Midterm Flashcards
1
Q
legal astuteness
A
the ability of managers to communicate effectively and work with counsel to solve problems
2
Q
public law
A
the formal rules embodied in constitutions, statutes, judicial decisions
3
Q
four primary public policy objectives
A
- promoting economic growth
- protecting workers
- promoting consumer welfare
- promoting public welfare
4
Q
teleological theory
A
concerned with consequences (the ethical good of an action is to be judged by the effect the cation has on others)
5
Q
deontological theory
A
the motivation and principle behind an action than on its consequences
6
Q
compensatory justice
A
aims at compensating people for the harm done by others
7
Q
retributive justice
A
concerned with the harm people do to others, but focus on how to deter others from inflicting the harm
8
Q
common law
A
case law: the legal rules made by judges when they decide a case
9
Q
how is common law developed?
A
through stare decisis
10
Q
authoritative legal rule
A
one that must be followed regardless of persuasive power
11
Q
What are the criteria for a case to be held in federal court?
A
- federal question jurisdiction
- diversity jurisdiction
- when the united states is a party
12
Q
define federal question jurisdiction
A
exists when the dispute concerns federal law
13
Q
define diversity jurisdiction
A
exists when a lawsuit is between citizens of two different states or between a citizen of a state and a foreign country AND the amount exceeds 75k
14
Q
Erie doctrine
A
ensures the outcome of a diversity case will be similar to the outcome in a state court
15
Q
When is a corporation deemed a dual citizen?
A
the state in which it has been incorporated and where it is headquartered
16
Q
en banc hearing
A
cases of the courts of appeals are usually presented to a panel of 3 judges
17
Q
what is subject matter jurisdiction?
A
which courts have the power to hear this kind of claim?
18
Q
What is personal jurisdiction?:
A
which states have the power to hear my particular claim?
19
Q
service of process
A
notifies the defendant of the filing od a lawsuit
20
Q
long-arm statute
A
defendant had minimum contacts with the state AND the incident occurred in that state
21
Q
class action fairness act
A
permits defendants to remove many civil class actions to federal court
22
Q
civil procedure
A
refers to the methods, procedures, and practices that govern the processing of a lawsuit from start to finish
23
Q
pleadings
A
plaintiff’s complaint,
24
Q
summons
A
officially notifies the defendant that the lawsuit is pending in a particular court and that the defendant must file a response in a certain number of days
25
affirmative defense
admits that the defendant has acted in a certain way but claims that the defendant's conduct was not the cause of harm or that the behavior is excused for some reason
26
counterclaim
a legal claim made by the defendant aginst the plaintiff
27
a motion to dismiss
seeks to terminate the lawsuit on the ground that the plaintiff's claim is inadequate
28
case dismissed with prejudice
the plaintiff is precluded from asserting the same claims in another case
29
motion for judgment on the pleadings
a party may file a motion to dismiss immediately after the complaint and answer have been filed
30
affidavits
sworn statements or other written evidence in an attempt to show that the cause of action is without merit
31
summary judgment
decision made without a trial
32
settlement conference
give each side a candid assessment of the strengths and weaknesses of its case and likely the outcome if it goes to trial
33
voir dire
each side may challenge any number of jurors for cause during the questioning of jurors
34
deposition
anyone who might have helpful info about the facts may be required to give oral testimony
35
interrogatories
written questions parties may be required to answer in writing
36
When can you NOT prove common contention
when there is individual discretion or different legal harms
37
three parts of discovery
depositions, interrogatories, requests for the production of documents
38
agency
one person who acts for and represents the principal
39
principal
delegates a portion of power to an agent
40
equal dignities rule
if an agent acts on behalf of another in signing an agreement in writing the authority of the agent must also be in writing
41
apparent authority
when a person leads another to believe that someone else is his or her agent and is then prevented from denying it
42
agency by ratification
an agency relationship formed without an agreement--> if the principal approves or accepts the benefits of the actions of an otherwise unauthorized agent
43
respondeat superior
employers are liable for the torts of their employees as long as the employee was acting within the scope of employment
