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MANGMT 1010: EXAM 1
law |
a body of rules enforced by a government |
the rule of law |
the concept that no one is above the law, and that no one can be convicted of breaking the law except as the law provides; all are subject to the same laws |
contract |
a legally enforceable promise or set of promises |
breach of contract |
a failure to fulfill contractual obligations |
tort |
a civil wrong other than breach of contract for which the law provides a remedy |
negligence |
an unintentional violation of a legal duty to use a standard of care |
common law |
a legal system of court-made law where the rules are derived from previously decided cases |
stare decisis |
the legal doctrine that requires courts to follow previous decisions called precedents |
judicial review |
doctrine that courts determine the constitutionality of statutes
|
cause of action
|
a stated set of facts giving rise to a valid lawsuit |
plaintiff
|
the party which files a lawsuit against another party |
defendant
|
the person against whom a lawsuit is filed |
Natural law school |
the theory that law comes from unchangeable principles evident from nature or inspired by God |
traditional (historical) school |
law which has worked in the past is best suited to shape present law |
legal realist school |
there is no uniform way to interpret the law; result oriented, considering the parties on the society |
positivist school |
government's rules are supreme |
US Constitution |
the supreme law of the land |
statutes and treaties |
acts of Congress and treaties entered by the President and approved by the Senate |
administrative rules |
laws adopted by administrative agencies |
Case law |
the law established by courts particularly in the areas of contract and tort law |
uniform codes |
statutory schemes compiled by experts to be adopted by state legislatures to help ensure consistency of the law in all the states
|
restatements |
common law schemes compiled by experts to influence and encourage nationwide consistency |
agencies
|
a unit of the executive branch regulating a certain area |
independent agency
|
an agency designed to be free from the direct authority of the president or governor |
executive agency |
an agency whose head is directly subject to the president
|
criminal law |
involves wrongs against society punished by the state through prosecution |
civil law |
involves wrongs against persons or entities enforced by lawsuits to obtain money or other remedies for the victims |
substantive law
|
defines rights and duties |
procedural law |
defines the method or process by which violations of rights or duties will be enforced |
origins of common law courts |
a uniform set of laws derived from following precedents in England
|
origins of equity courts |
created by the king because people whose problems could not be solved by common lawsuits would petition the king |
adjudication |
the process of litigation resulting in a binding final judgment |
res judicata |
"Its been decided"; an issue decided in one case between parties is binding upon the parties in another case betwe |
class action |
one or more members of a group of injured parties sues on behalf of the group |
standing |
a person needs a tangible interest in a lawsuit to sue or become a party |
jurisdiction
|
"to speak the law" - the authority of a court to decide a case |
proper venue |
the place where a case may validly be decided under the law
|
adversary system |
a trial system where the evidence where the evidence is presented by party opponents, rather than through questions of a judge |
evidence |
the testimony of witnesses and the documents and objects admitted to consideration as part of that testimony |
Four levels of courts in order of priority |
-supreme court
-court of appeals
-circuit court of county
-courts of limited jurisdiction |
Supreme Court
|
the highest appellate court in both the state and federal system |
court of appeals |
the intermediate appellate courts-typically the first court to which an aggrieved party may appeal |
circuit court of county |
the trial court general jurisdiction in which most important cases are filed |
courts of limited jurisdiction |
courts whose authority is limited by subject matter of the amount or the amount in controversy |
personal jurisdiction
|
jurisdiction over the defendant |
subject matter jurisdiction
|
jurisdiction over the type of lawsuit |
federal court jurisdiction
|
federal courts have subject matter jurisdiction over cases which involve a question of federal law |
diversity of citizenship |
federal courts have jurisdiction over cases where the parties are from different states and the amount involved |
state courts |
have subject matter jurisdiction over all cases where there is not exclusive federal jurisdiction |
exclusive jurisdiction |
either a federal or state court is the only court which may here a case |
concurrent jurisdiction |
both the federal and state courts have jurisdiction over the type of case |
arbitration |
a binding process in which an arbitrator hears evidence and enters an enforceable decision |
negotiation |
an attempt by disputing parties to resolve their dispute informally, with or without attorneys present |
mediation |
a nonbinding process in which a mediator aids parties in negotiating a dispute |
summary trial jury |
a shortened trial before an unofficial jury which makes a nonbinding, advisory decision, often ordered by a judge in complex cases to help the parties settle the case |
mini trial |
a shortened trial before an unofficial judge, who makes a nonbinding decision |
6 stages of a lawsuit |
-pleadings
-discovery
-pre trial motions
-trial
-post trial motions
-appeal |
complaint |
initiates the lawsuit; attempts to state one or more causes of action |
default judgment |
judgment on the issue of liability entered against a defendant who fails to appear or otherwise respond to a court order |
counterclaim |
defendant's pleading stating a cause of action against the plaintiff |
discovery |
the process of gathering information from parties or nonparties prior to trial |
interrogatories |
written questions sent to a party which must be answered in writing and under oath |
request for admissions
|
written statements sent to a party which must be admitted or denied |
request for production |
a written request sent a party requiring the delivery of documents or objets at a specified place and time |
deposition |
an inperson oral examination of a party or a non party witness under oath |
pretrial motions
|
motions filed in the case prior to the time trial begins
|
movant |
the person who files a motion |
motion to dismiss |
a motion typically filed by the defendant, asking the court to throw out the petition |
motion for summary judgment |
a motion which may be filed by any party asking for a judgment based upon affidavits and the sworn evidence uncovered during discovery |
