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BUS 346 Exam 1
| Term | Definition |
|---|---|
| Law | collection of rules intended to prescribe or control human behavior |
| Procedural Law | law that relates to the procedures of courts, such as rules as to the timing and location of court cases and the order of events in a lawsuit |
| Common Law | judge made law (stare decisis); courts will tend to follow the law created and applied in previous decisions |
| Substantive Law | law that determines the real rights of the parties to the case; these include liability for personal injury, the enforcement of a contract, or the definition of a crime |
| Constitutional Law | fed and state constitutions - 51 constitutions are "supreme" law; all other laws must be consistent with constitutions |
| Criminal Law | public law; punishes violators |
| Statutory Law | created by state, federal, and local legislatures (e.g., criminal law, law relating to marriage, employment discrimination law) |
| Civil Law | everything that is not criminal law (e.g., disputes over rights to property, in the form of damages) |
| 5 Sources of Law | 1) Courts 2) Constitutions 3) Legislatures 4) Administrative agencies 5) International Law (private) |
| Administrative Law | created by administrative agencies; very important for business: employment, environment, consumer protection, insurance, etc. (e.g., SEC EPA) |
| Functions of Law - four key functions: | Social control: control's behavior of individuals Resolving disputes: mechanisms for disputes Social maintenance: "conservative" that law maintains what leaders/ society believe is desirable Social change: uses gov power to create/force change |
| International Law | includes laws relating to trade, includes treaties between US and other nations, includes enforceable rules and ruling of international orgs of which the US is a member |
| Public Law | law that deals with the relationship between government and entities outside the government (e.g., criminal law, tax law) |
| Private Law | law that deals with relationships between non-governmental entities (e.g., personal injury, contract, property) |
| Jurisdiction | which court has the power "to speak the law" |
| Long-Arm Statute | a statute that allows for a court to obtain personal jurisdiction over an out-of-state defendant; goes in hand with minimum contacts |
| Subject Matter Jurisdiction | needed to hear and decide a case; authority or power that each court has over certain types of legal disputes |
| Judges | no special training required, different roles trials/appeals, federal judges are appointed by the president and confirmed by senate for life; state judges are appointed or elected and serve a multiyear term depending on court level |
| Personal Jurisdiction | involves whether the court (fed or state) has power over the individuals or businesses in the case |
| Removal | a legal concept that allows a person to "remove" a case from state to federal court if the federal court has jurisdiction over the case |
| U.S. District Court | a type of federal court; trial courts, 1 judge per case |
| Diversity of Citizenship | when there is no common state citizenship between the plaintiffs and defendants in a suit. In other words, all parties on one side of the controversy are citizens of different states from all parties on the opposing side |
| U.S. Court of Appeals | a type of federal court; first level of appeal; right if appeal; organized by circuit; 3 judges per case |
| Federal Question | one requirement for subject matter jurisdiction in fed courts - there is an issue of federal law (a problem involving the US Constitution or a federal statue) |
| U.S. Supreme Court | a type of federal court in Washington, 9 justices, selects cases based on importance and/or conflict among courts of appeals |
| Minimum Contacts | all persons in the lawsuit must have minimum contacts with the state |
| Summons | written notice of the beginning of a lawsuit must be "served" on all defendants; without proper notice court lacks personal jurisdiction and can't decide the case |
| State Courts | subject matter jurisdiction is broad (unless prohibited, can hear any matter involving state or federal law) |
| Exclusive Jurisdiction | one type of court (federal or state) is the only court that has subject matter jurisdiction over the case (e.g., bankruptcy) |
| Federal Courts | have narrow subject matter jurisdiction (can only decide limited types of cases) |
| The requirements for federal court civil subject matter jurisdiction | there is an issue of federal law (problem w/ US Constitution or federal statue- "fed question jurisdiction") OR when the dispute is between citizens of different states and the amount of controversy exceeds $75,000 ("diversity jurisdiction") |
| Concurrent Jurisdiction | more than one type of court (state or federal) can have subject matter jurisdiction over the case |
| Alternative Dispute Resolution (ADR) | parties are free to work out their own methods of dispute resolution, this is encouraged by the law |
| Mediator | a neutral person who is not involved in dispute who is selected to facilitate (not force) a result agreeable to the disputants; trained but do not have to be law trained |