44
fiduciary duty
by agreeing to act on behalf of the principal the agent becomes a fiduciary
- duty of loyalty
- duty of obedience
- duty of care
45
duty of loyalty
fiduciary duty of agents, officers, and directors to act in good faith and in what they believe to be in the best interest of the principal
46
duty of obedience
obey all orders of the principal
47
duty of care
duty to avoid mistakes, whether through negligence, recklessness, or intentional misconduct
48
actual authority
agent's authority to act on behalf of a principal can be expressed or implied
49
express actual authority
authority given based on words or by an action that indicates the principal's consent
50
implied actual authority
to do whatever is reasonable to complete the task at hand (usual or customary)
51
express ratification
when the principal manifests an intent to be bound by the agent's act by words or through action
52
implied ratification
occurs when the principal by failure to repudiate or through silence the agent's act, acquiesces in it
53
vicarious liability
the imposition of civil or criminal liability on one party for the wrongful acts of another
54
sole proprietorships
one individual owns all the assets of the business an is solely and personally responsible for all of its debts
55
general partnerships
an association of two or more persons to carry on as co-owners
56
pass-through entity
a business organization that does not pay tax as a separate tax payer
57
limited liability partnerships
designed primarily for groups of professionals--> partners usually have unlimited liability for their own malpractice
58
limited partnerships
consists of one or more general partners and limited partners
59
liability of general partners
jointly and severally liable for partnerhsip obligations
60
limited partner liability?
assume no liability for partnership debts beyond the amount of capital they have contributed
61
benefit corporations
a for-profit corporation that uses the power of business to solve social and environmental problems
- no duty to maximize shareholder value
62
limited partnership requirements
a certificate of partnership and limited participation
63
staggered board
a board on which directors serve for specified terms with only a fraction of them up for reelection
64
piercing the corporate veil
disregard the corporate from. when a court denies limited liability to a corporation and holds shareholders personally responsible for claims against the corporation
65
alter ego theory definition
applies when the owners of a corporation have so mingled their own affairs with those of the corporation that the corporation for not exist as a distinct entity
66
factors in deciding whether a corporation is an alter ego of the shareholder
- domination by controlling shareholder
- bypassing formalities
- comingling of assets
67
undercapitalization theory
applies when the corporation is a separate entity but its deliberate lack of adequate capital allows it to skirt potential liabilities
68
inside director
a member of the board can serve as an officer
69
outside director
someone who is not also an officer
70
plurality standard (voting for shareholders)
a director could be elected as long as he has received a plurality of the votes cast for any nominee without regard to the number of votes withheld
71
plurality plus voting
a director nominee is elected but fails to receive a majority of the votes cast, the director must tender hi resignation which the board must decide whether to accept
72
cumulative voting
each shareholder may cast all of his or her votes for one nominee or allocate them among the nominees
73
straight voting
a shareholder can cast one vote for each share the shareholder owns for each nominee
74
class voting
when the charter or applicable law requires one class of stock to approve a given proposal voting separately from the holders of the other classes of stock
75
proxy access
the ability of certain significant and longer-term shareholders to nominate candidates for the board and to solicit proxies without having to incur the considerable expense of a proxy contest
76
proxy contests
insurgents propose their own slate of directors or rally to oppose a board proposal by sending out their own proxy statement and soliciting proxies for their candidates or position
77
shareholder derivative action
shareholders alleging corporate mismanagement leading to harm to the corporation as a whole
78
direct action
shareholders could sue directors if the board completed a merger or other transaction requiring approval by the preferred shareholders voting as a class without obtaining that approval
79
the securities acts of 1933 and 1934 reflect what core beliefs?
