119 Cards in this Set
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Primary Sources of law
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1. U.S Constitutions & Constitutions of various states.
2. Statutory Law
3. Court Mandated Law
4. Agency Regulations
5. Treaties
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Constitutional Law
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The federal gov. and states have separate written constitutions that set fourth the general organization, powers, & limits of their respective gov.
Supreme law of the land.
Overpowers the states constitution if challenged.
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Statutory Law
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Laws enacted by legislative bodies at any level of gov.
Make up the body of the law.
When passed, it is included in the federal or state code of laws.
Also includes local ordinances
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Ordinances - Statutes
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laws, rules, orders passes by municipal or county governing units to govern matters not covered by federal or state law.
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uniform laws
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drafted by national conference of commissioners on Uniform state laws
AKA Model laws for states to adopt
If adopted by state legislature it becomes a statutory law. & can rewrite it as they like.
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Administrative Law
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consists of rules, orders, & decisions of administrative agencies
Make up a dominant element in the regulatory environment of business.
They affect businesses operations -- capital, structure, financing-- hiring & firing, relations w/ employees and unions
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Administrative Agency
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federal, state, or local gov. agency est. to perform a specific function.
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Common Law
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Body of all laws together that have developed over a long period of time.
Began at the beginning of the English legal system. Adopted by America
Est. by the Kings Court
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Case Law
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The rules of law announced in cases (courts decisions).
Governs all areas not covered by statutory law or administrative law.
Part of common law tradition.
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Remedies
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legal means to enforce a right or redress a wrong.
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King's court awards
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AKA - Remedies at law
1. land
2. items of value
3. money (most used today)
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Courts at Law
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The courts that awarded these compentations
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damages
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the amount given to a party whose legal interests have been injured.
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Chancellor
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had the power to grant new remedies when the others did not fit.
Lead to Courts of Equity.
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Remedies in Equity
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1.Specific performance
2.Injunction (stopping an action of some sort)
3. rescission (stop a contract obligation)
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Equitable maxims
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Statements of equitable rules
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Laches
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Part of equitable maxims.
Means "lax" or "negligent".
Can be used as a defense.
Bring lawsuits while evidence is fresh.
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Defense
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Argument raised by the defendant.
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Defendant
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Party being sued.
AKA Respondent (action in Equity)
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Plaintiff
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The party suing
AKA - Petitioner (action in Equity)
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Statutes of Limitations
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-After a certain amount of time has past there cannot be a lawsuit.
-There are different time periods for different situations.
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Precedent
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A decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.
Recordings of cases were written in "year books"
Now they are called "Reporters".
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Stare Decisis
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"To stand on decided cases".
-Obligated to follow the precedents est. within their jurisdiction.
-Helps serve as guides and makes court rulings more predictable/stable.
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Two aspects of Stare Decisis
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1. decisions made by higher courts are binding on lower ones
2. a court should not overturn its own precedents unless there is a compelling reason to do so.
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Binding authority
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Any source of law that a court must follow when deciding a case
Include: constitutions, statutes, and regulations, past court decisions.
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Cases of First Impression
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-Cases where no precedents exists.
-Courts often look at Persuasive authorities for guidance and Public policy (societal values).
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Persuasive Authorities.
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Precedents of other jurisdictions.
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Legal Reasoning
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Used by judges to decide what law applies to the dispute and applying them to the facts of the case.
-Through this judges harmonize their decisions with precedents (as required by stare decisis).
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Steps to legal reasoning
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1. Key facts & issues
2. What rules of law apply to the case?
3. How do the rules of law apply to the particular facts of the case? Develops Case on Point.
4. What conclusion should be drawn?
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Case on point
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Previously decided cases that are as similar as possible to the one under consideration.
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3 Forms of legal reasoning
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1.Syllogism
2.Linear
3.Analogy
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Syllogism Reasoning
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Logical relationship involving a major premise, minor premise, and a conclusion.
