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Legal test 2

Legal environment of business terms

QuestionAnswer
Arbitration Submission of a dispute to an extrajudicial authority for decision.
Arbitrator The individual or panel members authorized by disputing parties to resolve a dispute through the arbitration process.
Award The decision announced by an arbitrator.
Caucus The name used for a private meeting between a mediator and one of the parties involved in a mediation.
Conflict The common occurrence in life when two or more points of view exist.
De novo judicial review A proceeding wherein the judge or hearing officer hears the case as if it had not been heard before.
Dispute The circumstance when a party in conflict claims the right to do or have something and the other party denies, rejects, or ignores the claim.
Focus groups A group acting as a mock jury; attorneys present cases to such a group to get the members’ feedback on the merits of the various arguments presented.
Mandatory arbitration A form of resolving a dispute, as an alternative to litigation, that is required by a statute.
Med Arb An alternative dispute resolution system that involves parties going through mediation and agreeing to resolve as many issues as possible. These parties agree that nay matters not resolved in the mediation process will then be arbitrated.
Mediation An alternative to litigation whereby a third party attempts to assist the disputing parties in reaching a settlement. The third party mediator lacks authority to impose on the parties a binding solution to the dispute.
Mediator An individual who assists disputing parties in their efforts to resolve their differences. Mediators must rely on their persuasive abilities since they have no authority to settle the dispute.
Negotiation The process used to persuade or coerce someone to do or to stop doing something.
Positional bargaining A method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground. The seller refers to the last offer made as its bottom line, and the buyers refers to the last offer made as its top d
Postdispute arbitration clause Can be applicable to arbitration, mediation, or other methods of ADR; such a clause is signed by parties that are already in dispute.
Predispute arbitration clause Applicable to ADR systems agreed to by contracting parties prior to a dispute arising; usually this clause is a part of the original contract between the parties.
Principled, interest based negotiations A method of negotiation that focuses on the parties’ interests as opposed to positions. The language used to describe this bargaining includes options, alternatives, objective criteria, and relationships.
Submission The act or process of referring an issue to arbitration.
Voluntary arbitration A method of resolving a dispute, as an alternative to litigation, that the parties agree to utilize. This agreement may be made before or after a dispute arises.
Administrative agencies An organization, usually a part of the executive branch of government, that is created to serve a specific purpose as authorized by the legislative branch. An agency’s function usually is characterized as quasi legislative or quasi judicial.
Apportionment The concept used by the states to divide a company’s taxable income so that no one state burdens a company with an unfair tax bill.
Commerce clause A provision in Article I, Section 8, of the U.S. Constitution that grants the federal government the power to regulate business transactions.
Commercial speech Speech that has a business oriented purpose. This speech is protected under the First Amendment, but this protection is not as great as afforded to noncommercial speech.
Contract clause The constitutional provision that prohibits states from enacting laws that interfere with existing contracts. The Supreme Court has refused to interpret this clause in an absolute manner.
Defamation The publication of anything injurious to the good name or reputation of another.
Dormant commerce clause concept The impact of the commerce clause as a means of limiting state and local governments’ powers to regulate business activities.
Due process clause A provision found in the Fifth and Fourteenth Amendments of the U.S. Constitution. This clause assures all citizens of fundamental fairness in their relationship with the government.
Equal protection clause A provision in the Fourteenth Amendment of the U.S. Constitution that requires all citizens to be treated in a similar manner by the government unless there is a sufficient justification for the unequal treatment.
Establishment clause A provision in the First Amendment of the U.S. Constitution that prohibits the federal government from establishing any government supported religion or church.
Exhaustion of remedies A concept used in administrative law that requires any party to an administrative proceeding to give the administrative agency every opportunity to resolve the dispute before appealing to the court system.
Federalism The vertical aspect of the separation of powers. The coexistence of a federal government and the various state governments, with each having responsibilities and authorities that are distinct but overlap.
Free exercise clause A provision in the First Amendment in the U.S. Constitution that allows all citizens the freedom to follow or believe any religious teaching.
