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Primary Sources of Law

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Sources that establish the law. 1. The U.S. Constitution and the various state Constitutions. 2. Statutory Law - including laws passed by Congress, state legislatures, or local governing bodies. 3. Regulations created by administrative agencies, such as the Food and Drug Administration. 4. Case law and common doctrines.

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Secondary Sources of Law

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Books and articles that summarize and clarify the primary sources of law.

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Constitutional Law

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The law as expressed in these Constitutions. The federal governments and the states have separate written constitutions that set forth the general organization, powers, and limits of their respective governments.

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Statutory Law

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Laws enacted by legislative bodies at any level of government, such as statutes passed by Congress or by state legislatures.

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Ordinances

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Statutes (laws, rules, or orders) passed by municipal or county governing units to govern matters not covered by federal or state law.

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Areas of the Law That May Affect Business Decision Making

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Contracts, Sales, Negotiable Instruments, Creditors' Rights, Intellectual Property, Internet Law, Social Media, and Privacy, Product Liability, Torts, Agency, Business Organizations, Environmental Law and Sustainability, Courts and Court Procedures.

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Administrative Law

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Consists on the rules, orders, and decisions of administrative agencies.

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Uniform Law

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A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting. If the state adopts the law, it becomes statutory law in that state. Each state has the option of adopting or rejecting alll or part of the uniform law.

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Administrative Agency

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Federal, State, or Local government agency established to perform a specific function.

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Executive Agencies

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Agencies that are subject to the authority of the president, who has the power to appoint or remove their officers. Example - the U.S. Food and Drug Administration.

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Independent Regulatory Agencies

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Agencies that the President has less power over, officers serve for fixed terms and cannot be removed without just cause. Examples - Federal Trade Commission, the Securities and Exchange Commission, and the Federal Communications Commission.

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Case Law

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The doctrines and principles announced in cases - governs all areas not covered by statutory law or administrative law and is part f our common law tradition.

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Common Law

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A body of general rules that applied throughout the entire English realm.

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Damages

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An amount given to a party whose legal interests have been injured.

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Breaches

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Failure to fulfill the terms of an agreement.

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Equitable Maxims

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Proportions or general statements of equitable rules.

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Defense

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An argument raised by a defendant.

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Defendant

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The party being sued.

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Plaintiff

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The suing party.

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Petitioner

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In Equity proceedings, the party bringing the lawsuit.

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Respondent

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In Equity proceedings, the party being sued.

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Statues of Limitations

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Time periods for different types of cases are now usually fixed. After the time allowed has expired, no action can be brought.

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Precedent

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A decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.

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Reporters

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Volumes in which cases are reported or published.

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Stare Decisis

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Under this doctrine judges are obligated to follow the precedents established within their jurisdictions. 1. A court should not overturn its own precedents unless there is a compelling reason to do so. 2. Decisions made by a higher court are binding on lower courts.

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Binding Authority

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Any source of law that a court must follow when deciding a case.

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Persuasive Authorities

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Precedents from other jurisdictions that courts use as guidance when deciding cases of first impression.

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Public Policy

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Government policy based on widely held social values. factors that courts look for such as fairness, social values, and customs.

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Legal Reasoning

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The harmonization of court decisions that judges make that correspond with decisions they made prior.

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IRAC

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Issue, Rule, Application, and Conclusion. the basic steps of legal reasoning.

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Issue

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What are the key facts?

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Rule

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What rules of law apply to the case?

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Application

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How do the rules of law apply to the particular facts and circumstances of this case?

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Conclusion

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What conclusion should be drawn?

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Cases on Point

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Previously decided cases that are as similar as possible to the one under consideration.

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Alleges

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Claims that eh defendant committed a tort.

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Jurisprudence

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The study of law, involves learning about different schools of legal thought and how the approaches to law characteristics of each school can affect judicial decision making.

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Natural Law School

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One of the oldest and mos significant schools of legal thought. there is a universal law applicable to all human beings. - Constitutional Law

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Positivist School

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Believe that there can be no higher law than a nation;s positive law. Governments Make Law - Law is the supreme will of the state that applies only to citizens of that nation at the time. Law, and therefore rights and ethics, are not universal. The morality of a law, or whether the law is "bad or good" is irrelevant.

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Historical School

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Legal thought emphasizes the evolutionary process of law by concentration on the origin and history of the legal system.

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Legal Realism

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A school of legal thought that advocates a less abstract and more realistic and pragmatic approach to the law and tasks into account customary practices and the circumstances surrounding the particular transaction. Based in the idea that law is just on of many institutions in society and that it is shaped by social forces and needs.

