Business Law 1 – Flashcards

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law
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The order or pattern of rules that society establishes to govern the conduct of individuals & relationships among them.
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right
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legal capacity to require another person to perform or refrain from an action
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duty
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A thing we are required to do, an obligation of law imposed on a person to perform or refrain from performing a certain act
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right of privacy
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The right to be free from unreasonable intrusion by others.
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constitution
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The document which established the present structure of the federal government of the United States and outlined its powers. It can be changed through amendments.
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statutory law
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legislative acts declaring, commanding, or prohibiting something
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administrative regulations
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rules enacted by regulatory agencies to govern certain activities
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private law
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(civil law) the body of law that deals with relationships between private individuals
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case law
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Law that includes principles that are expressed for the first time in court decisions, The rules of law announced in court decisions
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precedent
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A ruling that is used as the basis for a judicial decision in a later, similar case
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stare decisis
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The rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented.
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common law
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a legal system based on customs and court rulings, judge made law that originated in England from decisions shaped according to prevailing custom
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substantive law
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Law that defines the rights and duties of people
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procedural law
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Rules for enforcement of legal rights and duties
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equity
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Form of justice administered when there is no suitable remedy available in common law courts.
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admissibility
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describes evidence that should be "let in" or introduced in court, or evidence that a jury may use
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affirm
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To declare to be true, state positively; To confirm a fact
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answer
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the principle pleading by the defendant in response to plaintiff's complaint
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appeal
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(law) a legal proceeding in which the appellant resorts to a higher court for the purpose of obtaining a review of a lower court decision and a reversal of the lower court's judgment or the granting of a new trial
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appellate jurisdiction
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The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved.
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arbitration
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The hearing and determination of a dispute by an impartial referee agreed to by both parties (often used to settle disputes between labor and management)
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association tribunal
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a court created by a trade association or group for the resolution of disputes among its members
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attorney client privilege
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Protects: 1. Any communication 2. Between client and attorney 3. So long as confidential 4. For purpose of legal advice UNLESS 5. Privilege waived by client; OR 6. Exception applies
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complaint
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(criminal law) a pleading describing some wrong or offense, (civil law) the first pleading of the plaintiff setting out the facts on which the claim for relief is based
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counterclaim
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1) a claim for relief by a defending party against an opposing party. 2) Defending parties must assert counterclaims that arise out of the same transaction or occurrence as the claim against them. 3) Ref. 13(a)(1)
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court
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an assembly (including one or more judges) to conduct judicial business, The place where a judge holds trials and decides matters of law
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cross examination
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The questioning of an opposing witness during trial, Cross-examination is a right. If witness testifies but then cannot be cross-examined, the direct testimony will be struck. Witnesses may be crossed about matters within the scope of the direct examination, and about matters affecting credibility.
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defendant
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an individual or group being sued or charged with a crime
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demurrer
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a motion to dismiss a case, alleging that the complaint is insufficient to state and legal cause of action
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deposition
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the testimony of a witness made under oath but not in open court, a pretrial interrogation of a witness
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direct examination
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The first questioning of a witness in court by the attorney for the party who called the witness to testify.
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directed verdict
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an order entered by the trial court judge in favor of the party requesting the verdict because the opposing party has failed to establish a prima facie cause of action or an adequate defense to that cause of action
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discovery
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A pretrial activity to gain all the facts of the situation, Means of obtaining information from other party before a trial.
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en banc
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the term used when the full panel of judges on the appellate court hears a case.
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execution
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the carrying out of a judgment of a court, generally directing that property owned by the defendant be sold and the proceeds first be used to pay the execution or judgment creditor.
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expert witness
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one who has special training, experience, or skill in a relevant area and is allowed by the court to offer an opinion on some issue within that area of expertise
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federal district court
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Trial court in a federal case of original jurisdiction., The lowest federal court with general jurisdiction.
