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LEGL 2700: Exam 1
Dependency Theory
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Asserts some nations grow and flourish at the expense of keeping others poor.
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Why are national economies weak?
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Dependency theory
Natural resources Education and Technology - result Climate Private Market Law and the Legal system
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Law
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Made up of rules that are laid down by the state and backed up by enforcement.
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Code of Hammurabi
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The first known written set of laws.
Named after the Babylonian king. 18th century BS
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Rule of Law
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Generally and equally acceptable.
Apply to all members of society and apply to various groups in the same way. "Cornerstone of Free Trade"
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What are the 3 concepts necessary for a successful private market?
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Law
Rule of Law Property
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Capitalism
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Capitalism is an economic system in which the means of production and distribution are privately owned and operated for profit; decisions regarding supply, demand, price, distribution, and investments are not made by the government.
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Contract Law
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Enables an owner to exchange resources.
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Common Law
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Emphasizes the role of judges in determining the meaning of laws and how they apply.
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Civil Law
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Relies more on legislation than judicial decisions to determine what the law is.
Don't follow prior precedents (judicial decisions).
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Public Law
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Includes matters that involve the regulation of society.
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What are the types of public law?
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Constitutional
Administrative Criminal
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Constitutional Law
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Involves the interpretation and application of either the federal or state constitutions.
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Administrative Law
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Covers the legal principles that apply to government agencies, bureaus, boards, or commissions.
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Criminal Law
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Specifies various offenses against the proper order of the state.
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Private Law
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Covers the legal problems and issues that concern your private resource relationships with other people.
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What are the types of Private Law?
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Property Law
Contract Law Tort Law
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Property Law
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The recognition of exclusive right in both tangible and intangible resources.
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Contract Law
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Rules of how owners transfer resources by exchanging them. Often involve enforceable promises to exchange resources in the future.
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Tort Law
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Establishes rules for compensation when an owner's legal boundaries are wrongfully crossed by another.
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Statue or Act
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Legislation adopted by congress or a state legislature.
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Ordinances
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Laws passed by local governments
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Codes
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Compilations of legislation at all levels of government.
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Uniform Commercial Code
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Deals with all the phases that may ordinarily arise in the handling of commercial transactions from start to finish.
Only applies to tangible things (goods).
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Statutory Construction
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The judiciary's determination of the intent of the legislature when the statute was enacted.
How courts interpret and apply the meaning of legislation.
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Case Law
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The judicial decisions that apply to your legal problem.
Certainty, Predictability, and Stability
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Stare Decisis
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"Let the prior decision stand."
Specifies the boundaries of our property-based legal system. protects peoples personal belongings from the interference of others.
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Disadvantages for Case Law
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Volume of Cases = Expensive
Conflicting Precedents = Does not create certainty. Dicta = Everything besides what was necessary to the decision reached. Judges don't follow. Rejection of Precedent Conflicts of Law = Involving different states and contracts.
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Constitutional Relativity
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The idea that courts should understand the meaning of the constitution relative to the times in which they interpret.
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Hierarchy of Law
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U.S. Constitution and Amendments
Statutes (acts or legislation of Congress) Federal Administration Regulation State Constitutions State StatutesState Administration Regulation Local Ordinances Case Law
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Judges
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Apply the law to the facts.
Also called magistrates.
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Jurors
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Find or determine the facts from conflicting evidence, and the facts as found by the jury are given great deference.
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Lawyers
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Present evidence to the jury and argue the law to the court.
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Justices
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Members of the court/ reviewing court persons.
Decide appeals. and often give reasons for their decisions. Concerned with issues of law. Must think about the effect of their decision on the law.
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Who decides ?'s of fact?
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If there is a jury then the jury, if not then it's the judge's responsibility.
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Who decides ?'s of law?
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The judge
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Petit Jury
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Trial jury that returns a verdict in criminal and civil cases.