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Substantive Law

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Consists of all laws that define, describe, regulate, and create legal rights and obligations.

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Procedural Law

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Consists of all laws that outline the methods of enforcing the rights established by substantive law.

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Civil Law

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Spells out the rights and duties that exist between persons and between persons and their governments, as well as relief available when a person's rights are violated.

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Criminal Law

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Is concerned with wrongs committed against the public as a whole.

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Cyberlaw

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The emerging body of law that governs transactions conducted via the internet.

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Citation

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Identifies the publication in which a legal authority - such as a statue or a court decision or other source - can be found.

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Appellant

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The party appealing a case.

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Appellee

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The Party against whom the appeal is taken.

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Opinions

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Contains the courts reasons its decision, the rules of law that apply, and the judgement.

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Majority Opinion

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Outlines the views of the majority of the judges deciding the case.

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Concurring Opinion

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A judge who agrees with the majority opinion as to the result but not as to the legal reasoning often writes a.

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Dissenting Opinion

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Presents the views of one or more judges who disagree with the majority view.

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Plurality Opinion

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No single position is fully supported by a majority of the judges deciding a case.

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Per Curiam Opinion

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A document issued by the court which does not indicate which judge wrote the opinion.

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Federal Rules of Civil Procedures

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All civil trials held in federal district courts are governed by.

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Pleadings

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The written complaints and answers.

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Complaint

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Contains a statement alleging (1) the facts showing that the court has subject matter and personal jurisdiction, (2) the facts establishing the plaintiff's basis for relief, and (3) the remedy the plaintiff is seeking.

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Summons

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A notice requiring the defendant to appear in court and answer the complaint that is given the the defendant along with the copy of the complaint.

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Service of Process

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Formally notifying the defendant of a lawsuit.

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Default Judgement

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When the judge rules to given the plaintiff that remedy they are seeking if the defendant fails to respond to the complaint.

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Anwser

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The defendants response to the complaint.

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Affirmative Defense

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The defendant admits the truth to the plaintiff's complaint but raises new facts to show that the defendant should not be held liable for the damages.

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Counterclaim

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The defendant can deny the plaintiff's allegations and instead set fourth their own claim that the accident happened as a result of the plaintiff.

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Motion

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A procedural request submitted to the court by an attorney on behalf of her or his client.

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Pretrial Motions

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The motion to dismiss, the motion for judgement on the pleadings, and the motion for summary judgement.

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Motion to Dismiss

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Asking the court to dismiss the case for the reasons stated in the motion.

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Motion for Judgments on the Pleadings

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This motions asks the court to decide the issue solely on the pleadings without proceeding to trial.

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Motion for Summary Judgment

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Asks the court to grant a judgement n that party's favor without a trial.

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Affidavits

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Sworn statements by parties or witnesses.

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Discovery

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The process of obtaining information from the opposing party or form witnesses prior to trial.

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Pretrial Conference

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After the discovery has taken place and before the trial begins, the attorney's may meet with the trial judge.

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Voir Dire

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The jury selection process.

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Opening Statements

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At the beginning of the trail, both attorney's are allowed to make statements setting forth the facts that they expect to prove during the trial.

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Rules of Evidence

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A series of rules that the courts have created to ensure that any evidence presented during a trial is fair and reliable.

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Relevant Evidence

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Evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action.

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Hearsay

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Testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement.

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Direct Examination

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For both attorneys, the types of questions and the manner of asking them are governed by the rules of evidence.

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Cross Examination

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Questioning of witnesses by the opposing attorney.

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Rebuttal

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After the defendant's attorney has finished introducing evidence, the plaintiff's attorney can.

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Rejoinder

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refuting the evidence.

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Motion to a New Trial

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Judges can grant, only if he or she believes that he jury was in error and that it is not appropriate to grant judgment for the other side.

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Motion for Judgement n.o.v.

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From the Latin non obstante veredicto, meaning "notwithstanding the verdict"". Such as motion will be granted only if the jury's verdict was unreasonable and erroneous.

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Brief

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A formal legal document outlining the facts and issues of the case, the judge's rulings or the jury's findings, that should be revered or modified, the applicable law, and arguments.

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Writ of Execution

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An order directing the sheriff to seize and sell the defendant's nonexempt assets, or property.

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Federal Form of Government

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National Government and the states share sovereign power.

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Sovereignty

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(Independence) State governments have the authority to regulate affairs within their borders.

