BUS 154 Midterm questions
What is "stare decisis"? Discuss the appellate process-note from local to the US Supreme Court.
"Stare decisis" is a legal principle by which judges are obliged to respect the precedent established by prior decisions. Courts should go along with precedent and not disturb settled matters. The appellate process - note from local to the US Supreme Court goes by an appeal, which is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision.
Why do "court decisions" play a prominent role in applying statutes in deciding cases? Hint-diversity, cases before statutes, ambiguity of the English language, judicial review, reasoning by analogy and interpretation.
- Courts apply the law, courts do not make the law. Play important role in the shaping the law - Reason by Analogy-if no law on point, court will apply a relevant law; as science outpaces laws in place, some cases do not have certain laws that can be applied to them, as a result, judges need to find related laws in order to resolve the disputes - Judicial Review-courts have the power to declare an act of the other branches as in violation of the US Constitution and thus the law is null and void. - Ambiguity of English Language: courts define and clarify ambiguities which then become the law (because laws can not be vague and imprecise) - Accommodate Diversity - Preservation of Local Customs and Practices-(Nationalized Through Appellate Process)-examine appellate process in power points on appellate process - Court Decisions in many cases precede statutes » In many cases the legislature will codify court decisions • McNaughten Rule-insanity defense incorporated into law by statute
Briefly discuss the functional areas of a business and the appropriate laws for each functional area of business.
- Management: Contract Law, Corporate Law, Regulatory Law, Securities Law, Sarbanes Oxley Act - Supply Chain Management: Contract Law, Environmental Law, Product Liability, Tort Law, Regulatory Law - Marketing: Antitrust Laws, Contract Law, Regulatory Laws, Product Liability, Environmental Law, Tort Law - Research and Development: Contract Law, Intellectual Property Law, Tort Law, Environmental Law, Regulatory Law - Accounting and Finance: Contract Law, Banking Laws, Bankruptcy Laws, Securities Laws, Regulatory Law, Sarbanes Oxley Act - Human Resources: Contract Laws, Tax Laws, Tax Contribution Laws, Discharge Laws, Immigration Laws, Discrimination Laws, Privacy Laws, Wages, Benefits, Union, Workplace Safety
List the Federal Courts of Appeal Districts by location.
1. Boston 2. New York 3. Philadelphia 4. Richmond 5. Houston 6. Cincinnati 7. Chicago 8. St. Paul 9. San Francisco 10. Denver 11. Atlanta 12. District of Columbia: Washington D.C. 13. Court of Appeals for the Federal Circuit: Washington D.C.
List the federal appellate districts by circuit and city. Note: 9th San Francisco, 1st Boston.
1. Boston, Massachusetts 2. New York, New York 3. Philadelphia, Pennsylvania 4. Richmond, Virginia 5. Houston, Texas 6. Cincinnati, Ohio 7. Chicago, Illinois 8. St. Paul, Minnesota 9. San Francisco, California 10. Denver, Colorado 11. Atlanta, Georgia 12. District of Columbia: Washington D.C. 13. Court of Appeals for the Federal Circuit: Washington D.C.
In terms of "indirect democracy", discuss the process by which an "idea" is converted into a code.
1. Code starts with an Idea 2. If legislative branch decides to sponsor it then it becomes a Bill 3. The bill then goes into the Committee system(Both Chambers) 4. Floor of both Chambers: both chambers go over the bill and make adjustments 5. Conference Committee: both committees try to agree on one (same version) of the bill 6. Vote on Reconciliation; send to president for him to sign 7. Presidential: after the president signs the statue; it becomes a code
Discuss at least four reasons why the court will apply equitable remedies. Note: UMIRU
1. Equitable remedies: Specific performance, an injunction, and rescission. 2. Specific performance: Ordering a party to perform an agreement as promised. 3. An injunction: An order to a party to cease engaging in a specific activity or to undo some wrong or injury. To receive junction you must show likelihood of success on the merits, and the failure to do so will cause irreparable harm to the public interest. 4. Rescission: The cancellation of a contractual obligation. Today's courts will not grant equitable remedies unless the remedy at law (monetary damages) is inadequate
Briefly discuss the Amendments of the Bill of Rights.