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6th and 7th Amendments
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Guarantee the right of trial by jury in both criminal and civil cases.
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Jury
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6-12 people serve.
Most states require a unanimous decision, if not it is re done.
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Attorney-client Privilege
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Confidential communications to a lawyer.
But this is broken if you tell ANYONE else b/c they will have to testify against you if asked to do so.
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3 Levels of Court
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Trial Court
Courts of Appeals Supreme Court
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Jurisdiction
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The power of a court, at state or federal level, to hear a case.
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Subject-matter Jurisdiction
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The authority of a court to hear cases of a particular type or cases relating to a specific subject matter.
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What are the judicial powers of the federal court?
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Questions of federal law
The U.S. as a party Controversies among the states Certain suits between citizens of different states (diversity of citizenship)
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Federal Question Cases
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Based on issues arising out of the constitution or out of federal statutes.
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Federal District Courts
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Trial courts of the federal judicial system
Subject matter jurisdiction
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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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Writ of Certiorari
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A request by the loosing party in the court of appeals for permission to file an appeal with the U.S. supreme court.
Granted if 4 of the 9 justices vote to take the case.
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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 unconstitutional and void.
Review actions taken by the executive branch and can declare them unconstitutional.
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Judicial Restraint
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The belief that judicial power should only be used in unusual cases.
Republican
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Judicial Activism
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The belief that judicial power should be used whenever the needs of society justify it's use.
Democratic
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How are federal judges appointed? (supreme court)
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Appointed by the president then the senate judiciary committee must approve then the majority of the senate must vote and confirm his nominee.
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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 being sued.
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Counterclaim and involved parties
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Defendant; now the Conterplaintiff
Plaintiff; now the Conterdefendant When a defendant wants to sue the plaintiff back.
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Third-party Defendants
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Usually brought in when someone who may have liability to a defendant if the defendant had liability to the plaintiff.
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Standing to Sue
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The plaintiff must be entitled to have the court decide the dispute.
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2 requirements to be eligible for standing to sue
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Litigation must involve an actual case or controversy.
Plaintiff must allege a personal stake in the resolution of the controversy.
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Extradition
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Process of requesting and transporting the prisoner from one state to another in order to get them back to where the crime was committed.
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Pleadings
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Legal documents that are filed with a court to begin the litigation process.
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Complaint
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Filled by the plaintiff and begins the litigation process.
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Answer
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The document that must be submitted by the defendant after receiving the complaint.
Must admit or deny every allegation.
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Counterclaim
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Causes of action the defendant has against the plaintiff.
Included in the answer.
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Default
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When the defendant doesn't answer the complain in the time alloted the court may grant the plaintiff the relief sought by the complaint.
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Discovery
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Ensure that the results of lawsuits are not based on the merits of the controversy and not on the ability, skill, or cunning of counsel.
Designed to ensure that each side is fully aware of all the facts involved in the case and the intentions of the parties.
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Interrogatories
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Least expensive method of discovery.
A series of written questions to the opposing parties.
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Request for Production of Documents
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Specific documents that are important to the lawsuit's outcome.
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Depositions
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Most expensive method of discovery.
Lawyer orally asks questions of the possible witness and an oral response is given and recorded and a written transcript is prepared.
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Voir Dire
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Process of selecting jurors for a case. "to speak the truth"
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Preemptory Challenges
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No cause or reason need to be given to excuse a prospective juror.
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Arbitrator
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Decision maker, who should be disinterested in any financial impact of the decision and neutral regarding the issues presented in the dispute.
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Submission
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The act of referring a matter to arbitration.
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Award
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The decision in the arbitration process.
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Per-diem Fee
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The fee that the arbitrators are paid in a mandatory arbitration case by the parties involved.
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2 Agreements to voluntarily arbitrate
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Predispute arbitration clause
postdispute arbitration agreement
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Predispute arbitration clause
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Commonly appear in business contracts.