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Linear Reasoning
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Proceeds to 1 point to another with the final point being the conclusion.
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Analogy reasoning
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Compare facts of the case at hand with the precedent case to the extent that the patterns are similar to apply the same rule of law.
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Restatements of the Law
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Summarize the common law rules followed by most states.
Do not have the force of law
Heavily depended on by judges to make decisions.
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Jurisprudence
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learning about different schools of jurisprudential thought and discovering how the approaches to law characteristics of each school can affect a judicial decision making.
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legislative branch function
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Interpret and apply the law.
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Schools of Jurisprudential Thought
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1. Natural Law
2. Legal Positivist
3. Historical School
4. Legal Realism
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Natural Law
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Believe that a higher or universal law exists that applies to all human beings & that written laws should imitate these inherent principles.
---ex. "natural rights" or "human rights" - people from a foreign country working for a Co. in the US do not have the same rights as people who are…
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Legal Positivist
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Believe there is no higher law than a nation's positive law.
Law is a law & must be obeyed until it is changed.
Must be followed even if unjust to prevent anarchy.
--A judge is more likely to defer to an existing law.
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Historical School
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Emphasizes the evolutionary process of law by concentrating on the origin & history of the legal system.
Looks to the past to discover what the principles of contemporary law should be.
Will strictly follow decisions made in past cases.
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Legal Realism
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Takes into account customary practices both socially and economically.
--Influenced the growth of the sociological school of jurisprudence, which views law as a tool for promoting social justice.
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Classifications of Law
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Substantive: consist of all laws that define, describe, regulate, & create legal rights & obliglations.
Procedural: Laws that delineate the methods of enforcing the rights est. by substantive.
Federal -- State -- Private (entity to entity) -- Public ( persons & gov.) -- National -- Inte…
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Civil Law
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Spells out the rights & duties that exist btw persons & btw persons & their gov. , as well as relief available when a person's rights are violated.
--Typically it is Private party vs. private party. Can include Private vs. Gov.
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Criminal Law
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Concerned with wrongs committed against the public as a whole.
Defined and prohibited by local, state, or federal gov. statutes
--prosecuted by public officials (D.A) on behalf of the state
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2 types of courts
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Federal and State
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Levels of tiers
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1.Trial Court: Evidence is presented & testimony given
2.Court of Appeals or Appellate court (published)
3. State Supreme Court or US Supreme Court
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Opinions
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How courts are explained.
Contains the courts reasons for the decision, rules of law that apply, & the judgement.
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Types of Opinions
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1. Unanimous: All agree on an opinion
2.Majority: Over half agree
3. Concurring: Agrees w/ the majority BUT for different reasons.
4. Dissenting: Presents the views of 1 or more who disagree w/ the majority's decision. (Used later to over-rule)
5. Per Curiam: 'By the court' does not i…
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Jurisdiction
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'The power to speak'.
Must est. before a court can hear a case.
Must have over the: person (or company) suing, the defendant, or the property involved in the dispute.
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In personam Jurisdicaiton
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Personal jurisdiction over any person/business that resides in a certain geographic area.
--authority of residents or areas like county.
--State supreme court has authority over all residents in the state.
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In Rem Jurisdiction
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Jurisdiction over the thing within the boundaries of the courts area.
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Long Arm Statute Jurisdiction
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Jurisdiction over certain out-of-state defendants based on activities that took place w/in the state.
--Must meet minimum contacts to justify
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Corporate Contacts Jurisdiction
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same as long arm statute only with a corporation.
--min. contact is met by selling or advertising the products in the state or "placing products in the stream of commerce"
--ex. Business incorporated laws in Maine, has a branch and man. plant in Georgia & advertises there = min. contact…
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Courts of General Jurisdiction
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(subject matter jurisdiction)
Can decide cases involving a broad array of issues. (Unlimited).
--ex. State Trial court or Federal district court
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Limited Jurisdiction
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Can only hear cases involving something specific.
