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324 Cards in this Set
- Front
- Back
law
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rules laid down by the state and backed up by enforcement
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rule of law
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the general and equal application of laws, even to lawmakers
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property
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a legal right that allows you to exclude others from your resources
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jurisprudence
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the philosophy of law
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common law legal system
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a legal system that emphasizes role of judges in determining the meaning of laws and how they apply
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civil law legal system
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legal system that relies more on legislation than judicial decisions to determine law
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public law
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classification of legal matter that regulates the relationship of individuals/organizations to society
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constitutional law
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public law, interpretation and application of either federal or state constitutions
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administration law
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public law; legal principles that apply to government agencies, bureaus, boards, or commissions
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criminal law
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public law, various offenses against the proper order of the state
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private law
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classification of legal matter that deals with the relationship between legal entities (ex: between people)
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property law
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private law, involves the recognition of exclusive right in both tangible and intangible resources
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contract law
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private law, rules of how owners transfer resources by exchanging them
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tort law
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private law, establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another
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substantive law
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defines the legal relationship between people or between people and the state
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legislation
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formal written laws created and adopted by elected representatives serving in the legislative branch of government
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statute/act
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legislation adopted by Congress or a state legislature
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ordinance
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laws passed by local government
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codes
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compilations of legislation at all levels of government
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Uniform Commercial Code (UCC)
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uniform law across states which simplifies, clarifies, and modernizes the laws governing commerical transactions
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statutory construction
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rules courts use in interpreting the meaing of legislation
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opinion
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the decision of a judge, usually issued in a written form
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precedent
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a prior judicial decision relied upon as an example of a rule of law
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citation
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the reference identifying how to find a case
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stare decisis
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Latin for "let the prior decision stand", doctrine that traditionally indicates that a court should follow prior decisions in all cases based on substantially similar facts
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dicta
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statements made in a judicial opinion that are not essential to the decision of the case
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holding
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the precise legal response in an opinion by an appellate court on an issue of law raised on appeal
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constitutional relativity
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the idea that courts should understand the meaning of the Constitution relative to the time in which they interpret
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conflicts of law
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rules of law the courts use to determine that substantive law applies when there is an inconsistency between laws of different states or countries
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sanctions
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penalties imposed for violation of a law
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remedy
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the action/procedure followed in order to enforce a right or obtain damages for injury to a right; the means by which a right is enforced or the violation of a right is prevented, redressed, or compensated
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breach of contract
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when one party to a contract fails to do what (s)he agreed to do
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compensatory damages
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usually awarded in breach of contract cases to pay for a party's losses that are a direct and forseeable result of the other party's breach; the award of these damages is designed to place the nonbreaching party in the same position as if the contract had been performed
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specific performance
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euitable remedy that requries defendants in certain circumstanes to do what they have contracted to do
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tort
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a civil wrong other than breach of contract
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intentional tort
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noncontractual legal wrong caused by one who desires to cause the wrong or where the wrong is substantially likely to occur from the behavior (plaintiff has to prove it was intentional)
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negligence
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a person's failure to exercise reasonable care that foreseeably causes another injury
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strict liability
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requires plaintiff to prove that the defendant has injured something proper to the plaintiff
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punitive damages/exemplary damages
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money damages in excess of a compensatory award, usually granted only in intentional tort cases where defendant's conduct involved some element deserving punishment
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corporation
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business chartered by the state to do business as a legal person in a certain form of organization
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corporate governance
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defines the legal relationship between corporate agents (managers, board of directors, etc.) and shareholders
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petit jury
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the trial jury that returns a verdict in both civil and criminal cases
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trial court
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level of the court system that initially resolves the disputes of litigation (usually with the jury as a fact-finding body)
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appellate court
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decides whether a trial judge has made a mistake of law
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subject matter jurisdiction
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the authority of a court to hear cases involving specific issues of law