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garnishment
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a court order to an employer to withhold all or part of an employee's wages and to send the money to the court or to the person who won a lawsuit against the employee
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general jurisdiction
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a court's power to hear any type of case arising within its geographical area, a label for the law allowing states the right to decide which cases will be heard in their courts.
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impeach
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using prior inconsistent evidence to challenge the credibility of a witness
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instructions
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Given to jury by the court on which particular law to rule on. If jury is deadlocked the trial is re-scheduled for another date.
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interrogations
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written questions opposing party must answer under oath, used a discovery tool
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judge
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a public official authorized to decide questions bought before a court of justice
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judgement n.o.v
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Judge can overturn a verdict from the jury if it is incorrect, (N.O.V.) reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law. The judge will then enter a different verdict as "a matter of law." Essentially the judge should have required a "directed verdict" (instruction to the jury to return with a particular verdict since the facts allowed no other conclusion), and when the jury "went wrong," the judge uses the power to reverse the verdict instead of approving it, to prevent injustice. This process is commonly called "judgment N.O.V." or simply "N.O.V.," for Latin non obstante veredicto.
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judicial triage
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court management tool used by judges to expedite certain cases in which time is of the essence, such as asbestos cases in which the plaintiffs are gravely ill.
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jurisdiction
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the authority of a court to hear a case
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jury
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a body of citizens sworn to give a true verdict according to the evidence presented in a court of law
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limited jurisdiction
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exists when a court's authority to hear cases is restricted to certain types of claims, such as tax claims or bankruptcy petitions
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mediation
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an attempt by a neutral third party to resolve a conflict by facilitating communication and offering suggestions.
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minitrial
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a trial held on portions of the case or certain issues in the case.
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motion for summary judgement
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appropriate when there are no factual issues and there just needs to be an application of the law, A pretrial request to enter a judgement when no material facts are disputed
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motion to dismiss
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document asking the court to dismiss the case, A kind of pretrail motion requesting the court to dismiss the case for the reasons provided, such as improper service, lack of personal jurisdiction, or the plaintiff's failure to state a claim for which relief can be granted.
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ombudsman
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an official who investigates citizens' complaints against the government
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opening statement
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The opening statements are provided by both attorneys to give an overview of what they plan to present during the trial
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original jurisdiction
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The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.
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plaintiff
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one who begins a lawsuit
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pleadings
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formal papers filed with the court by the plaintiff and defendant, the paperwork that is filed with the court to initiate and respond to a lawsuit. question & answer
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process
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paper work filed to initiate delivery of a warrant or summons to someone
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prosecutor
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an attorney whose official duty is to conduct criminal proceedings on behalf of the state or the people against those accused of having committed criminal offenses.
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recross examination
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an examination by the other side's attorney that follows the redirect examination; second cross examination, defense, last chance- has to relate to what took place during direct/cross examination
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redirect examination
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questioning after cross- examination, in which the attorney for the witness testifying may ask the same witness other questions to overcome effects of the cross-examination.
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reference to a third party
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settlement that allows a non-party to resolve the dispute. example: employee & employer may have a 3rd party settle retirement package.
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remand
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to return an appealed case to a lower court for a new trial
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rent a judge plan
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dispute resolution through private courts with judges paid to be referees for the cases.
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request for production of documents
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A direction or command served upon another party for production of specified documents for review with respect to a suit; a discovery devise.
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reverse
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A decision is reversed when an appellate court overturns or negates the decision of a lower court., The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.
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reversible error
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a mistake committed by a trial court that is serious enough to warrant a new trial because the mistake could have affected the outcome of the original trial
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small claims court
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A court that hears civil cases involving small dollar amounts.
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special jurisdiction
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is the courts jurisdiction only on certain types of cases such as bankruptcy, family matters, etc
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subject matter jurisdiction
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Jurisdiction over the subject matter of a lawsuit., the authority of a court to hear cases of a particular type or cases relating to a specific subject matter, ex: criminal, juvenile, probate, etc.
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summary jury trial
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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.
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summations
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another name for closing arguments. The final step in a trial.
