BUSA 2106 EXAM1
Stare Decisis
"to stand on decided cases". A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
Constitutional Law
(Public law) legal issues that arise from interpreting state or federal constitution
Administrative Law
(Public law) legal principles in lived in the working of administrative agencies
Case Law & Common Law Doctrine
1) Case law - the rules of law announced in court decisions. Includes the aggregate of reported cases that interpret judicial precedents, statues, regulations, and constitutional provisions. Doctrines and principles announced in case law cases govern all areas not covered by statutory law or admin. law. 2) Common Law - the body of law developed from custom or judicial decisions in English and U.S. Courts, not attributable to a legislature. Includes all case law.
Classification of Laws
1. criminal law and civil law 2.substantive law and procedural law 3.public law and private law
Judgment
A decision by a court that resolves a controversy and determines the rights and obligations of the parties
Outcome Based Ethics
An action is ethical based on whether it produces the greatest good for the greatest number of people upon which it has an effect
Persuasive authority
Any primary or secondary source of law which a court may, but which the court is not bound to, rely upon for guidance in resolving a dispute.
Original vs. appellate jurisdiction
Appellate:Reviewing courts; needs order from a judge or judgement of a lower/trial court original: a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision.
US District Courts
Are trial level courts where federal actions commence. Every state has at least one federal district. Many states are broken into multiple districts.
Civil vs. Criminal law.
Civil: mainly concerns obligations that private parties owe to each other. Criminal: law in which the government prosecutes someone for committing a crime.
How law affects business and business decisions
Contracts, Sales, Negotiable instruments, creditors' rights, intellectual property, e-commerce, product liability, torts, agency, business organizations, professional liability, courts and court procedures.
Supremacy Clause
Establishes the U.S. Constitution and federal treaties, laws, and regulations as the supreme law of the land
Duty Based Ethics
Ethics based on the underlying concept of duty regardless of the consequences of the action taken in keeping with duty.
Bill of Rights
First ten amendments to the U.S. Constitution that were added in 1791 Approved by the states Guarantees certain fundamental rights to natural persons and protects those rights from intrusive government action
Privacy Rights
Fundamental right not expressly found in the constitution, but derived from First, Fifth and Fourteenth Amendments. Laws and policies affecting privacy are subject to the compelling interest test.
Commerce Clause
Grants Congress the power to regulate commerce with foreign nations, and among the several states, and with Indian tribes Types of commerce regulated by federal government Commerce with Native American tribes Foreign Interstate
Trial courts
Have a single judge Are where legal action is initiated and facts and evidence are presented. In most cases, either party can demand a trial by jury, where permitted by law
Ethical Reasoning
Is the Action Legal? Would it Maximize Shareholder Value? Is the Action Ethical? What is Ethical?
In personam (over the person) jurisdiction
Jurisdiction over the parties to lawsuit. The people involved give this jurisdiction to the court
Statutory Law
Laws made by legislatures (Congress)
Pleadings
Legal documents that are filed with court to begin litigation process
Law
Made up of rules Rules laid down by the state and backed up by enforcement
Utilitarianism
Moral theory which dictates that people must choose the action or follow the rule that provides the greatest good to society
Police Powers
Permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare Power to regulate intrastate commerce Includes the authority to enact laws that regulate the conduct of business
Following a State Court Case
Pleading-->Pretrial Motion -->Discovery --> pretrial conference --> trail --> post trial motion-->appeal
Corporate Political Speech
Political speech by corporations is protected by the First Amendment. In Citizens United v. Federal Election Commission (2010) the Supreme Court ruled that corporations can spend freely to support or oppose candidates for President and Congress.
Categorical Imperative
Premised on the belief that general guiding principles for moral behavior can be derived from human nature.
Precedent
Prior judicial decision relied upon as an example of a rule of law
Which Source of Law has Priority
Priority of law in US is the US constitution and treaties take precedence over all other laws. Federal statues priority over federal regulations. federal laws take precedence over state or local laws state constitution ranks as highest state law, state statutes take precedence over state regulations. state laws take precedence over local laws
Due Process Clause
Procedural: procedures depriving an individual of her rights must be fair and equitable. Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate. Substantive: focuses on content or substance of legislation. Laws limiting fundamental rights (speech, privacy, religion) must have a "compelling state interest."