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small-claims court
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handles litigation between business and its customers (has limited jurisdiction and is below trial courts in the court system)
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appeal
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right of litigation parties to a review of their case by a higher court
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courts of appeal
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a court that reviews decisions by lower courts (in a state with 2 appellate courts, the lower of the 2)
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supreme court
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the highest appellate court
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writ of certiorari
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procedure for requesting a 2nd review
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federal question cases
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litigation involving the application or interpretation of the federal Constitution, federal statutes, federal treaties, or federal administration agencies; federal court system has subject matter jurisdiction over these issues
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diversity of citizenship
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all plaintiffs must be citizens of different states from all defendents; federal courts have subject matter jurisdiction over these cases if over $75,000
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Federal Rules of Civil Procedure
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provide the details concerning procedures to be followed in federal court litigation
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judicial review
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the power to review laws passed by the legislative body and to declare them to be inconstitutional and void; can also review actions taken by the executive branch and declare them unconstitutional
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judicial restraint
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believes that the political process, not courts, should correct society's ills; decides issues on a narrow basis, if possible; follows precedent whenever possible; doesn't engage in "judge-made law" but interprets the letter of the law
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judicial activism
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believes that the political process can't adequately handle society's difficult issues; courts can correct society's ills through the decision making process; following precedent is not crucial; "judge-made law" is often necessary to carry out the legislative intent of the law
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plaintiff
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the party who files a civil action
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defendant
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the party sued (or the person against whom a criminal charge is filed by the prosecuting state or federal government)
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counterclaim
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any claim filed by the defendant in a lawsuit against the plaintiff in the same suit
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counterplaintiff & counterdefendant
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parties of a counterclaim
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third-party defendants
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a party who is not a party to the original litigation (not the plaintiff or defendant); usually if there is someone who may have liability to a defendant if defendant has liability to plaintiff
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standing to sue
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reqiurement a plaintiff must satisfy by demonstrating a personal interest in the outcome of litigation or an administrative hearing
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personal jurisdiction
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power over the parties to the case
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summons
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notice to appear in court; gives court jurisdiction over the defendant
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long-arm statutes
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provides for the service of process beyond a state's boundaries
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service of process
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publication of notice and mailing summons to last known address of defendant (instead of summons)
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extradition
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process of requesting and transporting a prisoner from one state to another
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class-action suit
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suit in which one or more plaintiff file suit on their own behlaf and on behalf of all other persons who may have a similar claim
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pleadings
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the legal documents that are filed with a court to begin the litigation process
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complaint
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pleading filed by the plaintiff with the court clerk; contains allegations and statements/request of relief sought
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answer
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the responsive pleading filed by a defendant
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default
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failure of a defendant to answer a complaint within the time period allowed by the court; upon defendant's default, a judgement is entered in the plaintiff's favor
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discovery
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procedures by which one pary to a lawsuit may obtain information relevant to the case from the other party or from third persons
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interrogatories
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type of discovery procedure where written questions submitted by one party to another in a lawsuit
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request for production of documents
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method of discovery whereby one party asks the other to provide documents for the requesting party's review
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deposition
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discovery process outside court supervision that involves the sworn questioning of a potential witness; spoken words recorded by a court reporter
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request for an admission
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method of discovery used to narrow the issues to be litigated by having a party request that the other party admit the facts that aren't in dispute
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motions
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process by which the parties make written or oral requests that the judge issue an order or ruling
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statute of limitations
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statute that sets a date after which a lawsuit may not be brought
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judgement on the pleadings
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party is asking the judge to decide the case based soley on the complaint and the answer
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summary judgement
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judicial determination that no genuine factual dispute exists and that one party to the lawsuit is entitled to judgement as a matter of law
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affadavit
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sworn written statement made before an officer authorized by law to administer oaths
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voir dire
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literally "to speak the truth"; preliminary examination of prospective jurors for the purpose of ascertaining bias or interest in the lawsuit
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peremptory challenges
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power granted each party to reject a limited number of potential jurors during voir dire without a reason
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directed verdict
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motion that defendant requests after plaintiff has made case; granted if the evidence establishes as a matter of law that the party making the motion is entitled to a verdict
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jury instructions
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judge acquaints jury with the law applicable to the case