1st - Freedom of speech, press, association, assembly, petition 2nd - Right to bear arms 3rd - Quartering to soldiers 4th - Search and seizure Government must have a warrant issued by impartial magistrate. Exceptions are plain view, stop and frisk, emergencies, automobiles, search incident to lawful arrest and consent. Search warrant must be based on probable cause specifying the pace to be search and things to be seized and search may not exceed description on warrant. 5th -GI rights Grand jury indictment - Prosecutor must prove beyond reasonable doubt to jury that individual is guilty Due process - state must respect all legal rights given to an individual Self incrimination: can't be forced to orally disclose incriminating evidence. No mental or physical coercion by police. Double Jeopardy - Cannot be tried twice for the same crime Self incrimination (Miranda rights) - silent, statement use, right to attorney, appoint Just Compensation Clause - requires the government to pay just compensation, interpreted as market value, to the owner of the property, valued at the time of the takings 6th - Criminal trial court procedure. Right to attorney at state expense, subpoena powers, confrontation, jury 7th - Right to trial by jury in civil cases 8th - Cruel and unusual punishment 9th - Reserved rights of the people 10th - Reserved rights of the states 11th - Prevents suits against state in federal court 12th - Revision of electoral college, election of presidents 13th - Abolition of slavery 14th - Privileges and immunities, citizenship, due process, equal protection clause 15th - Prohibit denial of vote based on race 16th - Federal income tax 17th - Election of senators 18th - Prohibition 19th - Women's suffrage 20th - Terms of president and congress 21st - Repeal of prohibition 22nd - Two term president 23rd - People in Washington DC can vote 24th - Abolition of poll tax 25th - Presidential disability and succession 26th - Reduces voting age to 18 27th - Limits power of congress to raise own salaries
What is a "remedy". Discuss the differences between remedies at law and remedies in equity.
A "remedy" is the relief given to an innocent party to enforce a right or compensate for the violation of a right. Remedy at law is when a conflict is settled by compensating the plaintiff with assets (such as money or land). Remedy in equity is when monetary compensation is not adequate and are therefore are compensated by remedies of specific performances, injunction, or rescission. Thus, the difference between the two is the form of compensation.
Discuss the contents of a "complaint".
A complaint is filed in court. The plaintiff names the party to be sued, states the facts of the case, and ask for a remedy in the case. Defendant has 30 days to find fault and file for dismissal. Both parties give each other discovery, if fail to comply, case may be thrown out.
In general, discuss the various Amendments that apply to "voting enfranchisement" in the US Constitution.
Amendment 15 - rights not to be denied on account of race Amendment 17 - election of senators Amendment 23 - presidential vote in D.C. Amendment 24 - poll tax Amendment 26 - right to vote at age 18
Discuss the appropriate laws applicable to top management.
Appropriate laws applicable to top management are patents, copyrights, and trademarks. Patents are the grants governments give to an inventor, which is the privilege to make, use, or sell his or her invention. Copyright is the exclusive right of authors to publish, print, or sell some sort of production. Trademarks are distinctive marks, slogans, motto, device, etc. that a manufacturer produces and identified as their makings.
Discuss the Articles and Amendments that apply to the Executive Branch in the US Constitution.
Article 2: The executive branch Amendments: 12: made the president and vice president run together 20: shortened time before the president and congress takes office 22: limits president to 2 terms 23: gave Washington DC right to vote 25: president disability
Discuss the Articles and Amendments that apply to States in the US Constitution.
Article 4 deals with elections of congressional members. Article 6 deals with compensation. The 10th Amendment states that powers that are not delegated to federal government are reserved to the state government. The 11th Amendment deals with each State's sovereign immunity. The 14th Amendment states that States must abide by the Bill of Rights in interacting with citizens and persons within the State.
Discuss the constitutional provisions that apply to congress.
Article I - 10 Sections 1. Legislative Powers Conferred to Congress 2. House of Representative 3. Senate 4. Elections of Congressional Members 5. Judge of Elections, Qualification of Members, Rules and Proceeding and Adjournment 6. Compensation 7. Legislative Process 8. Legislative Powers of Congress-Borrow, Commerce, Immigration, Counterfeiting, Post Offices, Intellectual Property, Court System, International Law, War, National Defense, Navy, Land and Necessary and Proper Clause 9. Limitations on Congressional Powers - Slavery, Habeas Corpus, Bills of Attainder, Ex Post Facto Laws, Taxation, Internal Taxation, Appropriation, Recognition of a Monarchy 10. State Regulation - Money and Recognition of Foreign Government, Bills of Attainder, Ex Post Facto Laws, Impairment of Contract, Interference with National Commerce and War
What is the purpose of Article 1, section 8? Discuss at least four provisions of Article 1, section 8.
Article I delegates the power of making law to Congress: section 8 discusses the areas in which laws may be made: specifies the powers of Congress in great detail. To borrow Money on the credit of the United States; To provide and maintain a Navy; To establish Post Offices and post Roads; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nation.
What is the function of Article 1, section 9. Discuss at least four provisions of Article 1, section 9.
Article I, Section 9 places limitations on how law is made in the United States; The first clause in this section prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808. The second clause guarantees the rights to those accused of crimes. The third clause prohibits bills of attainder (laws that are directed against a specific person or group of persons) and "ex post facto laws" (criminal laws that make an action illegal after someone has already taken it). The fourth clause ensures that direct taxes must be apportioned by state populations
Discuss the constitutional provisions that apply to the president.
Article II - 4 Sections 1. Qualification and Election of President 2. Powers of President - Commander and Chief, Executive Departments, Appointment, International 3. Legislative Powers - State of the Union and Chief Foreign Ambassador 4. Impeachment
What is the "balancing concept" under the US Constitution? Discuss the three tests the court will apply in balancing the rights of individuals as per the public interest. SSR
Balancing concepts - Rights of individuals need to be balanced against state rights Strict Scrutiny Test: A form of judicial review that the government uses for law enactment or suspect classification. These classifications come in the basis of race, national origin, religion, alienage, and poverty. However, in order for the Strict Scrutiny Test to be lawful, the government must have a very good reason for endorsing such actions that allow for unequal treatment based on discrimination. Substantial Relations Test: A test stating that lawyers who have formerly represented a client for a case is prohibited from representing another client in the same or substantially related case/matter. Rational Basis Test: A form of review that courts use to determine the constitutionality of a law. The Rational Basis Test is passed only if it is a justifiable reason for the regulation with legitimate government interest.
Discuss the provisions of Section I of the 14th Amendment. CPDE
Citizenship - Place of birth doesn't depend on status of parents Privileges and Immunities - A citizen is entitled to the same privileges and immunities as enjoyed by citizens within the state Due Process - No person can be denied life, liberty or property without due process of law (substantive and procedural) Substantive Due Process-challenge the content of the law as enacted and passed by government. - Law must have "Proper Intent" - Law cannot be "vague" - Law cannot be "overbroad" - If Law touches on fundamental right must apply the compelling interest test. - If law applies to economic or property right, must apply the rational basis test Equal Protection Clause - Personal - State action - Unreasonable classification scheme (3 tests) - Strict scrutiny test - Government must show a compelling interest and the means to achieve that compelling interest must be narrowly tailored to the extent that there are no alternatives - Fundamental interest (religion, speech, press) - Applies to suspect classification - Substantial relations test - Age, disability, gender - Rational basis test - Property, affinity
Discuss civil procedure from pretrial motions to Appeal
Civil Procedure is the step by step process the court must go through in reaching a decision in a civil matter. The civil procedure from pretrial motions to appeal are: 1. Pretrial Motions(motion to dismiss-defective complaint/summary judgement motions-based on summary of evidence ascertained through discovery the court can decide the case without trial) 2. Mandatory Settlement Conference- attorneys meet with judge to settle the case 3. Pretrial Conference-attorneys meet with judge to schedule when trial will begin and how long the trial will take. 4. Trial-plaintiff/defendant/jury instructions(if jury)/verdict 5. Appeal-motion filed to higher court to review a decision of the lower court but case isn't retried
Discuss the differences between the civil and criminal cases. Note: discuss at least four differences.
Civil cases are typically disputes between individuals regarding the legal duties and responsibilities they owe one another. Criminal cases are generally offenses against the state, and are accordingly prosecuted by the state. Differences include: • Criminal Cases-Will have jail time as a potential punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something. • Criminal Cases- Crimes must generally be proved "beyond a reasonable doubt, whereas civil cases are proved by lower standards of proof such as "the preponderance of the evidence" (which essentially means that it was more likely than not that something occurred in a certain way.) • Criminal Cases- Almost always allow for a trial by jury, whereas civil cases do allow juries in some instances, but typically it will just be decided by a judge. • Criminal Case- Must prove that the person was in a right state of mind, whereas state of mind doesn't matter in civil cases. • Criminal Cases- Defendant is entitled to an attorney, the state must provide one if the defendant cannot afford one. Civil Cases-defendant must pay for an attorney, one has to defend him/herself if cannot afford an attorney.