Establishment Clause
Prohibits the government from either establishing a state religion or promoting one religion over another Guarantees that there will be no state-sponsored religion
Free Exercise Clause
Prohibits the government from interfering with the free exercise of religion in the United States
Preemption
Provides that federal law takes precedence over state or local law
1st Amendment - Freedom of Speech
Right to engage in oral, written, and symbolic speech protected by the First Amendment Honored freedom guaranteed by the Bill of Rights Protects speech only, not conduct
Federal Form of Government
Shares power between national and state governments. National government has limited, enumerated powers delegated from States.
Equal Protection
Similarly situated individuals must be treated in the same manner. Under the Fourteenth Amendment, a state may not "deny to any person within its jurisdiction the equal protection of the laws." A law or action that limits the liberty of some person, but not others, may violate the Equal Protection clause.
Jurisdiction
State Court: to hear cases that federal courts do not have jurisdiction to hear. Supreme Court: It is an appellate court. It hears appeals from federal circuit courts of appeals and, under certain circumstances, from federal district courts, special federal courts, and the highest state courts
Substantive vs. Procedural law
Sub:sets the rights and duties of people as they act in society. Proce: controls the behavior of government bodies (mainly courts) as they establish and enforce rules of substantive law.
Checks and Balances
System built into the U.S. Constitution to prevent any one of the three branches of the government from becoming too powerful
US Court of Appeals
The federal appellate court is broken into federal circuits and is often referred to as the Circuit Court of Appeals. A Circuit is a collection of districts. A Circuit Court is responsible for appeals from a collection of District Courts
Highest State Court
The highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts.
Federal vs. State law
The law that applies to situations where state and federal laws disagree is called the supremacy clause, which is part of article VI of the Constitution. The supremacy clause contains what's known as the doctrine of pre-emption, which says that the federal government wins in the case of conflicting legislation.
Defendant's case
The person defending or denying; the party against whom relief or recovery is sought in an action or suit, or the accused in a criminal case
Subject Matter jurisdiction
The power of a court to act with respect to a particular claim. It cannot be waived by any party and can be called into question by parties or court at any time.
Discovery
The process of gathering evidence concerning the case. Discovery involves: Depositions (sworn testimony by a party or a witness). Interrogatories (written questions by one party towards the other made with assistance from the attorneys).
Religious Ethical Standards
The rightness or wrongness of an action is usually judged according to its conformity to an absolute rule that commands a particular form of behavior
Business Ethics
The standards of conduct and moral values governing actions and decisions in the work environment
United States Supreme Court
This is the country's highest court. It is compromised of nine justices who are nominated by the President and confirmed by the U.S. Senate.
Federal Court System
Three tiered model 1. US district courts (trial courts of general jurisdiction) 2. U.S. courts of appeals (intermediate courts of appeals) 3. The United States Supreme Court
Commercial Speech
Used by businesses Advertising Subject to time, place, and manner restrictions
Departure from Precedent (reversal)
When a higher court hears an appeal form a lower court and changes/reverses the lower courts decision.
Writ of Certiorari
a discretionary proceeding by which an appellate court may review the ruling of an inferior tribunal
Trial
a formal examination of evidence before a judge, and typically before a jury, in order to decide guilt in a case of criminal or civil proceedings.
Search Warrants
a legal document authorizing a police officer or other official to enter and search premises
Plaintiff's case
a person who brings a case against another in a court of law.
Prosecutor
a person, especially a public official, who institutes legal proceedings against someone.
Summons
an official notice to a person that a lawsuit has been commenced against him or her and that he or she mist appear in court to answer charges
Standing
before a party can bring a lawsuit to court, that party must have standing to sue, or a sufficient state in a matter to justify seeking relief through the court system. Standing means that the party that file the action in court has a legally protected interest at stake in the litigation. 1. Harm 2. Causation 3. Remedy
Opening Statements
by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative. The trial begins with the opening statement of the party with the burden of proof.