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burden of proof
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1. responsibility that a person has to come foward with evidence on a particular issue (usually the pary alleging certain facts)
2. responsibility a person has to be persuasive as to a specific fact <burden of persuasion> |
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beyond a reasonable doubt
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burden of proof in a criminal case; prosecution has burden of proving the defendant is guilty and jury must have no reasonable doubt about defendant's guilt
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preponderance of evidence
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requires that a party convince the jury by a preponderance of evidence that the facts are as he contends; achieved when there is greater weight of evidence in support than there is against
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clear and convincing proof
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requires party with burden to establish clearly the existence of the alleged facts (more than preponderance of evidence, less that beyond a reasonable doubt)
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verdict
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jury's decision; announced in courtroom after jury deliberations
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judgement
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official ajudication of a court of law (entered after verdict if judge agrees with jury)
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judgement notwithstanding the verdict
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in state court, decision of a court that sets aside the verdict and reaches the opposite result (called judgement as a matter of law in federal court
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appellant
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party appealing
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appellee
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successful party in trial court
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petitioner
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party initiating the petition for certiorari to the supreme court
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respondant
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party answering a petition for a writ of certiorari in the Supreme Court (party not filing petition)
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brief
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written document filed with reviewing court that contains a short description of case, factual summary, legal points and authorities, and arguments for reversing/affirming the lower court decision
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oral argument
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attorneys explain orally, in person, to appellate court their position in the case and answer the court's questions about the case
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execution
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to carry out some action to completion; with respect to enforcing court judgement, seizure of debtor's property, a sale of the property, and payment of proceeds to creditor
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garnishment
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portion of debtor's wages paid to court, which in turn pays creditor
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conflict
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when two or more points of view exist
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dispute
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when one party makes a claim that another party denies
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negotiation
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process used to persuade or coerce someone to do what you want them to do
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positional bargaining
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parties exchange offers with concessions being made so that parties find a middle ground; sellers refer to the last offer made as bottom line and buyers refer to last offer made as top dollar
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principled, interest-based negotiation
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method of negotiation that focuses on the parties' interests instead of positions
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focus groups
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group acting as a mock jury; attorneys present cases to group to get members' feedback on the merits of the various arguments presented
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arbitration
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submission of a dispute to an extradjudicial authority for decision, binding
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arbitrator
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individual/panel members authorized by disputing parties to resolve a dispute through arbitration
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submission
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act of referring a matter to arbitration
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voluntary arbitration
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when disputing parties agree to use arbitration
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mandatory arbitration
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when a statute or court requires parties to arbitrate
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award
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decision announced by arbitrator
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predispute arbitration clause
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applicable to ADR system agreed to by contracting parties prior to a dispute arising; usually part of original contract
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postdispute arbitration clause
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can be applicable to arbitration, mediation, or other ADR methods; such a clause is signed by parties that are already in dispute
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de novo judicial review
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court tries the issue anew as if no arbitration occured
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mediation
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process by which a mediator attempts to assist disputing parties in resolving their differences
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mediator
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third party called to assist disputing parties
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caucus
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private meeting between a mediator and one of the parties involved in a mediation
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Med-Arb
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parties resolve all matter they can and agree to arbitrate the unresolved matters
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seperation of powers
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doctrine that golds that the legislative, executive, and judicial branches of government function independently of one another and each branch serves as a check on the others
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federalism
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vertical aspect of seperation of pwers; the coexistence of federal government and various state governments, with each having responsibilities and authorities that are distinct but overlap
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supemacy clause
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Article VI; federal constitutions, laws, and treaties shall be the "supreme law of the land" and shall take precedence over conflicting state laws
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preemption
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condition when a federal statute or administrative rule governs an issue to the extent that a state/local government is prohibited from regulating that area of law
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contract clause
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Article I, Section 10; prohibits states from enacting laws that interfere with existing contracts
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establishment clause
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1st amendment; Congress shall make no law "respecting an establishment of religion"
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free exercise clause
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1st amendment; allows all citizens the freedom to follow or believe any religious teaching
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prior restraint
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principle applicable to under freedom of speech/press clauses of 1st amendment, court decisions encourage government to allow the publication or expression of thoughts rather than to restrain such thoughts in advance of their publication/expression
