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Business Law Test #1
Test #1
| Question | Answer |
|---|---|
| Common Law? | judge made law. |
| #1 Factor influencing our common law? | decisions of the court. |
| The French based common law on the... | will of the people. |
| Civil Law System? | based on the people. |
| Combination Laws= | the United States. |
| Criminal Law vs. Civil Law | combination laws. |
| Burden of Proof= | decides the outcome. |
| Q. What is the burden of proof in a criminal case? | beyond a resonable doubt! |
| Reasonable Doubt? How high needed to convict? | 0-100; 95 or greater needed to convict. |
| Double Jeopardy? | Multiple criminal prosecutions by the same sovereign are not permitted. Someone found "not guilty" can still be sued. |
| Q. New evidence is discovered just after the jury's "not guilty" verdict. Can the prosecution "try again"? | No way! They only get one shot. No effect of civil cases. |
| Q. Can the prosecution call it something else? For example, if a person was found not guilty of rape, can he be prosecuted for assault and battery? | Not a chance! BUT another state can! |
| Sources of Law | 1. constitutions 2. legislation 3. administrative regulations 4. executive orders 5. case law (aka. common law) |
| Constitution | bases for our law. constitutional law: state and federal. A. the doctrine of "state action" B. two famous constitutional doctrines: due process and equal protection. |
| Due Process | government can't deprive you of freedom and property without hearing and trial.(in the 5th and 14th amendment) |
| Equal Protection | must be treated the same, unless valid reason. ex. underage beer buying! (found in the 14th amendment) |
| Case Law, aka: | Common Law or State Decisis - state courts and their rights to interpret state law. - on matter of law, the state courts are supreme. |
| According to case law... does one state have to follow precedents in other states? | No. |
| On matters of federal law, dofed courts have to follow precedents in other circuts. Which is Arkansas in? | in the 8th, St. Louis |
| Introduction to Civil Litigation: | 1. the civil courts are available to anyone. 2. more lawsuits are filed per capita in the US than any other country. 3. in AR, we have fewer lawsuits per capita than 90% of the states. 4. in AR, we have about the same # of tort suits as 5 yrs. ago |
| Role of the Attorney | Adcersary System |
| Role of the Jury | in both civil and criminal cases, a jury is possible upon request of either party. |
| Jury rules on matters of.. | FACT |
| Judge rules on matters of.. | LAW |
| Jurisdiction: | the power of a court to hear a case. |
| Jurisdiction in Cyberspace: | A. the sliding scale standard B. targeting the economic market of a particular state C. forum selection clauses. |
| Q. How valueable is a trial decision as a "legal precedent?" | A. none. a case must be appealed before it can set a precedent. |
| Q. How do you find a case which has been appealed? | law library or online? |
| Jurisdiction over the Subject Matter: | Exclusive: US is a party, bankruptcy, copyrights, patents. |
| Concurrent | Federal question: diversity, pluss $75,000 NOTE: in diversity cases, federal judges apply state law. |
| State Courts: | anything that is not exclusive to the federal courts. |
| Complaint: | (file when suing someone) |
| Service of Process: | first step after filing suit |
| Answer: | counter-claim and cross-complaint. Must answer timely before going to court. |
| Discovery: | interrogatories and desposition(NOT used in lieu of actual testimony) "best surprise is no surprise" |
| Trial: | Jury selection and "voir dire"-challenges for cause and peremptory challenges. |
| Learning about potential jurors.. | you can eliminate 3 for constitutional reasons ONLY! not based on sex or race. |
| Opening Statements | first step! tells the jury what is going to be proved. |
| Testimony | Direct v. Cross-Examination. witnesses speak. |
| No hearsay | statement made by someone not in court, can't be used in court. |
| Criminal Cases | prior convictions not admissable. |
| Closing Statements | recap of testimony and evidence made. |
| Verdict | does it have to be unanimous? in civil? NO in criminal? YES |
| Summary Judgement | can stop the trial before it even starts. Ex. waiting too long after incident. |
| Directed Verdict | the party with the burden of proof always goes first (plantiff) |