| Arbitrator | can be a private judge, retired judge, lawyers, or anyone with specialized knowledge and training that would be useful in making a final, binding decision on a dispute |
| Minitrial | short discovery; judge issues non-binding decision; purpose is to encourage settlement |
| Summary Jury Trial | jury issues non-binding verdict; purpose is to encourage settlement |
| Federal Mediation Service | ?? |
| Negotiation | least formal of ADR;communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them |
| Arbitration Hearing | where evidence is taken in an arbitration |
| Mediation | involves a mediator who attempts to get parties to make their own agreement, a binding contract or settlement |
| Award | arbitrator's final decision on a case |
| Compulsory Arbitration | a contract prior to dispute requires arbitration when there is a dispute |
| Voluntary Arbitration | agreed arbitration at time of dispute by parties |
| Early Neutral Evaluation | another form of ADR; aims to position the case for early resolution by settlement, dispositive motion or trial |
| Adversarial System | litigation in the US operates under the assumption that two "adversarial" sides (plaintiff and defendant) present their opposing cases to a third party |
| Peremptory Challenge | apart of voir dire; no cause required to dismiss a potential juror, but these are limited in number |
| Considerations in Bringing or Defending a Lawsuit: For Plaintiff | some wrongs do not have legal remedy, some that do, though, may not be successfully pursued in a court b/c of cost or difficulty of proof, money/time (costly, takes 3-4 years), emotional costs (e.g.,Harris), & will a lawyer take the case? |
| Motion for Directed Verdict | a trial/post trial motion; by defendant after presentation of evidence by plaintiff |
| Complaint | similar to summons; document filed with court laying out the basis of the claim (alleges the facts) |
| Closing Argument | ending of presentation of evidence in a civil lawsuit; order: 1. plaintiff (direct/cross) 2. defendant (direct/cross) 3. rebuttal 4. closing arguments |
| Service of Process | to give the defendant (the person not filing suit) notice of any lawsuit against him/her |
| Jury Instruction | are a set of legal guidelines given by a judge to a jury in a court of law; helps jury reach verdict |
| Response | response to summons/complaint; includes (1) Answers (2) Motion to dismiss (3) Counterclaim |
| Verdict | unanimous in the traditional rule |
| Answer | response by defendant to summons/complaint; denying or admitting allegations in the complaint |
| Motion for a New Trial | a trial/post trial motion; by loser of trial, after verdict |
| Motion to Dismiss | response by defendant to summons/complaint; basically saying "so what?" |
| Counterclaim | response by defendant to summons/complaint; a claim for damages by the defendant against the plaintiff |
| Discovery | a period in a civil lawsuit where the parties are allowed to discover information about the case from the other side prior to the trial (key issues: time, money, intrusion (breadth)) |
| Depositions | type of discovery; oral questions under oath |
| Interrogatories | type of discovery; written questions |
| Request for Documents | type of discovery; emails, bank records, phone records |
| Pretrial Conference | scheduling issues, among other things, are considered (e.g., what can the judge do? why is this an opportunity?) |
| Motion for Summary Judgment | a motion request to avoid trial; generally by defendant; aim is to have judge decide the case based on the law and facts developed in depositions before a trial, routinely made, judge cannot decide any disputed facts |
| Voir Dire | jury selection; 6-12 are typical numbers selected; jury is chosen from place of the trial |
| Challenge for Cause | apart of voir dire; potential jurors can be excused if incompetent of biased; these challenges are unlimited |
| Attorneys | you can hire an attorney or represent yourself Hourly rate - charged by the hour Contingency - you pay them if you win Flat/task - they know in advance the price of the issue |
| Appeal | usually the loser at the trial has a right to appeal in civil cases |
| Key issues allowed for an appeal: | 1. The appeal is based on legal errors at trial (no opportunity to retry facts) 2. No new evidence is allowed 3. Procedure: parties submit written "briefs" and may make a short oral argument |
| Key issues allowed for an appeal pt2: | 4. Cost and time are factors in deciding to appeal 5. Court may "reverse" or "affirm" the trial court Appeals courts often publish opinions, this crates precedent binding in future cases |
| Considerations in Bringing or Defending a Lawsuit: For Defendant | settlement option, lawsuits don't help fix relationships, lawsuits are not private, costs (money, emotional, time), corporate strategy (is this to send a message?) |
| Arbitration Process | (1) parties choose the arbitrator (2) there is a hearing (3) award by the arbitrator(4)generally no appeal - sometimes discovery, sometimes not |
| Motion for Judgement Notwithstanding the Verdict | a trial/post trial motion; by loser, after verdict, asks judge to overturn |
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