US supreme court: rule of 4, writ of cert (right of court to hear a case), final arbiter
43
trial process
pretrial: pleadings, pretrial motions, discovery, pretrial conference trial: 9 steps post trial: enforcement & writ of execution (ask court for help upholding the judge's decree)
44
9 steps of trial
1. voir dire ( jury selection) 2. opening statement 3. plaintiff's case 4. defendant's case 5. rebuttal and rejoinder 6. closing argumanets 7. jury instructions 8. jury deliberations 9. entry of judgement & post-trial motions
45
in personam jurisdication
the court's power to render a decision affecting specific persons
46
subject matter jurisdiction
jurisdiction over the type of case before a court
47
forum selection clause
parties specify which court would hear a dispute over al alleged breach of the contract
48
procedural rules
HOW cases are brought to court and how to make the process as fair as possible
49
substantive rules
describes rights, elements, of crimes , "nuts and bolts"
50
most important part of the trial process
pretrial
51
pleadings (complaint)
complaint filed by the plaintiff (must name part to suit, facts and law violated, prayer for relief) court then issues summons serves complaint and summons to the defendant
52
pleadings (answer)
answer filed by the defendant 21-30 days to respond (usually denies) alleges and cross-complaints gives any affirmative defenses if defendant denies all allegations, case proceeds cross-complaint is filed by defendant alleging counter claims
53
if the defendant doesnt answer
default judgement is entered against defendant | default judgement follows you (not removed due to bankruptcy)
54
service of process
constitutional protections that allow a person to know they're being sued notion of fair pay defendant can waive service all about fairness
55
motion to dismiss
defendant files when they believe plaintiff has failed to state a claim or there is insufficient evidence generally not granted
56
motion to change venue
asks court to change the physical location due to pretrial publicity or hardship to the defendant generally with international peopel
57
motion for judgement on the pleadings
either party asks the court to decide the case based on the pleadings (complaint & answer) alone usually denied- only allowed if one person is clearly wrong (video evidence)
58
motion for summary judgement
requests the court to enter a judgement based on pleadings and discovery can be made at any time during a trial
59
discovery
``` depositions interrogations production of documents request for admissions (stipulating to the facts) physical/mental exam ```
60
depositions
oral Q&A done on record with both sides present can be on agreement of parties or subpeona can be used to impeach witness later at trial
61
interrogations
written questions very detailed must be answered within a certain time frame answers signed under oath and notarized descriptive
62
production of documents
very time consuming and expensive | if too cumbersome, can ask that complaining part does a "sight visit"
63
request for admissions
written questions in a form to admit or deny only
64
physical or mental exam
judge can order a person to submit to an exam if its a condition that's being sued on
65
e-discovery
metadata- posting new findings online | disadv: can be hacked or deleted
66
rule of evidence
rules in place protect relevance hearsay: what another person said/overheard when in doubt- courts generally dont allow hearsay
67
the appeal
civil trials- either party can appeal criminal trials- only defendant can appeal notice of appeal must be filed appellant usually has to file bond
68
ADR
alternative dispute resolution (settling a case before you go to trial) most contracts have an ADR clause
69
negotiations
less formal settle claim voluntarily most courts require a showing of some sort of negotiation beats litigation
70
litigation
taking legal action
71
mediation
parties chose a neutral 3rd party to hear a dispute mediator doesn't give award, offers a solution meets separately with parties
72
arbitration
``` most formal most popular impartial 3rd party chosen evidence & testimony is presented arbitrator renders an award parties are bound and cannot appeal ```
73
med-arb
start in mediation, finish in arbitration more expensive and time consuming usually ends with someone unhappy
74
other ADR options
summary jury trial private trials mini trials
75
can precedence be changes
yes. and often is (refer to brown vs board of education)
76
can precedence be overruled
yes, if the judge was using personal bias
77
binding authority
doctrine of precedents | binding on that particular court- anything the circuit pronounces, that circuit must follow
78
____ contains all the executive orders created by the president
CFR code of federal regulations
79
ethical dilemma
no clear right decision is available
80
social responsibility of business
the expectations that the community imposes on firms doing business inside its borders
81
values
positive abstractions that capture our sense of what is good or desirable
82
the golden rule
we should interact with other people in a matter consistent with the way we would like them to interact with us
83
public disclosure test
consider how public disclosure may affect a decision
84
universalization test
before we act, consider what the world would belike if our decision were copied by everyone else
85
ethical relativism
theory that ethics denies the existence ob objective moral standards
86
situational ethics
requires that we evaluate the morality of an action by imagining ourselves in the position of the person facing the dilemma
87
absolutism (ethical fundamentalism)
requires that individuals defer to a set of rules to guide them in the ethical decision making process
88
consequentialism
a general approach to ethical dilemmas that requires that we inquire about the consequences to relevant people of our making a particular decision assess harm & benefit intentions are irrelevant
89
utilitarianism
take actions that have the greatest net pleasure (pleasure-pain) "good" is the desired outcome consequentialist theory
90
deontology
acting on the basis of the recognition that certain actions are right or wrong, regardless of consequences (harms and benefits are irrelevant)
91
categorical imperative
an action is moral only if it would be consistent for everyone to act in the same way problematic because it requires universal agreement of right and wrong.
92
virtue ethics
development of virtues, or positive character traits such as courage, justice, truthfulness, is the basis for morality
93
ethics of care
the right course of cation is the option most consistent with the building and maintaining of human relationships
94
natural law
ethical laws and principles believed to be morally right and above the laws devised by humans freedom to disobey a law if its against their moral
95
legal positivism
our role is to be obedient to the law despite if its against our morals
96
historical law
tradition | past practice is a result of careful thought
97
legal realism
must weigh in more than just law weight social and economic conditions the environment is ever-changing
98
WH framework
Ethical considerations to business – WH framework (who & how) Who does this decision affect: Consumers, stakeholders, owners, investors, employees, community, future generations public opinion plays a huge role How to make ethical decisions: Public disclosure, universalization, golden rule Utilitarianism, kantian ethics, deontology (ch 2) suggests that the purpose or end result of a particular decision often reflects the business's values
99
principle of rights
whether a business decision is ethical depends on how the decision affects the rights of all involved
100
act utilitarianism vs rule utilitarianism
act: greatest good for the greatest number (organ donor example) rule: live by rules that are likely to lead to the greatest LONG-TERM & LARGE-SCALE good for the greatest number
101
sliding scale standard
The Likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that n entity conducts over the internet. this sliding scale is consistent with well developed personal jurisdiction principles

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