--ex. probate court: matters relating to the transfer of a person's assets after the person's death.
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Court's jurisdiction over subject matter
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Defined in the statute or constitution creating the court.
---Can also be limited by the sum of controversy (felony/misdemeanor, or trial/appeal).
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Courts of Original Jurisdiction
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courts in which lawsuits begin, trials take place, and evidence is presented.
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Appellate Jurisdiction
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The case has already been heard.
Act as reviewing courts.
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Jurisdiction of Federal Courts
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Limited.
Has subject matter jurisdiction in two ways:
1. Federal Question: Must have something to do with the Constitution
2. Diversity of Citizenship: The plaintiff & defendant must be residence of different states & The dollar amount must exceed $75,000
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Exclusive Federal, Concurrent, & Exclusive State Jurisdiction
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Exc. Fed: cases involving the Federal law. (bankruptcy, trademark)
Concurrent: Can be held in either federal or state courts. Most cases involving diversity of citizenship
Exc. State: (divorce & adoption)
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Venue
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Concerned w/ the most appropriate location for a trial.
-A court trying a case should be in the geographic neighborhood where the incident occurred or the people reside.
--criminal - where the crime happened
--civil - where the people reside.
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Standing to sue
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Sufficient stake in the matter to justify seeking relief through the court system.
The party must have suffered by the action.
--a person can have this on behalf of another person.
Requires that the controversy at issue be a justiciable controversy: real & substantial.
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Principal from southern prestige ind.
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An out-of-state defendant can be subject to state court jurisdiction through long arm statute or corporate contact through minimal contacts with people in that state.
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State Courts Structure
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1. Local Trial Courts of limited jurisdiction.
2.State trial courts of general jurisdiction. (Hear both civil & Criminal lawsuits)
3. State courts of appeals (intermediate appellate courts).
4. States Highest Court ( State Supreme Court).
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Trial courts
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Trials are held & testimony is taken.
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Limited Jurisdiction Courts
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AKA Special Inferior trial courts or Minor Judiciary courts
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Small Claims Courts
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-Are inferior trial courts
-Hear only civil cases involving less than a certain amount (5,000 the amount differs w/ each state.)
-Conducted informally w/o a lawyer.
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Domestic relations courts
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-Limited jurisdiction.
-Handle primarily divorce actions & child custody.
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Local Municipal courts
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-Deal w/ traffic cases
-Limited jurisdiction
-Trial court
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Appellate Court
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-Can be an intermediate or State's highest court
-Don't conduct new trials.
-Panel of 3 or more judges review the record of the case on appeal (includes the transcript of the proceeding & determining if there was an error made by the trial court).
--Focus on Questions of Law not questi…
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Question of Fact
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Deals w/ what really happened in regard to the dispute being tried.
ex.- whether or not a party actually burned a flag.
-Takes place in trial courts
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Question of Law
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Concerned w/ application or interpretation of the law.
-ex. Whether flag burning is a form of speech protected by the 1st amendment.
-Only a judge can rule this, not a jury.
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Highest State Courts
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-Usually called Supreme Court.
-Decisions of ea. of these on all questions of state law are final.
-Only when issues of federal law are involved can the US supreme court overrule the State supreme court.
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The Federal Court System
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1. US district courts (trial courts of general jurisdiction).
2. US courts of appeals (intermediate courts of appeals)
3. US Supreme Court.
-judges are appointed by the president & confirmed by the Senate & receive lifetime appointment
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US District Courts
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-Have original jurisdiction when involving federal law and concurrent w/ states when involving diversity.
-At least 1 in each state (varies on population)
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U.S Courts of Appeals
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-13 AKA U.S Circuit courts of appeals.
-12 circuit courts Hear lawsuits appeal from US district courts located w/in the geographical boundaries.
-13th is called the Federal Circuit (involving patent law & US gov. as a defendant)
-binding on all courts w/in the circuit.
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United States Supreme Court
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The highest -all the rest are inferior.
