Business Law Exam 1 (ch. 1,2,3,6,7)

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law
A body of enforceable rules governing relationships among individuals and between individuals and their society.
Primary sources of law
1. The U.S. Constitution and the constitutions of the various states.
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 law doctrines.
Secondary sources of law
books and articles that summarize and clarify the primary sources of law.
Examples include legal encyclopedias, treatises, articles in law reviews, and compilations of law, such as the Restatements of the Law.
Courts often refer to secondary sources of law for guidance in interpreting and applying the primary sources of law discussed here.
constitutional law
Law that is based on the U.S. Constitution and the constitutions of the various states.
(supreme law of the land)
state constitutional law
Each state in the union has its own constitution. Unless it conflicts with the U.S. Constitution or a federal law, a state constitution is supreme within the state’s borders.
statutory law
The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).
When a legislature passes a statute, that statute ultimately is included in the federal code of laws or the relevant state code of laws.
ordinances
A law passed by a local governing unit, such as a municipality or a county.
Ordinances commonly have to do with city or county land use (zoning ordinances), building and safety codes, and other matters affecting the local community.
uniform law
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 all or part of a uniform law
administrative law
The body of law created by administrative agencies (in the form of rules, regulations, orders, and decisions) in order to carry out their duties and responsibilities.
administrative agency
A federal, state, or local government agency established to perform a specific function. Administrative agencies are authorized by legislative acts to make and enforce rules to administer and enforce the acts.
executive agencies
An administrative agency within the executive branch of government. At the federal level, executive agencies are those within the cabinet departments. (ex. FDA, subject to authority of the president.)
case law and common law doctrines
Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies.
remedies
The relief given to an innocent party to enforce a right or compensate for the violation of a right.
specific performance
involves ordering a party to perform an agreement as promised.
injunction
is an order to a party to cease engaging in a specific activity or to undo some wrong or injury.
rescission
is the cancellation of a contractual obligation.
defense
is an argument raised by the defendant indicating why the plaintiff should not obtain the remedy sought.
defendant
the party being sued
plaintiff
the suing party
petitioner
in equity cases bringing the law suit
respondent
the party begin sued
laches
The equitable doctrine that bars a party’s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights.
statues of limitations
A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced
precedent
is a decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.
stare decisis
(a Latin phrase meaning “to stand on decided cases”). A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.

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.

binding authority
Any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.
(stable and predictable)
first impression
no precedent
persuasive authorities
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.
public policy
A government policy based on widely held societal values and (usually) expressed or implied in laws or regulations.
legal reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.
motion to dismiss
A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.
deposition
The testimony of a party to a lawsuit or a witness taken under oath before a trial.
interrogatories
A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney.
apellate court options
1. The court can affirm the trial court’s decision. (Most decisions are affirmed.)
2. The court can reverse the trial court’s judgment if it concludes that the trial court erred or that the jury did not receive proper instructions.
3. The appellate court can remand (send back) the case to the trial court for further proceedings consistent with its opinion on the matter.
4. The court might also affirm or reverse a decision in part. For example, the court might affirm the jury’s finding that Carvello was negligent but remand the case for further proceedings on another issue (such as the extent of Kirby’s damages).
5. An appellate court can also modify a lower court’s decision. If the appellate court decides that the jury awarded an excessive amount in damages, for example, the court might reduce the award to a more appropriate, or fairer, amount.
writ of execution
A court’s order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor’s nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.
exclusive jurisdiction
Federal crimes.
Bankruptcy.
Most patent and copyright claims.
Any lawsuits against the United States.
Some areas of admiralty law (law governing seaborne transportation and ocean waters).
standing to sue (3 elements)
1. Harm. The party bringing the action must have suffered or will imminently suffer harm—an invasion of a legally protected interest. The controversy must be real and substantial rather than hypothetical.
2. Causation. There must be a causal connection between the conduct complained of and the injury.
3. Remedy. It must be likely, as opposed to merely speculative, that a favorable court decision will remedy, or make up for, the injury suffered.
negotiation
(1) In regard to dispute settlement, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them. (2) In regard to instruments, the transfer of an instrument in such a way that the transferee (the person to whom the instrument is transferred) becomes a holder.
mediation
A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.
Arbitration
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding.
tort
A civil wrong not arising from a breach of contract. A breach of a legal duty that proximately causes harm or injury to another.
Categories: Business Law