Business Law 1 (first exam review)
The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both “subject matter jurisdiction” (power to hear the type of case in question, which is granted by the state legislatures and Congress).
The appropriate location according to law and court rules, for a trial. In a criminal case, the proper venue is generally the judicial district or county where the crime was committed. In civil cases, venue is generally proper in the county or district where important events related to the case took place, such as the signing or performance of a contract or the accident or other incident that led to a personal injury case.
3. Supremacy Clause:
Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict.
1) In a lawsuit, the harm caused to a party who is injured. 2) In a lawsuit, the money awarded to one party based on injury or loss caused by the other. For either definition, there are many different types or categories of damages. (See also:compensatory damages, actual damages, special damages, general damages, exemplary damages).
5. Injunctive Relief:
A court-ordered act or prohibition against an act that has been requested in a petition to the court for an injunction. Usually injunctive relief is granted only after a hearing at which both sides have an opportunity to present testimony and legal arguments.
6. Common Law:
The body of law that developed over many years in England based on court decisions and custom, as compared to written statutes (codifications of the law). Colonists imported England’s common law to what became the United States, and it survives today, greatly expanded and changed by the published decisions of American courts. Many common law principles, however, have been codified in state statutes. Only Louisiana does not take as its basic law the English common law; instead, that state’s law is based on France’s Napoleonic Code.
1) The net value of real estate, determined by subtracting the amount of unpaid debts secured by the property from its market value. 2) A set of legal principles that operates in addition to statutes and common law and is intended to give judges flexibility to achieve a just result. If traditional legal remedies (which usually involve compensation with money) wouldn’t be fair in a particular case, a judge can use an equitable remedy. A court might issue an order (injunction) directing someone to do something or stop doing something.
8. Stare decis:
Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.
9. Diversity Jurisdiction:
The power of the federal courts to decide civil disputes between citizens of different states provided the amount the plaintiff seeks in damages exceeds an amount set by Congress (currently $75,000). The so-called citizens may include companies incorporated or doing business in different states or a citizen of a foreign country.
1) A give-and-take discussion that attempts to reach an agreement or settle a dispute. Negotiation is a form of alternative dispute resolution. 2) The transfer of a check, promissory note, bill of exchange, or other negotiable instrument to another in exchange for money, goods, services, or other benefit.
A way that parties can resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge or an arbitrator, the mediator has no power to impose a solution.
An out-of-court procedure for resolving disputes in which one or more people; the arbitrators hear evidence and make a decision. Arbitration is like a trial in some ways, but typically proceeds much more quickly and with less formality.
A provision in a contract stating that some or all of the terms of the contract will be altered or voided by the occurrence of a specific event. For example, a contingency in a contract for the purchase of a house might state that if the buyer does not approve the inspection report of the physical condition of the property, the buyer does not have to complete the purchase.
Papers filed in court by an injured party to begin a lawsuit by setting out facts and legal claims (usually called causes of action). The person filing the complaint is called the plaintiff and the other party is called the defendant. In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. The plaintiff’s complaint must be served on the defendant, who then has the opportunity to respond by filing an answer.
15. Equal Protection:
The right, guaranteed by the Fourteenth Amendment to the U.S. Constitution, to be treated the same, legally, as others in the same situation. If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a suspect classification.
16. Due process:
A fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness.
17. Cost Benefit Analysis:
an analysis of the cost effectiveness of different alternatives in order to see whether the benefits outweigh the costs.
18. Duty Based Ethics: (DUTY)
1) A legal relationship, created by law or contract, in which a person or business owes something to another. The breach of this obligation can result in liability. 2) A tax on imported goods.
A duty that a person has to do the right thing, because they are under the authority of God.
a theory in normative ethics holding that the proper course of action is the one that maximizes overall happiness. It is now generally taken to be a form of consequentialism, although when Anscome first introduced that term it was to distinguish between “old-fashioned Utilitarianism” and consequentialism.
20. Unpublished Court Opinions:
(a) Unpublished opinion Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.
21. Free speech:
The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
A false statement that harms a person’s reputation. If the statement is published, it is libel; if spoken, it is slander. Most states have retraction statutes under which a defamed person who fails to seek a retraction from the publisher, or who seeks and obtains a retraction, is limited to compensation equal to the actual (or special) damages.
Internet slang for unsolicited bulk email, primarily unsolicited commercial email (UCE). Spam has been linked with fraudulent business schemes, chain letters, and offensive sexual and political messages
Computer contaminant, as in the legal codes of several U.S. states.
The civil wrong (tort) of wrongfully using another’s personal property as if it were one’s own, holding onto another’s property that accidentally comes into one’s hands, or purposely giving the impression that the assets of another belong to oneself. The true owner has the right to sue for the property or the value and loss of use of it. The converter can be guilty of the crime of theft.