- investors should be provided with full information prior to investing
- corporate insiders should not be allowed to use nonpublic information concerning their companies and to their own financial advantage
- misled investors should receive adequate relief even in the absence of common law fraud
80
investment contract
any transaction that involves an investment of money in a common enterprise with profits to come solely from the efforts of others
81
horizontal commonality
an arrangement whereby multiple investors pool their funds and receive pro rata share of the profits of a single enterprise or buy very similar assets that are managed jointly
82
broad vertical commonality
the fortunes of the investors need to be linked only to the efforts of the promoter
83
narrow vertical commonality
the investor must prove a tie between the fortunes of the investor and the investments promoter such that these fortunes rise and fall together
84
the family resemblance test
a promissory note is initially presumed to be a security based on the literal language the securities act but may be rebutted showing that the note bears strong resemblance to other instruments
85
role of underwriters
agree to purchase the entire offering and find buyers
86
prospectus
selling document and disclosure document, an insurance policy against claims of security fraud
87
waiting period
the time between the public filing of the registration statement and its becoming effective-- issuer and underwriters can't publish a lot during this time
88
free writing prospectus
written communication that offers securities but does not meet the statutory requirements for a prospectus
89
gun-jumping
conditioning the market to whip up interest in the offering with a news article or press release
90
due diligence
shows risk of investing in company, close look t financials
91
define tort
a civil wrong resulting in an injury to a person or property
92
intentional torts require the plaintiff to prove what?
- actual or implied intent
- a voluntary act by the defendant
- causation AND
- injury or harm
93
actual intent:
can be shown by evidence that the defendant intended a specific consequence to a specific individual
94
recklessness
as the degree of certainty of the result decreases, the defendant's conduct loses the character of intent and becomes recklessness
95
defamation
communication to a third party of an untrue statement asserted fact, that injures the plaintiff's reputation by exposing him or her to hatred, ridicule, or contempt
96
libel
written defamation (law presumes injury)
97
slander
spoken defamation (actual injury must be shown)
98
defenses to defamation
absolute and qualified privelege
99
absolute privilege
cannot be lost-- a statement can be published that is known to be false
100
qualified privilege
can be lost under certain conditions if the person making the statement made it with malice, in bad faith, or with an improper motive
101
invasion of privacy forms:
- intrusion
- public disclosure of private facts
- appropriation of person's name or likeness
102
negligence
the failure to use such care as a reasonably prudent and careful person would use under similar circumstances
103
duty to rescue
duty to rescue one who is placed in peril, one whom you have a special relationship with, or one whom you have started to rescue
104
landlord tenant duty
landlord has a duty to provide adequate security to protect tenant from criminal acts of third parties
105
duty of landowners./possessors
landowners or possessors have a legal duty to keep the property reasonably safe
106
duty to trespassers
no duty unless trespassers are known
107
duty to licensees
refrain from gross negligence, only arises when the possessor has actual knowledge of a risk
108
duty to invitees
an invitee is owed a higher duty than a licensee (customers, employees, contractors) again protecting from known dangers
109
breach of duty
once it is determined the defendant owed the plaintiff a duty
110
negligence per se
negligence is imposed as a matter of the law when a person violated a statute intended to protect people from the harm inflicted on the plaintiff
111
res ipsa loquitur
the thing speaks for itself when the accident is obvious although there is no direct prof that the accident would have not happened without someone's negligence
112
three requirements for res ipsa loquitor
- plaintiffs injury must have been caused by a condition or instrumentality that was within the defendant's exclusive control
- the accident must be of such nature that it ordinarily would not occur in the absence of negligence by the defendant
- the accident must not be due to the plaintiff's own negligence
113
causal connection
actual cause and proximate cause (the plaintiff must prove the breach of duty caused negligence
114
actual cause
the plaintiff must prove that he or she would not have been harmed but for the defendant's negligence
115
proximate cause
the defendant has a duty to protect this particular plaintiff against the specific conduct that injured him or her
116
contributory negligence
if the plaintiff was negligent in any manner he or she cannot recover any damages from the defendant
117
comparative negligence
takes two froms: ordinary and pure
118
ordinary comparative negligence
plaintiff may recover if he or she is less culpable than the defendant
119
pure comparative negligence
the plaintiff may recover for any amount of the defendant's negligence even if the plaintiff was the more negligent party
120
assumption of risk
requires that the plaintiff knew the risk was present and understood its nature, voluntarily chose to incur the risk
121
actual damages
measure the cost to repair or replace an item or the decrease in market value caused by tortious conduct
122
punitive damages
may be awarded to punish the defendant and deter others from engaging in similar conduct
123
equitable relief
if a monetary reward will not adequately compensate for the plaintiff's loss, courts may give equitable relief (issue an injunction to prohibit the defendant from continuing a course of activity)
124
define product liability
the legal liability manufacturers and sellers have for defective products that cause injury to purchasers, users, or bystanders, or their property
125
theories of recovery
theories on which a product liability claim can be brought are a breach of warranty, negligence, and strict liability
126
breach of warranty
whether the quality, characteristics and safety of the product were consistent with the implied or express representations made by the seller
127
express warranty
an affirmation made by the seller relating to the quality of the goods sold
128
implied warranty
created by law and guarantees the merchantability of the goods sold and under some circumstances their fitness for a particular purpose
129
privity contract
to recover, an injured person must be in a contractual relationship with the seller
130
strict liability in tort
allows a person injured by an unreasonably dangerous product to recover damages from the manufacturer in the absence of a contract or negligent conduct
131
for a defendant to be held strictly liable, the plaintiff must prove what?