| Judgement NOV | after the trial is over, if a jury comes back with verdict that can't be supported (DUMB) the judge has the authority to substitue his own verdict. He is questioning the integrity of the jury. Seldom granted, often asked for. |
| Q. If the debtor cannot or will not pay the judgement, can he be sent to prison? | A. NO! Exceptions: alimony and child support. |
| Class Action Suit | Everyone involved agrees so the judge can allow one big suit against a common defendent. |
| Reasons for Alternative Dispute Resolution | -Speed -Low Cost -Avoid all or none result |
| Mediation | bringing in a 3rd party to come up with compromise "deal maker" NEVER BINDING! |
| Arbitration | (contract disputes) 3rd party will decide who's right and wrong. -don't go to court! -ALWAYS BINDING! |
| Colleciton of Judgements | all non-exempt assests can be siezed (what is exempt varies from state to state) Also, a debtor's wages can be seized. NO DEBTOR'S PRISON!! |
| Tort Law | Facts are KEY! |
| Tort Reform | most common: cap on punitive damages<-- Arkansas tort reform |
| Intentional Tort: Intentional Personal Injury, including.. | -Assault: attempted injury= worthless -Battery: actual injury= worth more -Wrongful Death: (ultimate battery) Defenses: "reasonable force" or "deadly force" (limited) |
| Intentional Tort: False Impisonment | if reasonable suspision--> shopkeeper's privilage |
| Intentional Tort: Intentional Infliction of Emotional Distress | "near misses?" action must EITHER result in physical injury,or the action must be completely intolerable in society |
| Intentional Tort: Deffemation | Libel: written Slander: oral |
| Four forms of Invasion of Privacy | Intrusion upon seclusion (video camera in bathroom) Public Disclosure of Private Facts False Light Misappropriation (use of character w/o consent) |
| Torts against property: | -trespass -slander -conversion(talking) |
| Basic elements of Unintentional Torts | -Duty -Breach of Duty -Causation -Damages |
| Breach of Duty | the famous "reasonable man" test: "failure to use that degree of care which a reasonable person would have excerised in similar circumstances" |
| Proving Breach of Duty | -preponderance of evidence -affirmative defenses: contributory negligence(comparative fault) -assumption of risk |
| Test Review! | Contributory Neglient= $0 BUT if Arkansas, subtract the %!!! Tort Reform= punitive! |
| Causation | the failure to excericise reasonable care must have caused the victim harm. |
| Damages: | -property -medical -loss of earnings -pain and suffering -loss of consortium -punitive(if intentional or extreme) |
| Definition of a Contract | :an agreement that a court is willing to enforece |
| Elements:(KNOW THESE!) | -agreement -consideration -capacity -legality FAIRNESS IS NOT AN ELEMENT |
| Sources of Contract Law | -common law of contracts -restatement of contracts -uniform commercial code= same nationwide. only consumer goods, ex. gatorade |
| Types of Contracts | bilateral vs. unilateral |
| Bilateral Contract | 2 promises. "i promise...you promise" ex. sales contracts |
| Unilateral Contract | 1 promise. promise in exchange for service. ex. pay for plumbing. ex. Carbolic Ball Case |
| Express-Implied | ex. going to the dentist and refusing to pay |
| Exectory-Executed | Executory: not done Execute: done deal |
| Void-Voidable | Void: contrary to law. can't be enforced. ex. illegal substance Voidable: one party has special rights. ex. underage minors. (ALWAYS voidable) |
| The agreement of a contract | "the expression of wilingness to enter into a legally binding agreement" -an ad is NOT an offer, it's an invitation to negotiate -an offer must be communicated! -must contain reasonably definite terms -can withdraw from a contract until accepted |
| Consideration in a Contract | "the price which a person charges for a person" -a bargained for exchange -adequacy of consideration |
| Capacity in a Contract | Minors: voidable by the minor ONLY. must act while still a minor or in reasonable time after becomming an adult. -intoxicated -insane |
| Legality in Contract | ex. -gambling -license -exculpatory clauses -convenants not to complete: -reasonable purpose -time/area |
| Vices of Consent in Contract | -mistake -fraud -misrepresentation -duress -adhesion contracts and unconscionability |
| Statue of Frauds in Contract | -sale of land -contract which cannot be completed in one year -promise to stand behind the debt of another -sale of goods greater than $500 |
Created by:
RazorbacksGirl
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