The act of entering someone’s property without permission or authority.(Although it usually refers to real estate, trespass can apply to personal property as well.) Trespassing can be a tort (a civil wrong, which the property owner can sue over) and can be a crime if it’s done willfully. Examples of trespass include erecting a fence on another’s property or dumping debris on another’s real estate.
Failure to exercise the care toward others that a reasonable or prudent person would use in the same circumstances, or taking action that such a reasonable person would not, resulting in unintentional harm to another. Negligence forms a common basis for civil litigation, with plaintiffs suing for damages based on a variety of injuries, from physical or property damage to business errors and miscalculations.
29. Standard of care:
The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party.
30. Inherently Dangerous Activities:
Unsafe, hazardous, fraught with risk. It can be negligence for which a lawsuit can be brought if damage results from creating or leaving unguarded a dangerous condition which can cause harm to others, a dangerous instrumentality (any device which can cause harm, including explosives and poisonous substances) or dangerous weapon which are inherently hazardous to anyone handling them or within the weapon’s range.
31. Strict Liability:
Automatic responsibility for damages due to manufacture or use of equipment or materials that are inherently dangerous, such as explosives, animals, poisonous snakes, or assault weapons. A person injured by such equipment or materials does not have to prove the manufacturer or operator was negligent in order to recover money damages.
A word, phrase, logo, graphic symbol, or other device that is used to identify the source of a product or service and to distinguish it from competitors. Some examples of trademarks are Ford (cars and trucks), Betty Crocker (food products), and Microsoft (software).
A grant by the U.S. Patent and Trademark Office (USPTO) that allows the patent owner to maintain a monopoly for a limited period of time on the use and development of a new innovation.
A bundle of exclusive rights granted to the author of a creative work such as book, movie, song, painting, photograph, design, computer software, or architecture. These rights include the right to make copies, authorize others to make copies, make derivative works, sell and market the work, and perform the work. Any one of these rights can be sold or licensed separately through transfers of copyright ownership.
The crime of entering a building with the intent to commit a crime. Old definitions required that the entering be accompanied by a “breaking,” by forcing one’s way in or by any pnysical act that allows entry; and that the crime intended be a felony. Modern statutes are less restrictive. For instance, someone would be guilty of burglary if he entered a house through an unlocked door in order to commit a murder (a felony) or to steal a bicycle (probably a misdemeanor). At night.
Another term for theft. Although the definition of this term differs from state to state, it typically means taking property belonging to another with the intent to permanently deprive the owner of the property.
The crime of directly taking property (including money) from a person (victim) through force, threat, or intimidation. Robbery is a felony, punishable by a term in state or federal prison.
38. Burden of proof:
A party’s job of convincing the decisionmaker in a trial that the party’s version of the facts is true. In a civil trial, it means that the plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff’s version is true — that is, over 50% of the believable evidence is in the plaintiff’s favor.
A false document, signature, or other imitation of an object of value used with the intention to deceive another into believing it is the real thing. Those who commit forgery are commonly charged with the crime of fraud.
The crime of stealing the funds or property of an employer, company, or government or misappropriating money or assets held in trust.
41. Money Laundering:
The process of creating the appearance that large amounts of money obtained from serious crimes, such as drug trafficking or terrorist activity, originated from a legitimate source.
A grand jury’s conclusion that a serious crime has occurred, and that it is reasonably probable that the defendant committed it. Prosecuting attorneys may generally choose how to charge a crime: by indictment or by using a criminal complaint. To proceed by way of indictment, the prosecutor will show the grand jury enough evidence to persuade them that the target of the investigation should be brought to trial.
43. Grand Jury:
A group of people chosen at random that sits on a regular basis to hear evidence brought by a prosecutor. The prosecutor presents evidence against a person that he or she thinks will justify an indictment (formal charges) and a trial.
44. Miranda Warnings:
The warnings that law enforcement must give anyone who is in custody and about to be questioned by the police, if the police desire to use any resulting statements against the person questioned. Custodial suspects must be told that they have the right to remain silent; that they have the right to have a lawyer present during questioning; that they have the right to a court-appointed attorney if they cannot afford one; and that statements may be used against them in court.
1) A general term for the effort of an attorney representing a defendant during trial and in pretrial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) A response to a complaint, called an affirmative defense, to counter, defeat, or remove all or a part of the contentions of the plaintiff.
An enthusiastic and skillful computer programmer or user. A person who uses computers to gain unauthorized access to data.
47. Exclusionary Rule:
A rule of evidence that disallows the use of illegally obtained evidence in criminal trials. For example, the exclusionary rule would prevent a prosecutor from introducing at trial evidence seized during an illegal search.
(cyber-terrorism) an assault on electronic communication networks
A federal law, passed in 1970, that allows prosecution and civil penalties for certain acts (including illegal gambling, bribery, kidnapping, murder, and money laundering) performed as part of an ongoing criminal enterprise. RICO has been used to prosecute members of the mafia, the Hells Angels motorcycle gang, and Operation Rescue, an anti-abortion group, among others.