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defamation
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the publication of anything injurious to the good name or reputation of another
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libel
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tort theory used to recover damages as a result of printed defamation of character
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malice
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the state of mind that accompanies the intentional doing of a wrongful act without justification or excuse
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symbolic speech
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nonverbal expression, covered by 1st amendment free speech clause
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overbreadth doctrine
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prinicple used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity
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commercial speech
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speech that has a business oriented purpose
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due process clause
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5th and 14th amendments; assures all citizens of fundamental fairness in their relationship with the government
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equal protection clause
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14th amendment; requires all citizens to be treated in a similar manner by the government unless suffucient justification for unequal treatment
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procedural due process
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process/procedure ensuring fundamental fairness that all citizens are entitled to under the U.S. Constitution
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minimum rationality
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legal test used by courts to test the validity of governmental action, ie legislation, under the equal protection clause; to pass there has to be a rational connection to a permissible state end
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strict scrutiny
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legal test used by courts to test the validity of governmental action, ie legislation, under the equal protection clause; government has to demonstrate that there is a compelling state interest justifying the action
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quasi-strict scrutiny
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legal test used by courts to test the validity of governmental action, ie legislation, under the equal protection clause; government has to deomonstrate that there is an important government objective
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commerce clause
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Article I, Section 8; grants the federal government the power to regulate business transactions (commerce with foreign countries, between states, and with Indian nations)
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police powers
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authority state/local governments have to protect the public's health, safety, morals, and general welfare
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dormant commerce clause
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limitations on states' ability to regulate commerce imposed by the Constitution
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irreconcilable conflicts
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when state/local law requires something different than a federal law and both can't be satisfied
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prohibiting discrimination
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standard of review under the commerce clause that can invalidate state/local laws; when state/local laws discriminate against or negatively impact interstate commerce, the laws are invalid and void
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apportionment
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concept used by states to divide a company's taxable income so that no one state burdens a company with an unfair tax bill
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nexus
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a logical connection
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administrative agencies
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the boards, bureaus, commissions, and organizations that make up the governmental bureaucracy
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quasi-legislative
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authority of an agency to issue rules/regulations that have the impact of law
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quasi-judicial
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authority of an agency to make decisions like a court
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exhaustion of remedies
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concept used in administrative law that requires any party to and administrative proceeding to give the administrative agency every opportunity to resolve the dispute before appealing to the court system; not absolute
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primary jurisdiction
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doctrine used by reviewing courts to determine whether a case is properly before the courts or whether it should be heard by an administrative agency first since such an agency might have expertise superior to the courts'
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tort
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civil wrong other than a breach of contract
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intent
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the desire to bring about certain results and/or knowing the "substantially likely" results of an action
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assault
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the placing of another in immediate apprehension of his/her physical safety
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battery
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illegal touching of another
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intentional infliction of mental distress
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battery to the emotions that arises from outrageous, intentional conduct (usually the plaintiff has to prove physical symptoms)
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invasion of privacy
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misappropriation of name or likeness, intrusion upon physical solitude, or public disclosure of objectionable, private information
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false imprisonment
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intentional unjustified confinement of a nonconsenting person
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malicious prosecution
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causing someone to be arrested criminally without proper grounds
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trespass
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to enter another's land without consent or to remain there after being asked to leave
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conversion
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the wrongful execise of domain (power) and control over the personal (nonland) resources that belong to another
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defamation
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the publication of untrue statements about another that hold up that individual's character or reputation to contempt or ridicule
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slander
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oral defamation
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libel
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written defamation or defamation published
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fraud
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an intentional misrepresentation of a material fact that is justifiably relied upon by someone to his/her injury
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injurious falsehood (or trade disparagement)
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the publication of untrue statements that disparage the business owner's product or its quality
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intentional interference with contractual relations
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example: when one company raids another for employees, trying to break contracts
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negligence
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unreasonable behavior that causes injury
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duty
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a legal obligation imposed by the law
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cause in fact