Ethics
code of moral principles that sets standards of good or bad, or right or wrong, in our conduct.
Venue
concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location where incident occurred or where the parties reside
Supremacy Clause
establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land
Exclusive vs. Concurrent jurisdiction
exclusive: exists where one court has the power to adjudicate a case to the exclusion of all other courts. Concurrent:which more than one court may take jurisdiction over the case.
Verdict
findings of fact by the jury
Reasonable Restrictions
for communicating ideas, which can incidentally discourage free expression. If they promote "imminent lawless action". Reasonable restrictions on the means for communicating ideas, symbolic expression or nonverbal communication receives less protection than pure speech, obscene material is outside the bounds of constitutional protection"
Ethical Code of Conduct
formalized rules and standards that describe what a company expects of its employees
Appellate Courts
hears appeals from trail courts -review trial court records to determine whether there have been any errors at trial -appellate court reviews hear either pertinent parts or the whole trial court record from lower court-no new evidence or testimony is permitted -appellate court decisions are appealable to the state's highest court (state supreme court)
State Court Systems
highest court in a state court system; it hears appeals from intermediate appellate state courts and certain trial courts. -decisions of highest state courts are final unless a question of law is involved that is appealable to the U.S. Supreme Court
Complaint
in legal practices the first written statement of the plaintiffs position and allegations (starts lawsuit)
Minimum Contacts
in the United States law of civil procedure to determine when it is appropriate for a court in one state to assert personal jurisdiction over a defendant from another state.
Rule of Four
is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket.
Knowing law is not enough - business managers will also be pressured to make ethical decisions
legal regulation professional code of ethics organizational code of ethics individual values
Federal Question
litigation involving the application of interpretation of the federal constitution, federal statutes, federal treaties, or federal agencies
"Gray Areas" in the Law
make it difficult to tell how the law will be applied to a specific business situation
Cost-benefit Analysis
practical use of welfare economics to evaluate potential projects
Jury Instructions
provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true.
Long arm statute
statute extends a state's jurisdiction to nonresidents who were not served a summons within the state.
4th Amendment - Searches and Seizures
the "right of the people to be secure in their persons, houses, papers, and effects."
Jurisdiction over corporations
the Court emphasized that general jurisdiction over a corporation is permissible only in a state "in which the corporation is fairly regarded as at home," and indicated that the paradigm is the state of incorporation or principal place of business.
Federal Jurisdiction
the U.S. Constitution containing fifty states and a federal district which elect the President and Vice President, and having other territories and possessions in its national jurisdiction.
1st Amendment - Freedom of Religion
the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion,
Jurisdiction in Cyberspace - Sliding Scale Standard
the courts have developed a sliding scale standard to determine when they can exercise personal jurisdiction over an out of state defendant based on the defendant's web activities 1. When the defendant conducts substantial business over the internet (such as contracts and sales), jurisdiction is proper 2. When there is some interactivity through a Web site, jurisdiction may be proper, depending on the circumstances. Even a single contact can satisfy the minimum-contacts requirement in certain situations. 3. When a defendant merely engages in passive advertising on the Web, jurisdiction is never proper. An internet communication is typically considered passive if people have to voluntarily access it to read the message and active if it is sent to specific individuals.
Defendant
the party involved in a lawsuit that is sued, the party is required to respond to plaintiff's complaint
Plaintiff
the person who initiates a lawsuit
Diversity of Citizenship
the plaintiffs filing a lawsuit must be from states different from those of the defendants, along with over $75k at stake
Judicial Review
the power and authority of a court or other governmental agency to adjudicate controversies and otherwise deal with matters brought before it
Jury Selection (Voir Dire)
the preliminary examination of prospective jurors for the purpose of ascertaining bias or interest in lawsuit
Motion for summary judgment
the process by which the parties make written or oral request that the judge issue an order or ruling
Answer
the responsive pleading filed by a defendant
Appeal
the right of the litigation parties to have a legal decisions of the trail judge reviewed by an appellate court
In Rem (over the property) jurisdiction
to hear a case because of jurisdiction over the property of the lawsuit
Motion for New Trial
will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge.