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trial de nova
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a trial required to preserve the constitutional right to a jury trial by allowing an appeal to proceed as though there never had been any prior hearing or decision
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voir dire examination
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examination of a potential juror for the purpose of dertermining whether she is qualified and acceptable to act as a juror
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writ of certiorari
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Order by the Supreme Court directing a lower court to send up the records of a case for review
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business ethics
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ethical principles used in making business decisions
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civil disobedience
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refusal to obey unjust laws, a group's refusal to obey a law because they believe the law is immoral (as in protest against discrimination)
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conflict of interest
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a situation in which a public official's decisions are influenced by the official's personal interests, when a business puts its interests before the interests of society
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ethic
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the principles of right and wrong that are accepted by an individual or a social group
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integrity
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uncompromising adherence to moral and ethical principles
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moral relativism
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takes into account motivation and circumstance to determine whether an act was ethical
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natural law
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a doctrine that society should be governed by certain ethical principles that are part of nature and, as such, can be understood by reason
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primum non nocere
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"Above all, do no harm"
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situational ethics
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a flexible standard of ethics that permits an examination of circumstances and motivation before attaching the label of right or wrong to conduct.
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stakeholder analysis
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the term used when a decision maker views a problem from different perspectives and measures the impact of a decision on various groups.
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stakeholder
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Any person or group within or outside the organization that has a stake in the organizations performance
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bedrock view
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Strict interpretation of the Constitution
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bicameral
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a legislature consisting of two parts or houses, consisting of two chambers
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commerce clause
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The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.
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constitution
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the body of fundamental laws setting out the principles, structures, and processes of a government
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delegated powers
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Those powers, expressed, implied, or inherent, granted to the National Government by the Constitution.
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due process clause
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14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law
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ex post facto laws
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A law which punishes people for a crime that was not a crime when it was committed. Congress cannot pass these laws.
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executive branch
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the branch of the United States government that is responsible for carrying out the laws
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federal system
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a system that divided powers between the states and the federal government
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judicial branch
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The branch of government that interprets laws
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legislative branch
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the branch of government that makes the laws.
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living document view
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view that the constitution is merely a statement of goals and objectives and is intended to grow and change over time
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police power
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the authority of each state to act to protect and promote the public health, safety, morals and general welfare of its people
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preemption
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The right of a federal law or regulation to preclude enforcement of a state or local law or regulation.
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privileges and immunities clause
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part of Article IV of the Constitution guaranteeing that the citizens of each state are afforded the same rights as citizens of all other states
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quasi judicial proceedings
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forms of hearings in which the rules of evidence and procedure are more relaxed but each side still has a chance to be heard.
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shared powers
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National and State governments share certain powers (example- the power to tax)
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tripartite
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a government with three parts
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clayton act
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This helped to control monopolies by lengthening the Sherman Act's list of business practices that were objectionable (interlocking directorates). It exempted labor and agricultural organizations from antitrust prosecution; legalized strikes and peaceful picketing.
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divestiture order
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a court order to dispose of interests that could lead to a monopoly
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market power
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the ability to alter the market price of a good or service
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price discrimination
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the charging practice of a seller who charges different prices to different buyers for the same product, resulting in discrimination creating a monopoly.
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robinson patman act
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A federal statute that makes it unlawful to discriminate, directly or indirectly, in matters involving product pricing, advertising, and promotion.