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the actual cause of an event; the instrument that is the responsible force for the occurance of a certain event. required element of a tort
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proximate cause
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in tort law and legal requirement that an act foreseeably causes an injury
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contributory negligence
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a failure to use reasonable care by the plaintiff in a negligence suit
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comparative responsibility
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a doctrine that compares the plaintiff's contributory fault with the defendent's fault and allows the jury to reduce the plaintiff's verdict by the percentage of the plaintiff's fault (aka comparative negligence
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assumption of risk
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negligence doctrine that bars the recovery of damages by an injured partyon the ground that such a party acted with actual or constructive knowledge of the hazard causing the injury
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strict liability
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the legal responsibility for injury-causing behavior that is neither intentional nor negligent; impose legal liability regardless of intent or fault of defendent
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strict products liability
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type of strict tort liability for the commercial sale of defective products
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production defects
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when products are not manufactured to a manufacturer's own standards
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design defects
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when a product is manufactured according to the manufacturer's standards but the product injures a user due to its unsafe design
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state-of-the-art
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the prevailing industry standards at the time of product manufacture
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statute of repose
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statute that applies to product liability cases; prohibits initiation of litigation involving products more than a certain number of years (eg 25) following their manufacture
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dram shop acts
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statutes adopted in many states the impose strict liability upon tavern owners for injuries to 3rd parties caused by their intoxicated patrons
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compensatory damages
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damamges to compensate 3 major types of loss: past/future medical expenses, past/future economic loss (including property damage and loss of earning power), and past/future pain and suffering
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punitive damages
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damages used to punish defendants for committinf intentional torts and for negligent behavior considered "gross" or "wanton and willful" (key is motive)
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contingency fee
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permits a plaintiff to sue without first having to pay an aottorney; encourages litigation
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workers' compensation
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plan for the compensation for occupational diseases, accidental injuries, and deaths of employees that arise out of employment. compensation includes medical expenses and burial costs and lost earnings based on the size of the family and the wage rate of the employee
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exclusive remedy rule
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an employee's sole rmedy against an employer for workplace injury or illness shall be workers' compensation
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property
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established relationship of legal exclusion between an owner and other people regarding limited resources
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intellectual property
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the application of property in the areas of trade secrets, patents, trademarks, and copyrights
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trade secrets
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any form of knowledge or information that
1. the owner (usually a business owner) has taken reasonable measures to keep secret 2. has economic value from not being known to the public |
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injunction
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an order by a judge either to do something or to refrain from doing something
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patent
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a specific legal monopoly in the intangible resource of copying and marketing a new invention
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trademark
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a statutorily created property in a mark, word, picture, or design that attaches to goods and indicates their source
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trade dress
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a colored design or shape associated with a product or service
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infringement
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the tort establishing violation of intellectual property rights
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generic
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when intellectual property loses its distinctiveness (if a product becomes generic it is no longer porotected)
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trademark dilution
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the impact of something that reduces the distinctiveness of a trademark
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copyright
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a statutorily created property in creative expression that protects authors
3 criteria: 1. original work, not copied 2. work fixed in a tangible medium 3. work shows creativity |
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fair use
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statutorily permitted use of another's copyright for criticism, comment, news reporting, teaching, scholarship or research
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white-collar crime
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any illegal offense that occurs in a business or professional setting, usually for personal finanacial gain
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felony
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criminal offense of a serious nature, generally punishable by death or imprisonment in a penitentiary
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misdemeanor
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criminal offense of a less serious nature than a felony, generally punishable by fine or jail sentence other than in a penitentiary
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indictment
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a document issued by a grand jury formally charging a person with a felony
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information
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a written accusation by the prosecutor presented in a court charging an accused perosn with a crime
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intent
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legal doctrine indicating that parties meant to do what they did
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willfully
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with intent to defraud or deceive
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knowingly
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intentionally
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nolo contendre
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latin for "no contest," plea entered by a defendant in a criminal case that neither admits nor denies the crime allegedly committed but, if accepted by the court, permits the judge to treat the defendant as guilty
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probable cause
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the reasonable basis on which law enforcement officials convince a judge that criminal activity has occured; this is the basis that must be satisfied before a judge will issue a criminal search warrant
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presumption of innocence
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to be presumed innocent until found guilty by a petit jury
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unreasonable searches and seizures
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violation of the 4th Amendment that occurs when a valid search warrant is not obtained or when the scope of a valid search warrant is exceeded