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Postdispute arbitration agreements
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Arise when parties already in dispute decide that arbitration is better than litigation.
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ADR systems
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Alternative Dispute Resolution Systems
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De Novo Judicial review
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To be constitutional a dissatisfied party can reject the arbitrators award and try the issues as if no arbitration occurred.
Only with mandatory arbitration.
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Mediation
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Process by which a 3rd person attempts to assist disputing parties in resolving their differences.
Helps the parties maintain a relationship.
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Caucus
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Parties and their attorney's meet with the mediator outside the presence of the other disputant.
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Med-Arb
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Parties resolve all matters of contention that they can and agree to arbitrate the unresolved.
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Focus Groups
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A group of citizens that attorney's present their evidence to and gives them insight to possible jury reaction.
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Article IV
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One nation vs individual states will provide the framework for citizenship and commercial activities.
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Article V
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Provides the process governing the amendment of the constitution.
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Article VI
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Describes how the constitution will be the supreme law of the land.
Also clarifies that federal law takes priority over state and local laws.
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Bill of Rights
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First 10 amendments
1791 Provide clear statements of individuals' freedoms and protections from government actions.
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Which amendments relate to how the government operates or who has the right to vote?
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11,12,15,17,19,20,22,23,24,25,26,27
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18th Amendment
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Made the sale and manufacture of alcohol illegal.
Prohibition amendment
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21st Amendment
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Repealed the 18th amendment.
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13th Amendment
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Abolished slavery
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14th Amendment
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Provides protection to citizens against the actions of the states.
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What clauses does the 14th amendment contain?
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Privileges and Immunities
Due Process Equal protection
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16th Amendment
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Authorizes federal income tax.
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How many states must an amendment be ratified by?
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38
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Separation of Powers
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Known as "federalism"
Recognizes that each level of government has a separate and distinct role to play.
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10th Amendment
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Reserves some powers to the state and the government.
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Supremacy Clause
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Courts may be called upon to decide if a state law is invalid because it conflicts with a federal law.
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Contract Clause
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"No state shall pass any Law impairing the Obligation of contracts."
Does not apply to the federal government. Does not affect contracts already in effect. Article 1, Section 10
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1st Amendment
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Freedom of religion
Freedom of the press Freedom of speech Freedom of assembly The right to petition the government for a redress of grievances.
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What clauses guarantee freedom of religion through the separation of church and state?
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Establishment clause
Free exercise clause
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Free exercise clause
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Most business-related freedom of religion cases involve this.
Employment discrimination claims.
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Libel
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A published false statement that is damaging to a person's reputation, a written defamation.
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2nd Amendment
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Right to possess guns
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Fourteenth Amendment
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Due process of law.
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Due process of law
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No state shall deprive any person of life, liberty, or property without due process of law.
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Due process clause
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Applies only to governmental bodies, not to the actions of individuals or businesses
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Commerce Clause
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Power of the federal government to regulate business activity.
Article 1 Section 8
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4 Areas of Commerce Clause
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Regulation of foreign commerce
Regulation of interstate commerce Limitation on state police power Limitation on state taxation
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Police Powers
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Requiring state legislation and regulation to protect the public's health, safety, morals, and general welfare.
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Dormant Commerce Clause Concept
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State regulations must not be arbitrary, capricious, or unreasonable and must not violate the commerce clause.
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Irreconcilable Conflicts
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It is not possible for a business to comply with both state and federal statues.
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Nexus
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There must be sufficient contact, connection, tie, or link between the business and the taxing state to be able to tax.
Called taxable situs for property.
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Quasi-legislative
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An agency can issue rules that have the impact of laws.
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Quasi-judicial
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Agencies can make decisions like a court.
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Administrative Agencies
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Create and enforce the majority of all laws constituting the legal environment of business.
Regulates almost every business activity.
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2 requirements to establish standing to sue
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Reviewability - Must be subject to judicial review.
Aggrieved Party
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Definition
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