-Consist of 9 Justices
-Mostly is a review of the appellate instead of trial.
-Has the highest authority involving federal questions.
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Appeals to the Supreme Court
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-A party must request the court to issue a writ of certiorari.
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Writ of Certiorari
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-An order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review.
-Will not issue this unless 4 of 9 justices approve it. (Rule of Four)
-Most are denied Only 100 heard a year
-Does not mean they agree nor based on the merits, It …
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Petitions Granted by the court
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- raise important constitutional questions or have conflicting decisions on a significant issue.
-They do not give reasoning for choosing the cases to be heard so it is hard to predict which cases will be selected.
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Litigation
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-Process of resolving a dispute through the court system
-Expensive & time consuming
-Due to backlog it may take several years for a case to be heard.
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Alternative Dispute Resolution (ADR)
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-Businesses turning to this b/c litigation takes too long & is expensive.
-Adv -- Flexibility-The parties control how they attempt to settle the dispute.
-Offers more privacy -- don before a trial begins
90% of civil cases are resolved by this
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Different forms of ADR
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-negotiation
-mediation
-arbitration
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Negotiation
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-Simplest form of ADR.
-Parties attempt to settle their dispute informally, w/ or w/o attorneys to rep. them.
-Can happen before, during, & after a trial but before an appeal.
-Attorneys act as advocates.( Put clients interests first).
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Mediation
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-Neutral 3rd party works w/ both sides to facilitate a resolution. May offer a proposal (solution.) Does cost a fee split by parties.
-Mediator talks w/ the parties separately and jointly.
-Reduces hostility BTW parties.
-Good for long-term rel. disputes (Business partners)
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Arbitration
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-Formal - Neutral 3rd party or a panel of experts hears a dispute & imposes a resolution on the parties
-The decision can be decided to be legally binding (ability to appeal is limited) or non-binding (can proceed to lawsuit if they don't agree on the decision made by 3rd party).
-Most …
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Award
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The decision of an arbitrator (3rd party)
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Arbitration Clause
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In a contract, a written agreement specifying that any dispute arising under the contract will be resolved through arbitration rather than the court system
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Arbitration Statutes
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Some states make parties go through arbitration, such as disputes involving public employees.
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Other types of ADR
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1.Early Neutral Case Evaluation (3rd party explains the strengths & weaknesses of both sides)
2.Mini-Trial (3rd party tells how the court will likely side)
3.Summary jury trials (Jury creates a verdict but is not binding)
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Police Powers
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State regulatory powers.
-Refers to broad right of state gov. to regulate private activities to protect or promote the public order, health, safety, morals, & general welfare.
-ex. parking regulation, zoning restrictions, fire & building codes.
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Privileges & Immunities Clause
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Prevents a state from imposing unreasonable burdens on citizens of another state.
-Must have a substantial reason for treating the non-resident different from a resident
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Full faith & Credit Clause
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Ensures that rights est. under deeds, wills, contracts, & similar instruments in one state will be honored & enforced in all states.
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Checks and Balances
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Allows ea. branch to limit the actions of the other 2 branches.
-ex. legislative branch (Congress) can enact a law, but the president (exec. branch) can veto it.
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3 Branches and their power
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-Legislative:makes laws
-Executive: enforces laws.
-Judicial:interprets laws
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Commerce clause
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Permit congress to regulate Commerce w/ foreign nations, states, and tribes.
-Has the greatest impact on business
-Now includes both intrastate (w/in) and interstate (btw)
-national gov. have the exclusive right to regulate commerce that substantially affects trade and commerce among t…
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Supremacy Clause
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The constitution, laws, & treaties of the US are "the supreme law of the land".
-Some powers are concurrent (shared by the fed. & state) but you need to find which law governs in a particular circumstance.
-Preemption can occur
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Preemption
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When congress chooses to act exclusively in an area in which the federal gov. & states have concurrent powers.
-ex. Guy suing b/c injury of medical device - passed the approval test by Fed. gov.