- the product harmed the plaintiff or the plaintiff's property
- the injury was caused by a defect in the product and
- the defect existed at the time the product left the defendant and did not substantially change along the way
132
manufacturing defect
a flaw in the product that occurs during production, such as a failure to meet the design specifications
133
design defect
when a product is manufactured according to specifications but nonetheless is unreasonably dangerous to the user or consumer or to his property due to its inadequate design or poor choice in materials
134
defective product if:
- design defect, manufacturing defect, inadequate warnings, labeling, or instructions
135
failure to warn claim the plaintiff must show:
- the defendant breached a duty to warn AND
- the defendant's failure to warn was the proximate cause of the plaintiff's injuries
136
common law defenses
- assumption of risk
- comparative fault
- obvious risk
137
comparative fault:
the plaintiff's damages may be reduced to the degree to which his or her negligence contributed to the injury
138
two elements needed to create criminal liability
- an act that violates an existing criminal statute AND
- the requisite state of mind
139
actus reus
guilty or wrongful deed often used to describe the act in question
140
mens rea
guilty mind
141
what are the three forms of mens rea
negligence, recklessness, and intent
142
civil liability versus criminal
- civil law compensates the victim for legal wrongs committed against the victim or his or her property
- criminal law protects society by punishing the criminal
143
direct liability
if an officer, director, or employee commits a crime against an employer, that person will be prosecuted as an individual
144
responsible corporate officer doctrine
a corporate officer may be found guilty of a crime if he or she bore a responsible relation to the violation of a statute dealing with products which may affect the health of consumers
145
impossibility defense
a corporate officer may escape liability if he or she did everything possible to ensure legal compliance but the company was still unable to comply with the applicable standards
146
respondeat superior
let the master answer-- a corporation can be held liable for criminal offenses committed bu its employees if the acts were committed within the scope of employment
147
white collar crime
a violation of the law by a corporation or one of its managers
148
RICO
Racketeering under the racketeer-influenced and corrupt organizations act
149
larceny
theft
150
fraud
any deception intended to induce someone to part with property or money
151
to establish mail or wire fraud must establish
- the existence of a scheme intended to defraud or to obtain money or property by fraudulent means
- the use of the mails or of interstate telephone lines or electronic communications in furtherance of the fraudulent scheme
152
honest services fraud
failure to provide honest services to employer
153
money laundering
the transfer of fund derived from the unlawful activities with the intent of concealing or disguising the nature location source ownership or control of said funds
154
false statements act
- falsifies and conceals or covers up by any trick scheme or device a material fact
- makes any materially false, fictitious, or fraudulent statement or representation
- makes or uses any false writing or document knowing the same to contain any false fictious or fraudulent statement or entry
shall be fine,imprisoned or both
155
Foreign corrupt practices act
accounting provision and anti-bribery provisions
156
FCPA
illegal to make a payment or give anything of value to a foreign gov official to get a business advantage. also illegal to make any payment or give anything of value to a foreign candidate for political office, or for a foreign political party to get a business advantage
157
bribery
the offering giving soliciting or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty
