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Constitutional Law
The law as expressed in the U.S. Constitution and the state constitutions. The U.S. Constitution is the supreme law of the land. State constitutions are supreme within state borders to the extent that they do not violate a clause of the U.S. Constitution or a federal law. TERM 2
Statutory Law
DEFINITION 2 Laws (statutes and ordinances) enacted by federal, state, and local legislatures and governing bodies. None of these laws may violate the U.S. Constitution or the relevant state constitution. Uniform laws, when adopted by a state, become statutory law in that state. TERM 3
Administrative Law
DEFINITION 3 The rules, orders, and decisions of federal, state, or local government administrative agencies. TERM 4
Case Law and Common Law
Doctrines
DEFINITION 4 Judge-made law, including interpretations of constitutional provisions, of statutes enacted by legislatures, and of regulations created by administrative agencies. TERM 5
Origins of the Common Law
DEFINITION 5 The American legal system is based on the common law tradition, which originated in medieval England. Following the conquest of England in 1066 by William the Conqueror, kings courts were established throughout England, and the common law was developed in these courts.
Legal and Equitable Remedies
The distinction between remedies at law (money or items of value, such as land) and remedies in equity (including specifi c performance, injunction, and rescission of a contractual obligation) originated in the early English courts of law and courts of equity, respectively. TERM 7
Case Precedents and the Doctrine of Stare
Decisis
DEFINITION 7 In the kings courts, judges attempted to make their decisions consistent with previous decisions, called precedents. This practice gave rise to the doctrine of stare decisis. This doctrine, which became a cornerstone of the common law tradition, obligates judges to abide by precedents established in their jurisdictions. TERM 8
Stare Decisis and Legal
Reasoning
DEFINITION 8 Legal reasoning is the reasoning process used by judges in applying the law to the facts and issues of specifi c cases. Legal reasoning involves becoming familiar with the key facts of a case, identifying the relevant legal rules, applying those rules to the facts, and drawing a conclusion. In applying the legal rules to the facts of a case, judges may use deductive reasoning, linear reasoning, or reasoning by analogy. TERM 9
Natural Law School
DEFINITION 9 One of the older and more signifi cant schools of legal thought. Those who believe in natural law hold that there is a universal law applicable to all human beings. This law is discoverable through reason and is of a higher order than positive (national) law. TERM 10
Positivist School
DEFINITION 10 A school of legal thought centered on the assumption that there is no law higher than the laws created by the government. Laws must be obeyed, even if they are unjust, to prevent anarchy.
Administrative Law
consists of the rules,orders, and decisions of administrative agencies TERM 17
Administrative Agency
DEFINITION 17 a federal, state, or localgovernment agency established to perform a specific function TERM 18
Executive
Agencies
DEFINITION 18 are subject tothe authority of the president, who has the powerto appoint and remove their officers TERM 19
Independent Regulatory
Agencies
DEFINITION 19 the presidentspower is less pronounced in regard to independentagencies, whose officers serve for fixedterms and cannot be removed without just cause. TERM 20
Case Law
DEFINITION 20 the doctrines and principlesannounced in casesgoverns all areas not covered by statutory law or administrative law and is part ofour common law tradition
Common Law
a body of general rulesthat applied throughout the entire English realm TERM 22
Remedies
DEFINITION 22 the legal means to enforce aright or redress a wrong TERM 23
Remedies at Law
DEFINITION 23 Today, it normallytakes the form of monetary damages TERM 24
Courts of Law
DEFINITION 24 courtsthat awarded compensation TERM 25
Damages
DEFINITION 25 anamount given to a party whose legal interests havebeen injured
Stare
Decisis
(a Latin phrase meaning to stand ondecided cases) under this doctrine, judges are obligated to follow the precedents established within their jurisdictionshas two aspects: first,that decisions made by a higher court are bindingon lower courts; and second, that a court should notoverturn its own precedents unless there is a compellingreason to do so TERM 32
Jurisdiction
DEFINITION 32 refers to a geographic areain which a court or courts have the power to apply the law TERM 33
Binding Authorities
DEFINITION 33 is any source of law that a court mustfollow when deciding a case. Include constitutions, statutes, and regulations thatgovern the issue being decided, as well as court decisionsthat are controlling precedents within thejurisdiction TERM 34
Cases of First Impression
DEFINITION 34 thecourts must decide cases for which no precedentsexist TERM 35
Legal Reasoning
DEFINITION 35 is the reasoning process usedby judges in deciding what law applies to a given dispute and then applying that law to the specificfacts or circumstances of the case. Through the useof this reasoning, judges harmonize their decisions with those that have been made before, as the doctrineof stare decisis requires
Deductive/Syllogistic Reasoning
a logical relationship involvinga major premise, a minor premise, and a conclusion TERM 37
Linear Reasoning
DEFINITION 37 proceeds from onepoint to another, with the fi nal point being the conclusion TERM 38
Analogy
DEFINITION 38 is tocompare the facts in the case at hand to the factsin previous cases and, to the extent that the patternsare similar, to apply the same rule of law to the present case TERM 39
Jurisprudence
DEFINITION 39 involves learning about differentschools of jurisprudential thought and discoveringhow the approaches to law characteristic of eachschool can affect judicial decision making TERM 40
Civil Law
DEFINITION 40 the rights and duties thatexist between persons and between persons and their governments, as well as the relief availablewhen a persons rights are violated
In rem jurisdiction
jurisdiction over the thing.exercise jurisdiction over propertythat is located within its boundaries TERM 47
Long Arm Statute
DEFINITION 47 a court can exercise personaljurisdiction over certain out-of- state defendants based on activities that took place within the state. Must demonstrate minimum contacts first TERM 48
Minimum Contacts
DEFINITION 48 this means thatthe defendant must have enough of a connection tothe state for the judge to conclude that it is fair forthe state to exercise power over the defendant TERM 49
Probate Courts
DEFINITION 49 are state courts that handle onlymatters relating to the transfer of a persons assetsand obligations after that persons death, includingissues relating to the custody and guardianship ofchildren TERM 50
Personal Jurisdiction
DEFINITION 50 Exists when a defendant is located within the territorial boundaries within which a court has the right and power to decide cases. Jurisdiction may be exercised over out-of-state defendants under state long arm statutes. Courts have jurisdiction over corporate defendants that do business within the state, as well as corporations that advertise, sell, or place goods into the stream of commerce in the state.
Property Jurisdiction
Exists when the property that is subject to a lawsuit is located within the territorial boundaries within which a court has the right and power to decide cases. TERM 52
Subject Matter Jurisdiction
DEFINITION 52 Limits the courts jurisdictional authority to particular types of cases. 1. Limited jurisdictionExists when a court is limited to a specifi c subject matter, such as probate or divorce. 2. General jurisdictionExists when a court can hear cases involving a broad array of issues. TERM 53
Original Jurisdiction
DEFINITION 53 Exists with courts that have the authority to hear a case for the first time (trial courts). TERM 54
Appellate Jurisdiction
DEFINITION 54 Exists with courts of appeal and review. Generally, appellate courts do not have original jurisdiction. TERM 55
Federal Jurisdiction
DEFINITION 55
- Federal questionsA federal court can exercise jurisdiction when the plaintiffs cause of action is based at least in part on the U.S. Constitution, a treaty, or a federal law. 2. Diversity of citizenshipA federal court can exercise jurisdiction in cases between citizens of different states when the amount in controversy exceeds $ 75,000, between a foreign country and citizens of a state or of different states, or between citizens of a state and citizens or subjects of a foreign country.
Trial Courts
Trial courts are courts of original jurisdiction in which actions are initiated. 1. State courtsCourts of general jurisdiction can hear any case that has not been specifi cally designated for another court; courts of limited jurisdiction include domestic relations courts, probate courts, and small claims courts. 2. Federal courtsThe federal district court is the equivalent of the state trial court. Federal courts of limited jurisdiction include the bankruptcy courts TERM 62
Intermediate Appellate Courts
DEFINITION 62 Courts of appeals are reviewing courts; generally, appellate courts do not have original jurisdiction. About three-fourths of the states have intermediate appellate courts; in the federal court system, the U.S. circuit courts of appeals are the intermediate appellate courts. TERM 63
Supreme Courts
DEFINITION 63 The highest state court is that states supreme court (it may be called by another name). Appeal from state supreme courts to the United States Supreme Court is possible only if a federal question is involved. The United States Supreme Court is the highest court in the federal court system and the fi nal arbiter of the Constitution and federal law. TERM 64
voir dire
DEFINITION 64 The juryselection process; attorneys askoral questions to determine whether a potentialjury member is biased or has any connection with aparty to the action or with a prospective witness TERM 65
Opening
Statements
DEFINITION 65 Each partys attorney is allowed to present an opening statement indicating what the attorney will attempt to prove during the course of the trial.
Rules of Evidence
a series of rules that have been createdby the courts to ensure that any evidence presentedduring a trial is fair and reliable TERM 67
Relevant Evidence
DEFINITION 67 evidence that tends to prove or disprovea fact in question or to establish the degree ofprobability of a fact or action TERM 68
The Pleadings
DEFINITION 68
- The plaintiffs complaintThe plaintiffs statement of the cause of action and the parties involved, fi led with the court by the plaintiffs attorney. After the fi ling, the defendant is notifi ed of the suit through service of process. 2. The defendants responseThe defendants response to the plaintiffs complaint may take the form of an answer, in which the defendant admits or denies the plaintiffs allegations. The defendant may raise an affi rmative defense and/or assert a counterclaim. TERM 69
Pretrial Motions
DEFINITION 69
- Motion to dismissMay be made by either party; requests that the judge dismiss the case for reasons that are provided in the motion (such as failure to state a claim for which relief can be granted). 2. Motion for judgment on the pleadingsMay be made by either party; will be granted only if no facts are in dispute and only questions of law are at issue. 3. Motion for summary judgmentMay be made by either party; will be granted only if no facts are in dispute and only questions of law are at issue. Unlike the motion for judgment on the pleadings, the motion for summary judgment may be supported by evidence outside the pleadings, such as testimony and other evidence obtained during the discovery phase of litigation. TERM 70
Discovery
DEFINITION 70 The process of gathering evidence concerning the case; involves (1) depositions (sworn testimony by either party or any witness); (2) interrogatories (in which parties to the action write answers to questions with the aid of their attorneys); and (3) requests for admissions, documents, examinations, or other information relating to the case. Discovery may also involve electronically recorded information.
Negotiation
- simplest form of ADR- parties come together informally, with or without attorneys to represent them- being well- prepared results in a likely favorable outcome TERM 77
Mediation
DEFINITION 77
- one of the oldest forms of ADR- a neutral third party acts as a mediator & works with both sides in the dispute to facilitate a resolution- emphasizes points of agreement between parties- may propose a solution, called a mediator's proposal- mediator is selected by the parties based on their expertise in the relevant field TERM 78
Arbitration
DEFINITION 78
- more formal method of ADR- neutral third party or panel of experts hears a dispute & makes a decision for both parties- parties can agree to legally binding or nonbinding arbitration TERM 79
The Federal Arbitration Act
DEFINITION 79
- does not establish a set arbitration procedure- the parties must agree on the manner of resolving their dispute- provides the means for enforcing the procedures that the parties have chosen-covers any arbitration clause in a contractthat involves interstate commerce TERM 80
The Arbitration Process
DEFINITION 80
- Submission - referring a dispute to an arbitrator2. Hearing
- evidence and arguments are presented to the arbitrator3. Award - the decision of the arbitrator (must be made within 30 days of closing the hearing)
American Arbitration Association (AAA)
- major source or private arbitration- has offices in every state & settles over 200,000 disputes per year- non profit organization- cases are heard by experts in the relevant field- provides services for international and domestic disputes TERM 82
Online Dispute Resolution
(ODR)
DEFINITION 82
- dispute resolution services using the Internet- most commonly involve disagreements over the rights to domain names or disagreements over the quality of goods sold online TERM 83
Moral Minimum
DEFINITION 83 minimum acceptable standard for ethical business behavior considered to be in compliance with the law TERM 84
Sarbanes-Oxley Act
DEFINITION 84 requires companies to set up confidential systems, sometimes online, so that employees can "raise red flags" about suspected illegal activities and unethical auditing or accounting practices TERM 85
Stock buyback
DEFINITION 85
- management of corporations believe their stock prices are "below fair value"- instead of issuing dividends to shareholders, management uses the company's funds to buy its shares in the open market, thereby boosting the price of the stock- management benefits by selling their shares and making profit- stock buyback is legal, but will most likely result in only short-run profit
Federal form of government
the national government and the states share sovereign power TERM 92
Sovereignty
DEFINITION 92 is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations. TERM 93
Police powers
DEFINITION 93
- state regulatory powers- refers to the right of state governments to regulate private activities to protect or promote the public order, health, safety, morals, and general welfare TERM 94
Privileges and Immunities
Clase
DEFINITION 94 prevents the state from treating the nonresident differently from the resident when engaging in business activities in another state; such as, transferring property, seeking employment, accessing the court system TERM 95
Full faith and credit clause
DEFINITION 95
- applies only to civil matters- it ensures that rights established in one state under deeds, wills, and contracts will be honored in another state- also ensures that any judicial decision with respect to such property rights will be honored and enforced in all states- promotes mutual friendship among people from different states
Checks &
balances
allows each branch to limit the actions of the other 2 branches, preventing any one branch from exercising too much power TERM 97
Three branches of government
DEFINITION 97
- Legislateive - makes the laws2. Executive - enforces the laws3. Judicial - interprets the laws TERM 98
Commerce clause
DEFINITION 98
- has had the greatest impact on business than any other provision in the constitution- provides the basis for the national government's regulation of state and local affairs (regulates business activities) TERM 99
Supremacy clause
DEFINITION 99
- provides that the constitution, laws, and treaties of the US are "the Supreme Law of the Land."- when there is a conflict between the federal and state laws, the state law is said to be invalid- concurrent - when powers are shared by the federal gov and the states TERM 100
Preemption
DEFINITION 100 when congress chooses to act exclusively in an area in which the federal gov and the states have concurrent powers- prevents the federal gov or states from acting/making a decision