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sherman antitrust act
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1890 First federal action against monopolies, it was signed into law by Harrison and was extensively used by Theodore Roosevelt for trust-busting. However, it was initially misused against labor unions
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takeover laws
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LAWS THAT GUARD AGAINST UNFAIRNESS IN CORPORATE TAKEOVER SITUATIONS
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treble damages
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penalties awarded to the injured party equal to three times the value of the injury. (16)
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tying
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THE ANTICOMPETITIVE PRACTICE OF REQUIRING BUYERS TO PURCHASE ONE PRODUCT IN ORDER TO GET ANOTHER, the act of tying or binding things together, requiring buyers to take an additional product in order to purchase the product they actually want; illegal
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administrative agency
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A federal, state, or local government agency established to perform a specific function., governmental entity (other than a court or legislative) having authority to affect the rights of private parties. example (unemployment, social security...agencies)
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administrative law
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the body of rules and regulations and orders and decisions created by administrative agencies of government
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administrative procedure act
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federal law that establishes the operating rules for administrative agencies
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cease and desist order
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(law) a judicial remedy issued in order to prohibit a party from doing or continuing to do a certain activity
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consent decrees
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informal settlements of enforcement actions brought by agencies
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exhaustion of administrative remedies
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the requirement that relief be sought from an administrative agency before proceeding to court
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federal register act
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federal law requiring agencies to make public disclosure of proposed rules, passed rules, and activities.
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federal register
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A publication of the U.S. government that prints executive orders, rules, and regulations., official document, published every weekday, that lists the new and proposed regulations of executive departments and regulatory agencies
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freedom of information act
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A law passed in 1966 giving citizens the right to inspect all government records except those containing military, intelligence, or trade secrets or material revealing private personnel actions.
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informal settlements
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negotiated disposition of a matter before an administrative agency, generally without public sanctions.
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open meeting law
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1976 Law requiring all governmental agency meetings to be open to the public unless classified information will be discussed.
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act of state doctrine
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A doctrine providing that the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its own territory., Rule that a court should not question the validity of actions taken by a foreign government in its own country
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agent
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person or attorney who authorized to make contracts with third person on behalf of business
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blocking laws
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laws that prohibit the disclosure, copying, inspection, or removal of documents located in the enacting country in compliance with orders from foreign authorities
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choice of law clause
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Identify's which state law is to be applied. Does not necessarily mean that the case must be tried in that state only what law is to be applied
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dispute settlement body
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means, provided by the World Trade Organization, for member countries to resolve trade disputes rather than engage in unilateral trade sanctions or a trade war.
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comity
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The courtesy by which one country recognizes, within its own territory or in its courts, another country's institutions
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distributor
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entity that takes title to goods and bears the financial & commercial risks for the sale of goods
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dumping
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the sale of an exported product at a price lower than that charged for the same or a like product in the "home" market of the exporter
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effects doctrine
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doctrine that states that U.S. courts will assume jurisdiction and will apply antitrust laws to conduct outside of the United States when the activity of business firms has direct and substantial effect on U.S. commerce; the rule has been modified to require that the effect on U.S. commerce also be foreseeable.
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export sale
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A direct sale to customers in a foreign country
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franchising
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an organization gives another organization the right to use its name and operating methods.
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freight forwarder
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private companies that combine less-than carload or less-than truckload shipments from several different businesses and deliver them to their detinations; in international business, companies licensed by the U.S. Maritime Commission to handle export details., Someone who handles overseas shipments for a fee
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gray market goods
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merchandise that possesses a valid U.S. registered trademark and is made by a foreign manufacturer but is imported into the U.S. without permission of the U.S. trademark owner
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intellectual property rights
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the legal protection of the original works of inventors, authors, creators, and performers under patent, copyright, and trademark law, such rights became a contentious area of trade negotiations in the 1990s
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joint venture
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An agreement between two or more companies to share a business project.
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jurisdictional rule of reason
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rule that balances the vital interests, including laws and policies, of the United States with those of a foreign country.
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letter of credit
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commercial device used to guarantee payment to a seller, primarily in an international business transaction
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licensing
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allowing a foreign organization to take charge of manufacturing and distributing a product in its country or world region in return for a negotiated fee.
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most favored nation clause
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status awarded by one nation to another in international trade. It means that the receiving nation will be granted all trade advantages — such as low tariffs — that any other nation also receives.
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principle
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rule of personal conduct
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secrecy laws
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confidentiality laws applied to home-country banks.