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Police Powers

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State regulatory powers, more then the enforcement of laws but includes more than just the enforcement of criminal laws, they also give states the broad rights to regulate private activities to protect or promote the public order, health, safety, morals, and general welfare. Fire and building codes, antidiscrimination laws, parking regulations, zoning restrictions, licensing requirements, and thousands of other state statutes.

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Privileges and Immunities Clause

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Prevents a state from imposing unreasonable burdens on citizens of another state - particularly with regards to means of livelihood or doing business.

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Full Faith and Credit Clause

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" shall be given in each state to the public acts, records, and judicial proceedings of every other state". Applies only to civil matters.

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Checks and Balances

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A system that allows each branch to limit the actions of the other two branches, thus preventing any one branch from exercising too much power.

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Commerce Clause

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"To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes." has had a greater impact on business than any other provision in the constitution.

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Supremacy Clause

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Provides that the Constitution, laws, and treaties of the United States are "the supreme law of the land."

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Bill of Rights

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Adopted in 1791, are made up by the first 10 amendments to the U.S. Constitution.

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Symbolic Speech

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Gestures, movements, articles of clothing, and other forms of expressive conduct - is also given substantial protection by the courts.

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Compelling Government Interest

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the government's interest is balanced against the individual's constitutional right to free expression.

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Unprotected Speech

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The freedom of speech does not apply to Obscene Speech, Online Obscenity, or Virtual Pornography.

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Obscene Speech

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Material is considered obscene if (1) The average person finds that it violates contemporary community standards. (2) The work taken as a whole appears to a prurient (arousing or obsessive) interest in sex. (3) The work shows patently offensive sexual conduct. (4) The work lacks serious redeeming literary, artistic, political, or scientific merit.

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Online Obscenity

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Acts to protect children (1) CDA (Communications Decency Act (1996) (2) COPA (Children Online Decency Protection Act (1998)(3) CIPA (Children's Internet Protection Act (2000).

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Virtual Pornography

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in 2003 Congress passed the PROTECT Act, making it a crime to knowingly advertise, present, distribute, or solicit "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material" depicts actual child pornography. PROTECT stands for Proprietorial Remedies and Other Tools to end the Exploitation of Children Today Act.

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Freedom of Religion

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Prohibits government from establishing a state-sponsored religion, or passing laws, that favor one over the other.

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Establishment Clause

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The first part of a Constitutional provision.

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Free Exercise Clause

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The second part of a Constitutional Provision.

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Search Warrant

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An order from a judge or other public official authorizing the search or seizure.

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Probable Cause

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The officers must have trustworthy evidence that would convince a reasonable person that the proposed search and seizure is more likely justified than not.

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Due Process Clause

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Any government decision to take life, liberty, or property must be fair. The government must give a person proper notice and an opportunity to be heard.

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Substantive Due Process

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Focuses on the content of legislation rather than the fairness of procedures. Legislation must be fair and reasonable in content and must further a legislative governmental objective.

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Equal Protection Clause

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Means that the government cannot enact laws that teat similarly situated individuals differently.

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Privacy Rights

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Fundamental right not expressly found in the constitution, but derived from First, Fifth, and Fourteenth Amendments. Laws and policies addicting privacy are subject to the compelling interest test.

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Torts

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Made up of two components. Wrong and compensations. Designed to compensate those who have suffered a loss or injury due to another person's wrongful act.

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Compensatory Damages

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Awards granted to a plaintiff to compensate or reimburse the plaintiff for actual losses.

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Special Damages

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Compensate the plaintiff for quantifiable monetary losses. Such losses might include medical expenses, lost wages, and benefits (now and in the future), extra costs, the loss of irreplaceable items, and the costs of repairing or replacing damaged property.

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General Damages

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Compensate individuals (not companies) for the non monetary aspects of the harm suffered, such as pain and suffering. A court might award general damages for physical or emotional pain and suffering, loss of companionship, loss of consortium (losing the emotional and physical benefits of a spousal relationship), disfigurement, loss of reputation, or loss or impairment of mental or physical capacity.

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Punitive Damages

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In tort cases to punish the wrongdoer and deter others from similar wrongdoing.

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Gross Neligence

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An intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another.

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Tortfessor

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The one committing the tort, must intend to commit an act, the consequences of which interfere with another's personal or business interests in a way not permitted by law.

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Intentional Torts

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Requires Intent. Such actions could be assault and Battery, False Imprisonment, Intentional Infliction of Emotional Distress, Defamation, Defamation, Fraudulent Misrepresentation, and Abusive Behavior or Frivolous Litigation.