Irreconcilable conflicts When a state or local law requires something different than a federal law or regulation and bot laws cannot be satisfied. Under Commerce Clause analysis, the state or local law is declared invalid and void.
Malice The state of mind that accompanies the intentional doing of a wrongful act without justification or excuse.
Minimum rationality A legal test used by courts to test the validity of government action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy this test, the government needs to demonstrate that there is a good reason for the governmen
Nexus A logical connection.
Overbreadth doctrine A principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. This doctrine may be utilized to protect constitutional rights, such as freedom of speech, against a wide sweep of governmental action
Police powers The authority a state or local government has to protect the public’s health, safety, morals, and general welfare.
Preemption A condition when a federal statute or administrative rule governs an issue to the extent that a state or local government is prohibited from regulating that area of law.
Primary jurisdiction A doctrine used by reviewing courts to determine whether a case is properly before the courts whether it should be heard by an administrative agency first since such an agency might have expertise superior to the courts’.
Prior restraints A principle applicable under the freedom of the press and speech clauses of the First Amendment of the U.S. Constitution. The courts have announced decisions that encourage governments to allow the publication or expression of thoughts rather than to rest
Procedural due process The process or procedure ensuring fundamental fairness that all citizens are entitled to under the U.S. Constitution.
Prohibiting discrimination A standard of review under the Commerce Clause that can invalidate state and lkocal laws. When state and local laws discriminate against or negatively impact interstate commerce, such laws are invalid and void.
Quasi judicial Administrative actions involving factual determinations and the discretionary application of rules and regulations.
Quasi legislative This term describes the rule making functions of administrative agencies.
Quasi strict scrutiny A legal test used by the courts to test the validity of governmental action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy the test, the government needs to demonstrate that the purpose of the action is substa
Separation of powers The doctrine that holds that the legislative, executive, and judicial branches of the government function independently of one another and that each branch serves as a check on the others.
Strict scrutiny A legal test used by the courts to test the validity of governmental action, such as legislation, under the equal protection clause of the U.S. Constitution. To satisfy this test, the government needs to demonstrate that there is a compelling state intere
Supremacy clause Article VI of the U.S. Constitution, which states that the Constitution, laws, and treaties of the United States shall be the “supreme law of the land” and shall take precendence over conflicting state laws.
Symbolic speech Nonverbal expression.
Undue burden Under the Civil Rights Act of 1964 and the Americans with Disabilities Act an employer need not take action that is excessively costly or creates excessive inefficiency in order to accommodate an employee’s religious beliefs or disability.
Accession Property acquired by adding something to an owned object.
Adverse possession Property ownership acquired through open, notorious, actual, exclusive, continuous, and wrongful possession of land for a statutorily prescribed period of time.
Artisans lien The lien that arises in favor of one who has expended labor upon, or added value to, another person’s personal property. The lien allows the person to possess the property as security until reimbursed for the value of the labor or materials. If the person
Attachment Takes place when a secured party has given value, the debtor owns the collateral, and a security agreement is given. This agreement must be in writing, signed by the debtor, and contain a reasonable description of the collateral.
Bailee In a bailment, the person who takes possession of an object owned by another and must return it or otherwise dispose of it.
Bailment An owner’s placement of an object into the intentional possession of another with the understanding that the other person must return the object at some point or otherwise dispose of it.
Bailor In a bailment, the person who transfers possession of tangible, personal property to another person with the understanding that the other person must return the object at some point or otherwise dispose of it.
Buyer in the ordinary course of business A buyer who buys from someone who ordinarily sells such goods in his or her business.
Collateral The valuable thing put up by someone to secure a loan or credit.
Confusion Property ownership that arises when identical masses of objects, such as grain, are mixed together.
Contract A legally enforceable promise.
Deed A document representing the title or ownership of land.
Deeds of trust A type of document to secure an extension of credit through an interest in the land.
Deficiency In a land based security interest, the amount of the loan which remains unpaid after the land has been sold.
Easement The right of one other than the owner of land to some use of that land.