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sovereign compliance doctrine
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doctrine that allows a defendant to raise as an affirmative defense to an antitrust action the fact that the defendant's actions were compelled by a foreign state.
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sovereign immunity doctrine
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States that a government expropriating foreign-owned private property is immune from the jurisdiction of courts in the owner's country
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special drawing rights
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A international reserve asset given to each country to help increase its reserves, the currencies that make up the SDR basket are the dollar, euro, yen, and british pound, countries who borrow are give performance criteria, and must adopt certain policies to stabilize its economy
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tariff
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a government tax on imports or exports
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blackmail
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extortion of money by threats to divulge discrediting information
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computer crime
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any act that violates state or federal laws involving use of a computer
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conspiracy
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a secret agreement between two or more people to perform an unlawful act
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crime
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the violation of a society's formally enacted criminal laws
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due process
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means that the government must follow the same fair rules in all cases brought to trial
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economic espionage act (EEA)
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law that makes the theft of trade secrets by foreign entities a federal crime in the US, federal statute that makes it a crime for any person to convert a trade secret for his or her own or another's benefit, knowing or intending to cause injury to the owners of the trade secret
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embezzlement
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the fraudulent appropriation of funds or property entrusted to your care but actually owned by someone else
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extortion
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the felonious act of extorting money (as by threats of violence)
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facilitation payments
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(grease payments) legal payments to speed up or ensure performance of normal government duties.
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federal sentencing guidelines
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federal standards used by judges in determining mandatory sentence terms for those convicted of federal crimes., written by Congress instructing the judge to impose a specific sentence unless there is a proven mitigating or aggravating factor in the case
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felonies
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Serious crimes, such as murder, arson, or rape., serious crimes that are generally punishable by one year or more in prison
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5th amendment
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right to grand jury, indictment, no double jeopardy, freedom from self-incrimination, due process of law, Amendment that sets up due process of law and protects the accused.
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foreign corrupt practices act (FCPA)
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A U.S. act outlawing the payment of bribes to foreign government officials in order to gain business., Prohibits American companies from making corrupt payments to foreign officials for the purpose of obtaining or keeping business.
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Forgery
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criminal falsification by making or altering an instrument with intent to defraud, something counterfeit; an illegally produced imitation
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4th amendment
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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grease payments
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Small payments-almost gratuities-used to get lower level government employees to speed up required paperwork.
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miranda warning
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ruling that requires police, when arresting suspects, to inform them of their rights, including the right to remain silent and have an attorney present during questioning
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misdeameanor
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is a minor crime,punishable by a fine and or imprisonment for less than a year
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predicate act
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qualifying underlying offense for RICO liability.
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RICO act
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Racketeer Influenced & Corrupt Organizations Act, law intended to eradicate organized crime by establishing strong sanctions and forfeiture provisions
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search warrant
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A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence
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6th amendment
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Protects the right to have a fair and speedy public trial by jury, including the rights to be notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel, Rights of the accused, Right to a speedy and public trial
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uttering
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the crime of knowingly tendering or showing a forged instrument or counterfeit coin to another with intent to defraud
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white collar crimes
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A wide range of nonviolent crimes, often involving cheating or dishonesty in commercial matters. Examples would be fraud, embezzlement, and insider trading.
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white Collar Crime penalty enhancement act of 2002
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federal reforms passed as a result of the collapses of companies such as Enron; provides for longer sentences and higher fines for both executives and companies.
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sarbanes oxley act of 2002
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An act passed into law by Congress in 2002 to establish strict accounting and reporting rules in order to make senior managers more accountable and to improve and maintain investor confidence., Legislation enacted to protect the interests of stockholders who invest in publicly traded companies by improving the reliability and accuracy of the disclosures provided to them., requires that the CEO and CFO of large companies that have publicly traded stock personally certify that financial reports made to the SEC comply with SEC rules and that info in the reports are accurate.