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search warrant
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court order required by the 4th Amendment to be obtained from government officials prior to private property being searched or seized
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expectation of privacy
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the expectation that one will not be observed by the state
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double jeopardy
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a constitutional doctrine that prohibits an individual from being prosecuted twice by the same governmental body based on the same factual situation
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fraud
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false representation of fact made with the intent to deceive another that is justifiably relied upon to the injury of that person
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scheme to defraud
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a plan or program designed to take from a person the tangible right honest services
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mail fraud
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use of USPS or any interstate carrier to conduct fraudulent activities
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wire fraud
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use of radio, TV, phone, internet, or other wired forms of communication to conduct fraudulent activities
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intent to defraud
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to act knowingly and with the specific intent to deceive someone (usually for financial loss for the other person or financial gain for self)
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good faith
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honesty in dealing; innocence; without fraud or deceit
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bankruptcy crimes
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an action involving the falsification of documents filed in a bankruptcy case
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concealment
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an intentional misrepresentation of a material fact occuring through the silence of a party
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conspiracy
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an agreement or a "kind of partnership" for criminal purposes in which each member becomes the agent or partner of every other member
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overt act
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any transaction or event knowingly committed by a conspirator in an effort to accomplish some objective of the conspiracy
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obstruction of justice
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when an individual commits an act with the intent to obstruct the legislature or a judicial process (broadly encompasses all steps and stages from the inception of an investigation to the conclusion of trial)
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exculpatory no
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doctrine that merely denying guilt is not a criminal lie in response to a question from an agency of the federal government; no longer valid
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larceny
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the unlawful taking of personal property with the intent to deprive the rightful owner of it permanently
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robbery
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larceny by violence or threat (like with a gun)
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burglary
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breaking into a building with the intent to commit a felony (most common felony in burglary cases is larceny)
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RICO
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Racketeer Influenced and Corrupt Organization Act; law imposing criminal and civil liability upon those business people who engage in certain prohibited activities and who engage in interstate commerce
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pattern of racketeering
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under RICO, 2 or more similar acts of organized crime in a 10-year period
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racketeering
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a crime under RICO involving a pattern of actions that are indictable under state or federal laws
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endangerment of workers
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criminal act that involves placing employees at risk with respect to their health and safety in the work environment
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aiding and abetting
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criminal action that arises from association with and from assistance rendered to a person guilty of another criminal act
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accessory
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term used at the state level similar to aiding and abetting; accessory to a crime generally is either before the criminal act or after it
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sentencing guidelines
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adopted by the U.S. Sentencing Commission as a means of standardizing the sentences given to similar criminals committing similar crimes
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closely held
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organization owned by only a few persons (like family-owned or operated)
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publicly held
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business owned by hundreds or thousands of persons (like those whose stick is traded on a public exchange)
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dissolution
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any change in the ownership of an organization that changes the legal existence of the organization
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sole proprietorship
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simplest form of business, created and controlled by one owner
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partnership
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business organization involving 2 or more persons agreeing to conduct a commercial venture while sharing its profits and losses
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articles of partnership
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formally drafted partnership agreement
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assumed-name statute
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state law that requires partners to make a public filing of thier identities if their partnership operates under a name that doesn't reveal the partners' identities
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buy and sell agreement
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a contract, usually among partners, wherein one party agrees to buy the ownership interest held by another party or the first party agrees to sell such an interest to the other party; helps provide for a transition of owners without harming the business of the organization
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corporation
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artificial, but legal, person created by state law; as a business organization, the corporation's seperation of owners and managers gives it a high degree of flexibility
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domestic corporation
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business organization created by the issuance of a state charter that operates in the state that issued the charter
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joint and severally liable
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legal principle that makes 2 or more people, usually partners, liable for an entire debt as individuals or in any propoertional combination
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foreign corporation
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business organization, created by the issuance of a state charter, that operates in states other than the one issuing the charter
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charter
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the legal document issued by a state when creating a new corporation
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incorporators
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those individuals who are responsible for bringing a corporation into being
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articles of incorporation
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legal document that forms the application for a state charter of incorporation
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shareholders
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owners of corporations; typically vote on major decisions impacting their corporations, most commonly the election of a board of directors