voir dire |
"to tell the truth"; the potential jurors are questioned under oath about bias or prejudice against or in favor of one of the partis |
opening statement
|
a statement of the evidence the parties intend to present at trial |
trial motions |
filed in court during the trial |
direct examination
|
questions by the party who calls the witness |
cross examination |
question by the other party |
redirect examination |
new questions to a party's witness to eliminate damage or confusion to the case caused by cross examination |
closing arguments/summation |
the opportunity of the parties' attorneys to summarize their case and all the inferences of the evidence and to make a logical or emotional argument to the jury |
rebuttal by plaintiff |
calling new witnesses to contradict the evidence produced by the defendant |
post trial motions |
motions filed after trial, seeking no change in the result |
motion for new trial
|
a request that the court throw out the decision and grant the movant a new trial |
motion for judgment nov |
a request that the court throw out the judgement because based up on the evidence the jury's decision was legally invalid in that the plaintiff failed to produce evidence necessary to support the verdict |
appeal |
a request by an aggrieved party to an appellate court to change a trial court's decision |
five phases of an appeal |
1. notice of appeal, timely filled, initiates the appeal
2. trial record filed
3. parties brief issues
4. oral argument
5. decision |
affirm |
let the decision stand |
reverse |
throw out the decision or enter an opposite direction |
tortfeasors |
person committing a tort |
joint and several liability |
allows victim to collect total damages from one or from all joint tortfeasors |
intent |
purpose to do the act is all that is required-do not have to intend harm or results. |
nonfeasance |
failure to act |
assault |
an intentional act causing immediate expectation of injury or offensive contract to another person |
battery |
an intentional act causing another person injury or offensive contact |
consent |
when the victim agrees to the physical contact |
self defense |
the privilege to use the amount of force reasonably necessary to repel real or apparent danger |
defense of others |
the privilege to use the amount of force reasonably necessary to repel real or apparent danger to property |
defense of property |
the privilege to use the amount of force reasonably necessary to repel real or apparent danger to property |
the castle doctrine |
the ability to use deadly force to protect one's home when you are there and someone tries to enter without permission |
false imprisonment |
the intentional detention of another within boundaries for any length of time, with that person's knowledge and without consent |
shopkeeper's privilege |
a merchant with reasonable cause to suspect shoplifting may detain a suspect in a reasonable manner for a reasonable length of time |
intentional infliction of emotional distress |
an intentional act of extreme or outrageous nature causing extreme emotional distress |
defamation |
a publication of a defamatory, false statement of fact |
absolute priviledge |
statements made during government hearings are not proper cause for defamation lawsuit |
conditional priviledge
|
statements made as a matter of defendant's business interest are not actionable unless made with actual malice |
fraudulent misrepresentation |
intentional misrepresentation of material fact, reasonably relied on by plaintiff, resulting in damages |
trespass to land |
intentional entry onto the land of another without permission |
trespass to chattels |
intentional damaging or deprivation of another's person's property
|
conversions |
intentional retention or severe damaging of another's personal property |
nuisance |
the unjustified interference with the use or enjoyment of another's real estate |
negligence
|
an unintentional violation of a legal duty to use standard of care |
comparative negligence |
the recovery of the plaintiff is reduced by the plaintiff's percentage of fault in causing the damages |
contributory negligence |
the recovery of the plaintiff is barred by any negligence of the plaintiff in causing damages |
assumption of risk |
the recovery of the plaintiff is barred if the plaintiff voluntarily encounters a known risk |
sovereign immunity
|
can only sue the government if it gives you permission |
official immunity |
cannot recover from government officials if the act complained of involves a matter of policy and there was no malice by the official |
employer liability |
the employer is liable for torts of employee in scope and course of employment |
strict liability |
liability without fault, no need to prove an intentional or negligent act |
ultra hazardous activity |
an activity so abnormally dangerous that the actor is the guarantor of the safety |
constitutional protections |
protection against unreasonable search and seizure |
right to remain silent |
fifth amendment right not to be compelled to testify against yourself in a criminal trial |
protection against double jeopardy |
fifth amendment right a criminal defendant may not be tried twice for the same offense |
right to counsel |
sixth amendment right to have an attorney represent you if you are a criminal defendant |
right to notice of charges |
sixth amendment right to be informed of the exact criminal charge against you |
right to confront witnesses |
sixth amendment right to have witnesses testify in front of you and to cross examine the witness |
right to speedy trial by witness |
sixth amendment right to be tried quickly and to have a jury decide guilt or innocence |
arrest |
deprivation of freedom of movement by a police officer |
indictment |
a criminal charge filed by a grand jury |
information
|
a criminal charge filed by a prosecutor |
arraignment
|
formal reading of charges |
plea bargaining |
an agreement by the defendant to plead guilty in exchange for a lesser charge or a fixed punishment |
disclosure |
the process of gathering information prior to trial in a criminal case |
habeas corpus |
right to challenge basis for incarceration |
actus reus |
the unlawful act |
mens rea |
the required criminal intent |
forgery |
the fraudulent making or altering a document to change its legal effect |
robbery |
stealing from someone's person by force or threat of force
|
burglary |
breaking and entering a building with the intent to commit a crime inside |
larceny |
a wrongful taking of another's property with the intent to permanently deprive the owner of it |
embezzlement |
misappropriating property entrusted to your possession for personal purposes |
arson |
burning a building of another or burning a building defraud insurance |
money laundering |
using a legitimate business to disguise the source of illegal profits
|
bribery |
offering money or property to obtain in illegitimate political or commercial advantage |