Define "civil liberties". Discuss the various amendment associated with civil liberties.
Civil liberties are individual rights and freedoms that the government cannot infringe upon as they are protected by law; the first amendment is closely related to civil liberties, as it guarantees personal freedoms such as freedom of speech and practice of religion, etc.
What is the primary source of law in the Common Law Legal System. Discuss how court decisions came to play a prominent role in the "Common Law Legal System".
Common law is a body of law derived from judicial decisions (AKA judicial precedent/judge-made law/case law). Origin: Lord De Bracton - divide country into shires, appoint judges to each shire, judges rely on common practices and rules of the people. Only requirement that once judge made ruling, future cases that had same factual disputes, judge had to follow prior ruling (law of precedent/stare decisis) Rationale for Application of "Court Decisions" - courts apply the law, courts do not make the law; they play an important role in the shaping the law - Reason by Analogy - if no law on point, court will apply a relevant law. - Judicial Review - courts have the power to declare an act of the other branches as in violation of the US Constitution and thus the law is null and void. - Ambiguity of English Language - Accommodate Diversity - Preservation of Local Customs and Practices-(Nationalized Through Appellate Process)-examine appellate process in power points on appellate process - Court Decisions in many cases precede statutes - In many cases the legislature will codify court decisions • Mcnaughton Rule - insanity defense incorporated into law by statute.
In terms of the "balancing concept", briefly discuss the various tests the courts apply in balancing the interest of the public with the exercise of individual rights. CSR
Compelling Interest Test - Government must show a compelling interest, and the means to achieve that compelling interest must be narrowly tailored such that there are no other viable alternatives. This applies to fundamental interests such as Speech and Religion Substantial Relations Test - Government must show an "important interest" and the means to show that important interest must be substantially related. This applies to discrimination case such as gender, age, and disability. Rational Basis Test - Government must show a legitimate interest and the means to achieve that legitimate interest must be rationally related. This applies to property and economic issues.
Discuss the four types of procedural laws.
Consists of all laws that outline the methods of enforcing the rights established by substantive law. • Process for settling dispute-evidence • Criminal Procedure • Administrative Law • Civil Procedure • Establishes the method by which an employee must notify the employer about an on-the-job injury, prove the injury, and periodically submit additional proof to continue receiving workers' compensation benefits.
What is "constitutional law"? What are the basic concepts of the US Constitution. Note: Structure, Division, Regulation, Civil Liberties and Balancing Concept.
Constitutional Law is the body of law that defines the relationship between the executive, legislative, and judicial branch of our government. The US Constitution imposes restrictions on the exercise of government powers, structural government, and allocates power among government and extends civil liberties to the people. The Balancing Concept states that courts must balance the rights of individuals against the interest of the state. No rights are absolute and are subjected to restrictions by government.
Discuss the appropriate laws applicable to human resources.
Contract Law Tax Laws Tax Contribution Laws Discharge Laws Immigration Laws Discrimination Laws Privacy Laws Wages Benefits Union Work Place Safety
Discuss the appropriate laws applicable to accounting and finance.
Contract Law - Useful for a company between them and their workers, suppliers, or insurance that states they will fulfill their end of the deal • The essence of capitalism, which provides us with Private property transactions • It reduces risk and provides remedies in cases where contract is breached by one of parties • Commercial Contracts—facilitates commerce • Future Orientated—a way to control future, given terms of a contract • Enforced in a court of law • As economy changes, contract law changes • Cannot transact over internet (cannot buy house, car, get married, adopt child) • Contracts affect every aspect of business Banking Laws • Government regulation, which subjects banks to certain requirements, restrictions and guidelines. • This regulatory structure creates transparency between banking institutions and the individuals and corporations with whom they conduct business, among other things. Bankruptcy Laws • Bankruptcy law provides for the development of a plan that allows a debtor, who is unable to pay his creditors, to resolve his debts through the division of his assets among his creditors Credit Laws • Arise under both state and federal regulations governing interest, finance charges, cash advances, charges for extensions of credit in excess of pre-established limits, late fees or delinquency charges, premiums on credit life and credit accident and health insurance, annual fees and other charges and fees, and many others Securities Laws - Any form of ownership that can be easily traded on a secondary market, such as stocks and bonds • It also includes their derivatives, such as futures contracts, options, or mutual funds Regulatory Laws • Federal bureaucracy, example-civil rules regulating how business conducts their activities; can be fined if they violate Sarbanes Oxley Law • In response to a loss of confidence among American investors reminiscent of the Great Depression, President George W. Bush signed the Sarbanes-Oxley Act into law on July 30, 2002 • SOX is intended to ensure the reliability of publicly reported financial information and bolster confidence in U.S. capital markets • SOX contains expansive duties and penalties for corporate boards, executives, directors, auditors, attorneys, and securities analysts • Although most of SOX's provisions are mandatory only for public companies that file a Form 10-K with the Securities and Exchange Commission (SEC), many private and nonprofit companies are facing market pressures to conform to the SOX standards • Privately held companies that fail to reasonably adopt SOX-type governance and internal control structures may face increased difficulty in raising capital, higher insurance premiums, greater civil liability, and a loss of status among potential customers, investors, and donors
Discuss the appropriate laws applicable to production and transportation.