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directors
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those individuals who are elected by the shareholders to decide the goals and objectives for the corporate organization; appoint officers
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officers
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those individuals appointed by directors of a corporation to conduct the daily operations of the corporate organization
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proxy
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legal document whereby a shareholder appoints an agent to vote the stock at a corporation's shareholers' meeting
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derivative suit
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lawsuit filed by a shareholder of a corporation on behalf of the corporation against that organization's management; brought to benefit the corporation directly and its shareholders indirectly
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limited personal liability
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owners are liable for the debts of the corporation only to the extent of those shareholders' investment in the cost of the stock
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piercing the corporate veil
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legal doctrine used by courts to disregard the existence of a corporation, thereby holding the shareholders personally liable for the organization's debts
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alter-ego theory
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one method used by courts to pierce the corporate veil when a shareholder fails to treat the corporate organization as a seperate legal entity
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double tax
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a disadvantage of a corporate form of organization in that the corporation must pay a tax on the money earned and the shareholders pay a second tax in the dividends distributed
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limited partners
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owners of a limited partnership who forgo control of the organization's operation in return for their liability being limited to the amount of their investment
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general partner
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owner of a limited partnership that enjoys the control of the partnership's organization; personally liable for the debts of the partnership
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S corporations
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business organization thats formed as a corporation but, by shareholder's election, is treated as a partnership for tax purposes; can't have more than 75 shareholders
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limited liability corporation
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type of business organization that has characterisitics of both a partnership and a corporation; owners called members and their personal liability is limited to their capital contributions; not a taxable entity
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limited liability partnership
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a hybrid business partnership
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articles of organization
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document used to create a LLC. purpose corresponds to the purpose of the articles or partnership and articles of incorporation
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organizers
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the parties responsible for bringing a LLC into existence; parties correspond to the function of incorporators with respect to the corporation
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members
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owners of LLCs
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managers
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a person designated and charged with day-to-day operations of a LLC
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say-on-pay
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a policy of companies that allow the compensation of executives to be reviewed by shareholders
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trust
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fiduciary relationship concerning property in one person, known as the trustee, holds legal title to the property for the benefit of another, known as the beneficiary
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trustee
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the person in a trust who holds the legal title to the property and manages and preserves that property
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beneficiary
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the person in a trust who benefits from the land held by the trustee
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Sherman Act
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1890, congressional enactment designed to regulate anticompetitive behavior in interstate commerce
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Clayton Act
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legislation passed in 1914 that exempts labor unions from the Sherman Act; expanded the national antitrust policy to cover price discrimination, exclusive dealings, tying contracts, mergers, and interlocking directors
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Federal Trade Commission Act
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passed in 1914, created the Federal Trade Commission (FTC) and authorized it to protect society against unfair methods of competition; amended in 1938 (by the Wheeler-Lea amendment) to provide the FTC with authority to regulate unfair or deceptive trade practices
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restraint of trade
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monopolies, combinations, and contracts that impede free competition; section 1 of the Sherman Act prohibits restraints of trade
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price fixing
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agreement among competitors to charge the same price for their products
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monopoly
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exclusive control of a market by a business entity
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predatory conduct
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seeking to advance market share by injuring actual or potential competitors by means other than improved performance
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rule of reason
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under the Sherman Act, contracts or conspiracies are illegal only if they constitute an unreasonable restraint of trade or attempt to monopolize. an activity is unreasonable if it adversely affects competition. requires than an anticompetitive effect be shown
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per se illegality
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under the Sherman Act, agreements and practices are illegal only if they are unreasonable. the practices that are conclusively presumed to be unreasonable are per se illegal. if an activity is per se illegal, only proof of the activity is required and it is not necessary to prove an anticompetitive effect
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triple damages
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(or treble damages) an award of damages allowable under some statutes equal to 3x the amount found by the jury to be single recovery
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nolo contendre
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defendant's plea in a criminal case, neither admits nor denies crime allegedly committed but, if accepted by the court, permits the judge to treat the defendant as guilty
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state action exemption
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Sherman Act exemption of the sovereign action of a state that replaces competition with regulation if the state actively supervises the anti competitive conduct
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Parker v. Brown doctrine
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name given to state action exemption of the Sherman Act
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Noerr-Pennington doctrine
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exempts from the antitrust laws concerted efforts to lobby government officials regardless of the anticompetitive purposes; based on 1st Amendment freedom of speech
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horizontal price fixing
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agreement between competitors to fix prices
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vertical price fixing (resale price maintenance)
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attempts by manufacturers to control the ultimate retail price for their products