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Transferred Inetent

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Intent of Tortfessor is transferred when he intends to harm person "a" but unintentionally harms person "b" as well.

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Assault

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Any intentional and unexcused threat of immediate harmful or offensive contact - words or acts that create a reasonably believable threat.

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Battery

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An unexcused and harmful or offensive physical contact intentionally performed.

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False Imprisonment

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Is the intentional confinement or restraint of another person's activities without justification, interfering with the freedom to move without restraint.

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Intentional Infliction of Emotional Distress

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An intentional act that amounts to extreme and outrageous conduct resulting in severe emotional distress to another.

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Actionable

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Capable of serving as the ground for a lawsuit.

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Defamation

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Wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false statements about others.

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Libel

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The posting of false statements that are defamatory using print or media.

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Slander

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The oral breaching of defamatory statements verbally.

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Invasion of Privacy

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(1) Intrusion into an individual's affairs or seclusion. (2) False lights. (3) Public disclosure of private facts. (4) Appropriation of identity. Use of a person's name or likeness or other identifying characteristic for commercial purposes without the owner's consent.

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Fraudulent Misrepresentation

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Involves intentional deceit for personal gain. (1) A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth. (2) An intent to induce another party to rely on the misrepresentation. (3) A justifiable reliance on the misrepresentation by the deceived party. (4) Damages suffered as a result of that reliance. (5) A casual connection between the misrepresentation and injury suffered.

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Abusive or Frivolous Litigation

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Protects person's from being sued without a proper legal reason.

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Wrongful Interference with a Contractual Relationship

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(1) A valid, enforceable contract must exist between two parties. (2) A third party must know that this contract exists. (3) This third party must intentionally induce a party to the contract to breach the contract.

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Wrongful Interference with a Business Relationship

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Unreasonably interfering with another's business in the same market to gain greater share of the market.

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Predatory Behavior

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Actions undertaken with the intention of unlawfully driving competitors completely out of the market.

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Real Property

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The land and things permanently attached to the land, such as a house.

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Personal Property

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Consists of items including cash and securities (stocks, bonds, and other ownership interests in companies).

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Trespass to Land

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(1) Enters onto, above, or below the surface of land that is owned by another. (2) Causes anything to enter onto land owned by another. (3) Remains on land owned by another or permits anything to remain on it.

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License

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One who is invited onto the property of another for the licensee's benefit.

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Attractive Nuisance Doctrine

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An owner can normally use reasonable force, however, to remove a trespasser from the premises - or detain the trespasser for a reasonable time - without liability for damages.

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Trespass to Personal Property

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Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property.

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Conversion

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Any act that deprives an owner of personal property or the use of that property without the owner's permission and without just cause.

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Disparagement of Property

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Occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation.

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Slander of Quality

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The publication of false information about another's product, alleging that it is not what its seller claims.

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Trade Libel

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The plaintiff must prove that the improper publication caused a third person to refrain from dealings with the plaintiff and that the plaintiff sustained economic damages.

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Negligence

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When someone suffers injury because of another's failure to live up to a required duty of care. (1) Duty, the defendant owed a duty of care to the plaintiff. (2) Breach, the defendant's breach caused the plaintiff's injury. (3) Damages, the plaintiff suffered a legally recognizable injury.

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Duty of Care

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That people are free to act as they please as long as their actions do not infringe on the interests of others.

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Reasonable Person Standard

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A hypothetical comparison of how a person should or might have acted in a given situation based on social trends made by judges.

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Business Invitees

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The duty of store or business owners to notify shoppers or other person's entering the facilities of dangers such as construction or wet floors.

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Causation is Fact

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Usually can be determined by use of the but for test; "but for" the wrongful act, the injury would not have occurred.

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Proximate Cause

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Exists when the connection between an act and an injury is strong enough to justify imposing liability.

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Negligence per se

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May occur when an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured.

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Good Samaritan Statutes

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Someone who is aided voluntarily by another cannot turn around and sue the person who aided them for negligence.

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Dram Shop Acts

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Under which a bar's owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar.

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Assumption of Risk

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(1) Knowledge of Risk. (2) Voluntary assumption of the risk.

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Contributory Negligence

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A plaintiff who was also negligent could not recover anything from the defendant.

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Comparative Negligence

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Both the plaintiff and the defendant are equally negligent and the liability for damages is distributed accordingly.

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Puffery

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Seller's Talk, Fraud only exists when a person represents as a fact something he or she knows is untrue.

BUS 206 – Business Law – Flashcards

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