Contract law, Environmental law, Product liability, Tort law, and the Regulatory law.
Discuss the appropriate laws applicable to research and development.
Copyright/Intellectual Property and Trademark • To ensure no other company tries to steal your idea Contract Law • Useful for a company between them and their workers, suppliers, or insurance that states they will fulfill their end of the deal • The essence of capitalism, which provides us with private property transactions • It reduces risk and provides remedies in cases where contract is breached by one of parties • Commercial Contracts—facilitates commerce • Future Orientated—a way to control future, given terms of a contract • Enforced in a court of law • As economy changes, contract law changes • Cannot transact over internet (cannot buy house, car, get married, adopt child) • Contracts affect every aspect of business • Intellectual Property Law • To ensure no other company tries to steal your idea • Competition • Trademark protection • Patents • Trade secrets, stealing secrets Environmental Laws • Ensure the company isn't harming the planet anymore than they are allowed to • Very important in SCM • Environmental concerns • Recycle, Reuse • How we dispose of waste? Product Liability Laws • Someone gets injured or hurt while using the original product or updated version of it Tort Law • A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Regulatory • Federal bureaucracy, example-civil rules regulating how business conducts their activities; can be fined if they violate.
What is "critical thinking"? Discuss the various steps applied for "critical thinking". Note: SGRAEOP-audience, glaring errors, appearance and review
Critical thinking - the use of information to influence another to take your position on a fact of matter in question Gathering Information (Source of Information) Relevancy - information related in terms of time and substance Authentication - verify the information Accuracy/Reliability - background on the party providing the information Objective Evaluation Organization-prepare outline before writing the text of the information Professional Presentation • Identifying the Audience • Remove Glaring Errors • Appearance • Proof Read
In general, discuss the elements of "LAW".
Culture - Law is a manifestation of the ethics, morals and cultural patterns of society that defines good and bad behavior or right or wrong behavior Codification-Law is the product of a deliberative, rational, logical process that is prescribed by law within that society. Control - Law is designed to regulate and control conduct so that government, individuals and business will act in a predictable manner given a "social, political or economic" stimuli Enforcement - Courts have the legal obligation to enforce the law. Only the courts can grant punishment or award remedies after applying the law in determining if the law has been violated Acceptability - Generally people accept the law as serving their respective general interest
In general, discuss the various types of legal systems around the world. Note: Distinguish each by source of law.
Different forms based on sources of law Civil -Hammurabi »European-secular »Spanish-Catholic Church »Confucian-Pacific Rim-Harmony, Hierarchy and Consensus Islamic -Quoran' »Sunni »Quiyas »Ijam Bifurcated-Two Sources of Law in Same System -Sub-Saharan Africa »Nigeria-Sectarian Conflict-Ibo, Yoruba, Filani and Hausa -Hindu-India-Common Law and Hindu Socialist-State Control - Today a combination of State Control and Capitalism Common Law - US, Canada, Australia, Belize, Bahamas, Virgin Islands, India, Hong Kong, New Zealand
What is "substantive law'? List and explain four forms of substantive laws.
Due Process-no person can be denied life, liberty or property without due process of law (substantive and procedural). Due Process is in both the 5th and 14th Amendment - Substantive laws define your rights (property, personal, intangible, business relations, corporations, partnerships, civil relations) - Substantive Due Process-challenge the content of the law as enacted and passed by government. • Law must have "Proper Intent" • Law cannot be "vague" • Law cannot be "overbroad" • If Law touches on fundamental right must apply the compelling interest test. • If law applies to economic or property right, must apply the rational basis test
What is "Due Process"? Discuss the key elements of "Due Process". Note-ACU
Due process clause - No person shall be deprived of life, liberty, or property without due process of the law. Fair treatment through the normal judicial system, especially as a citizen's entitlement. The procedural due process form of due process requires that the government give a person proper notice and hearing of legal action before that person is deprived of his or her life, liberty, or property.