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Colgate Doctrine
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manufacturers can legally control retail prices of its products by simply announcing its price and refusing to sell to those who refuse the price, no agreements involved
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horizontal territorial agreement
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agreement between competitors with respect to geographical areas in which each will conduct its business to the exculsion of the others. illegal per se under the Sherman Act
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vertical territorial agreement
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agreement between a supplier and its customers with respect to geographical area in which each customer will be allowed to sell that supplier's product. this type of agreement is analyzed under the rule of reason to determine whether it violates the Sherman Act. limitations on intrabrand competition may be permitted if there is a corresponding increase in intrabrand competition
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concerted activities
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those activities involving an agreement, contract, or conspiracy to restrain trade that may be illegal under the Sherman Act
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Robinson-Patman amendment
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amendment to section 2 of the Clayton Act covering price discrimination; as originally adopted, outlawed price discrimination in interstate commerce that might substantially lessen competition or tends to create a monopoly (tried to prtect smaller buyers)
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predatory pricing
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a policy of lowering the price charged to customers for the purpose of driving competitors out of business. typically, this policy involves prices that are below the seller's costs of the products sold with resulting losses to the seller
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cost justification defense
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defense to Robinson-Patman amendment; the defendant seeks to justify charging different customers different prices due to that defendant's costs varying because of the differing quantities purchased by the customers
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good-faith meeting-of-competitor defense
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defense to Robinson-Patman amendment; a seller in good faith may meet the equally low price of a competitor
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tying contract
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contract in which a product is sold or leased only on the condition that the buyer or lessee purchase a different product from the seller or lessor
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full-line forcing
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seller compels buyer or lessee to take a complete product line from the seller
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reciprocal dealing
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contract in which 2 parties agree to mutual actions so that each party can act as both a buyer and a seller; violates Clayton Act if it results in substantial lessening of competition
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exclusive dealing
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buyer agrees to purchase a certain product exclusively from the seller of the seller agrees to sell all of his/her production to the buyer
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requirements contract
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contract under which the buyer agrees to buy a certain item only from the seller
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merger
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extinguishment of a corporate entity by the transfer of its assets and liability to another corporation that continues in existance
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horizontal merger
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merger of corporations that were competitors prior to the merger
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market extension merger
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an acquisition in which the acquiring company extends its markets
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product extension
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a market extension merger that creates a market extension in new products
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geographic extension
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a market extension merger that creates a market extension in new areas
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vertical merger
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brings together one company that is the customer of the other in one of the lines of commerce in which the other is a supplier
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conglomerate merger
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merger in which the businesses involved neither compete nor are related as customer and supplier in any given line of commerce
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Celler-Kefaurer amendment
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passed in 1950 to amend the Clayton Act by broadening the scope of section 7 on mergers and acquisitions
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bona fide occupational qualifications (BFOQs)
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a qualification that permits discriminatory practices in employment if a person's religion, sex, or national origin is reasonably related to the normal operation of a particular business
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disparate treatement
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a term of employment litigation that refers to the illegal discriminatory treatment of an individual in some protected class (like race or sex)
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disparate impact
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a term of employment litigation that refers to the disproportionate impact of a policy neutral on its face on some protected class
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business necessity defense
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an affirmative defense under Title VII of the CRA. it is raised to disparate impact claims and asserts that a facially neutral but discriminatory policy is job related
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retaliation
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striking back against someone for what they did to you. used in labor law, employment discrimination cases, whistle-blowing as part of a doctrine prohibiting an employer from firing or taking other adverse actions against employees for reporting the employer to federal agencies for violating various laws
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hostile work environment
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under Title VII an environment where co-workers make iffensive sexual comments or propositions, engage in suggestive touching, show nude pictures, or draw sexual graffiti
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comparable worth
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jobs that, although different, produce substantially equal value for the employer
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affirmative action
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positive steps taken in order to alleviate conditions resulting from past discrimination or from violations of a law
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reverse discrimination
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the advancement and recruitment of minority workers ahead of similarly qualified nonminority workers
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seniority system
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a plan giving priority to employees based on the length of time an employee has worked for an employer. an employer may apply different standards pursuant to a good-faith seniority system if the differences are not the result of an intention to discriminate
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Section 1981
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the provision of the CRA of 1866 that forbids racial discrimination in the making of contracts
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disability
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any physical or mental impairment that substantially limits a major life activity
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qualified disabled
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those with a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job position
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reasonable accommodation
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the actions that an employer must take under Title VII of the CRA and under the ADA to adapt employment conditions to an employee's religious belief or disability
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