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absolute privilege
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anyone speaking in legislative forum. Witnesses at legislative hearings. But must be made in legislative forum. Newsletters to constituants nor press releases are part of them but be "essential to deliberation" Also, grand jury rooms, courtrooms all protected as long as remark it uttered during official portions of hearing. Persons in administrative and exec branches of gov get protection too. Official communication in reports, policy statements, press conferences presented by presidents, gov, mayors ect.. are protected.
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contract interference
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tort involving a third parties actions resulting in a valid contract being lost or invalidated; an infair method of competition
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contributory negligence
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is when the victim did something that helped cause his or her own injury, a common-law principle that prevents a person who has been harmed from recovering damages if that person's own negligence contributed in any way to the harm
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defamation
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an abusive attack on a person's character or good name
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false imprisonment
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unlawful restraint or restriction of a person's freedom of movement, (law) confinement without legal authority
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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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intentional torts
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actions that deliberately hurt, embarrass, or scare people, occur when a person has been intentionally or deliberately injured by another, defamation, libel, slander, assult, battery, false imprisonment, Requires willful action.
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invasion of privacy
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the wrongful intrusion by individuals or the government into private affairs with which the public has no concern
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libel
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a tort consisting of false and malicious publication printed for the purpose of defaming a living person
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malpractice
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failure by a health professional to meet accepted standards, providing improper or unprofessional treatment or care that results in injury to another person
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negligence
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failure to act with the prudence that a reasonable person would exercise under the same circumstances, careless neglect, often resulting in injury
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product disparagement
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the tort of defamation for products, false statements made about a product or business
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qualified privilege
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media privilege to print inaccurate information without liability for defamation, so long as a retraction is printed and there was no malice
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shopkeepers privilege
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a defense to false imprisonment available to a shopkeeper so long as when he or she detains the suspeceted shoplifter, the storekeeper has a reasonable belief that the person has shoplifted, and detains that person only for a reasonable time and in reasonable manner
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slander of title
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The publication of a statement that denies or casts doubt on another's legal ownership of any property, causing financial loss to that property's owner.
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slander
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an abusive attack on a person's character or good name
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strict liability
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Liability regardless of fault. In tort law, strict liability is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce goods that are unreasonably dangerous when in a defective condition.
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tort
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(law) any wrongdoing for which an action for damages may be brought, a civil wrong committed against a person or property, excluding breach of contract
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trade libel
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The publication of false information about another's product, alleging it is not what its seller claims; also referred to as slander of quality.
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trespass
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entry to another's property without right or permission
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acquired distinctiveness
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through advertising, use and association, over time, an ordinary descriptive word or phase has taken on a new source-identifying meaning and functions as a mark in the eyes of the public
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copyright
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Protection giving the owner the exclusive right to reproduce or distribute copies of his or her own work., secure a copyright on a written work
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cybersquatters
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term for those who register and set up domain names on the internet for resale to the famous users of the names in question.
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distinctiveness
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capable of serving the source identifying function of a mark
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mask work
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specific form of expression embodied in a chip design, including the stencils used in manufacturing semiconductor chip products
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prior art
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a showing that an invention as a whole would have been obvious to a person of ordinary skill in the art when the invention was patented
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secondary meaning
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special meaning of a mark that distinguishes goods, in such a way as to warrant trademark protection
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service mark
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A mark used in the sale or advertising of services to distinguish the services of one person from those of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks.
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trade dress
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The image and overall appearance of a product—for example, the distinctive decor, menu, layout, and style of service of a particular restaurant. Basically, trade dress is subject to the same protection as trademarks., the image and overall appearance of a product
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trade secret
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a secret (method or device or formula) that gives a manufacturer an advantage over the competition, A practice, method, process, design, or other information used confidentially by an organization to maintain a competitive advantage.
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semiconductor chip product
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product placed on a piece of semiconductor material in accordance with a predetermined pattern that is intended to perform electronic circuitry functions
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trademark
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a name, symbol, or other device identifying a product; it is officialy registered with the U.S. government and its use is legally restricted to its owner. example (Nike sign & polo symbol)
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