Eminent domain The government’s constitutional power to take private property for public use upon the payment of just compensation.
Estate The bundle of rights and powers of real property ownership.
Fee simple The maximum bundle of rights, or estate, permitted by law.
Financing statement An established for that a secured party files with a public officer to perfect a security interest under the UCC. It is a simple form that contains basic information such as a description of the collateral, names, and addresses. It is designed to give not
Fixture Personal property that has become real property, generally through physical attachment (annexation).
Foreclosure If a mortgagor fails to perform his or her obligations as agreed, the mortgagee may declare the whole debt due and payable, and she or he may foreclose on the mortgaged property to pay the debt secured by the mortgage. The usual method of foreclosure auth
Gift Transfer of ownership by intent and the delivery of the object gifted.
Joint tenancy A property ownership that is undivided (common) and equal between two or more owners. Permits survivorship.
Land sales contract A type of document to secure an extension of credit through an interest in the land purchased.
Leasehold estate The property granted to tenants (lessees) by a landlord (lessor).
Life estate A property that grants land ownership for the lifetime of a specified person.
Mechanic’s lien A lien on real estate that is created by statute to assist suppliers and laborers in collection their accounts and wages. Its purpose is to subject the owner’s land to lien for material and labor expended in the construction of buildings and other improve
Mortgage (1) A transfer of an interest in property for the purpose of creating a security for a debt. (2) A type of security interest in land, usually securing an extension of credit.
Mortgagees The party that the owner of land places the mortgage with.
Mortgagors The owner of land who places a mortgage on it.
Ownership The property right that makes something legally exclusive to its owner.
Perfection The status ascribed to security interests after certain events have occurred or certain prescribed steps have been taken.
Personal property All property that does not involve land or interests in land.
Private nuisance An unreasonable use of one’s land so as to cause substantial interference with the enjoyment or use of another’s land.
Property A bundle of private, exclusive rights in people to acquire, possess, use, and transfer scarce resources.
Public nuisance An owner’s use of land that causes damage or inconvenience to the general public.
Purchase money security interest (PMSI) A security interest given to the party that loans the debtor the money that enables the debtor to buy the collateral.
Real property Property in land and interests in land.
Right of redemption The right to buy back. A debtor may buy back or redeem his or her mortgaged property when he or she pays the debt.
Rule against perpetuities The rule that prohibits an owner from controlling what he or she owns beyond a life in being at the owner’s death, plus 21 years.
Rule of first possession The rule that says one becomes an owner by reducing to possession previously unowned objects or abandoned objects.
Secured transactions Any credit transaction creating a security interest; an interest in personal property that secures the payment of an obligation.
Security interest An application of property that gives someone an interest in what belongs to another, usually to secure an extension of credit.
Tenancy in common A property ownership that is undivided (common) but not necessarily equal between two or more owners.
Title A synonym for ownership. Sometimes represented as a document.
Zoning ordinance Laws that limit land use based usually on residential, commercial, or industrial designations.
Copyright A statutorily created property in creative expression that protects authors.
Fair use A statutorily permitted use of another’s copyright for criticism, comment, news reporting, teaching, scholarship, or research.
Generic To lose distinctiveness in reference to the source of goods and thus to lose trademark protection.
Infringement The tort establishing violation of intellectual property rights.
Injunction A court order directing a party to do or to refrain from doing some act.
Intellectual property A type of property in information and its application or expression. Patents and copyrights are examples.
Patent A statutorily created property in inventions.
Property A bundle of private, exclusive rights in people to acquire, possess, use, and transfer scarce resources.
Trade dress A legal doctrine giving someone ownership or a distinctive overall appearance or look and feel of a service or product.
Trademark A statutorily created property in a mark, word, picture, or design that attaches to goods and indicates their source.
Trademark dilution The impact of something that reduces the distinctiveness of a trademark.
Trade secret Any formula, pattern, machine, or process of manufacturing used in one’s business that may give the user an opportunity to obtain an advantage over its competitors. Trade secrets are legally protectable.
Created by: studyjunk