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Taxing & Spending Powers
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--Congress has the "power to lay & collect taxes, Duties, Imposts, & Excises.
--Must tax all states the same.
--Has the spending power "to pay the debts and provide for the common Defence & general Welfare of the US". as long as it doesn't violate the Bill of Rights.
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Bill of Rights
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Ten amendments of protections for the individual against various types of interference by the federal or state gov.
Limited only by powers of the national government.
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1st Amendment of the Bill of Rights
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-Guarantee the freedom of religion, speech, & the press & the rights to assemble peaceably & to petition the gov.
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Types of Speech
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-Symbolic: gestures, movements, articles of clothing
-Corporate Political: ex. spend freely on support for presidential candidate.
-Commercial: advertising & marketing of businesses ex. preventing consumers from being misled.
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What criteria makes Commercial Speech valid restrictions
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1.must seek to implement a substantial gov. interest
2. directly advance that interest
3.Go no further than necessary to accomplish its objective.
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Unprotected Speech
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Obscene Speech: 1. violates contemporary community standards. 2.interest in sex. 3. offensive sexual conduct. 4.lacks serious redeeming literary, artistic, political, or scientific merit.
Online Obscenity: Children's Internet Protection Act made schools install filtering software
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Procedural Due process
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-Requires that any gov. decision to take life, liberty, or property must be made equitably- proper notice & opportunity to be heard.
-Requires fair procedures: requiring that a person have at least an opportunity to object to a proposed action before an neutral decision maker.
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Due Process Clause: 2 aspects
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No person shall be deprived of "life, liberty, or property, w/o due process of law."
1.procedural
2.substantive
-Applies to "legal persons" aka Corporations & individuals
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Substantive due Process
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Protects an individual's life, liberty, or property against certain gov. actions regardless of the fairness of the procedures used to implement them.
-Must have a substantial reason for taking any action that infringes on a person's free speech rights
-Needs to rationally relate to any …
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Equal Protection Clause
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--Gov. cannot enact laws that treat similarly situated individuals differently.
-violates when laws limit only certain people.
-ex. Violate when there is an exception to allow truck owners to advertise their own businesses.
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Standards used to determine violations of Equal Protection Clause
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1.Strict Scrutiny:must promote compelling state interest & based on suspect trait.-past discrimination
2.intermediate scrutiny: based on discrimination of gender or legitimacy-ex.rape
3."rational basis" test:Must be valid on a rational basis. (hard not to pass)
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Utilitarianism
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-Out-come oriented
-"The greatest good ;for the greatest number"
-Requires 1. determination of which individuals well be affected by the action 2. a cost-benefit analysis 3. choice among alternative actions that will produce max. societal utility (greatest pos. benefits for the greatest…
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Categorical imperative
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Duty-Based ethics through philosophical reasoning.
-Ind. should evaluate their actions in light of the consequences that would follow if everyone in society acted they same way
-ex. everyone cheated on a test=test is meaningless.
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Principle of rights
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Key factor in determining whether a business decision is ethical is how the decision affects the rights of others.
-Duty-based ethic
-Have to determine which right has the greatest amount of weight.
-ex. Keep a plant open to save 12 workers or shut the plant down due to possible water …
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Rights based philosophies
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Duty-based ethical standards imply that human beings have basic rights.
Based on which right is stronger to determine a conclusion.
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Duty-Based ethics
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standards derived from revealed truths, such a religious precepts or philosophical reasoning.
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Corporate social responsibility
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Those who run corp. can & should act ethically & be accountable to society for their actions.
1. stakeholder: consider impact on the workers, ect.
2. corp. citizenship: promoting goals & taking step to solving societal problems. (corp. sustainability)
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Ethics
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Study of what constitutes right/wrong behavior.
-Branch of philosophy
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What is the purpose of the law?
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Certainty
Stability
Safety
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Why am I in B-law?
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The law touches every area of your life including business
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LSB 3213: FINAL EXAM