What is "voting/enfranchisement"? Discuss the various amendments associated with "voting/enfranchisement".
Enfranchisement is defined as a statutory right or privilege granted to a person or group by a government (especially the rights of citizenship and the right to vote). The 15th amendment prohibited the government to deprive someone of the right to vote based on race, while the 19th amendment prohibited the denial of the right to vote based on sex.
What is evidence law? What criteria must be met for evidence to be admissible.
Evidence law is the law of evidence that encompasses the rules and legal principles which govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence. There are four basic types of evidence: Demonstrative/Documentary/ Real/Testimonial • Evidence must be Relevant by relating to time and substance to the controversy in question. • Evidence must be Reliable(trustworthy)- presented in its original state and not tampered/altered/misleading. • Physical evidence(chain of custody)/ Writings(authentication)/ Testimonial(percipient[physical presence],recount, and no physical impairment) • Unbiased-Person presenting evidence has no personal stake in outcome
Discuss "FILAC" in terms of briefing a case.
FILAC method: FACTS, ISSUE, LAW, ANALYSIS, CONCLUSION Facts: The facts describe the events that led to the controversy in question. All that is required is a brief statement of the acts/physical events/other matters that caused the parties to seek relief from the judicial systems. ISSUE: This issue is the reason why parties are in court. It's a one sentence statement followed by a question mark. The issue is what the court must answer in granting or denying relief. LAW: In reaching a decision, court must apply the law. In each case, the student must find applicable law-write the applicable law( code/constitutional provision/ treaty etc.). In a full text case, the law will be explicitly stated. However, in the text, these are partially briefed cases and sometimes the authors omit the law. In this instance, please refer to the preceding section to find the law. ANALYSIS: The analysis is the application of the facts to the law in deciding the case. The analysis will include court's rationale in deciding the case. The analysis will include a review of cases, distinguishing past cases from the current case, acknowledgement that a certain case is applicable and is the governing principle in applying the law. Think of an analysis as where the court combines the facts to the law to reach a conclusion. CONCLUSION: The conclusion is only who won the case. In many instances the case has been appealed and the original plaintiff is now the defendant and the original defendant is the plaintiff. Remember, determine which court you are in (superior, appellate, supreme) and if it is the appellate court, determine who the original plaintiff was and whether the case has been appealed.
Briefly discuss the elements of traditional legal reasoning. Note: F(I)LRCSP
Fact Finding: finding all information relevant to the case Introduction: Presentation to the case Laws: Introduce laws applicable to the case Rational: Implementing rational for facts and evidence Case Analysis: Detailed analysis of the case Social Impact: How the judgment decision with affect society Personal Opinion
Discuss the appellate process from local court decision to the Supreme Court.
Filing Appeal: The appealing party must file an appeal notice with the trial court; The trial court then forwards the record of the appeal to the appellate court. Attorneys will then file appellate briefs. Appellate Review Process: The appellate court issues its opinion in the form of writing on the record of appeal as well as the attorneys' briefs and oral arguments. The court can then use this time to reverse or confirm the judgment of the trial court. Further review may be required by a higher appellate or by a Supreme Court.
Briefly discuss the Amendments in the Bill of Rights that apply to "criminal procedure".
Fourth Amendment protects people from unreasonable search/seizure without warrants. Fifth Amendment states that a person cannot be persecuted or punished without due process of law. Sixth Amendment states that a defendant has a right to trial that is judged by a jury of his/her peers in the system of court. Eighth Amendment states that courts cannot set unreasonable/excessive bail and a person should not be imposed with cruel/unusual punishments.
Discuss the appropriate laws applicable to marketing.
In relation to: Production, Product, Selling, Advertising, and reinventing the product. Protect consumers from unfair or deceptive trade practices: Deception advertising Every businesses has a legal obligation to ensure that those marketing and advertising materials are truthful and not deceptive or otherwise a violation of the law
Discuss the differences between law, ethics and morality
Law is determined and set by the courts with the influence of society in order to control behaviors. Ethics are an individual's standards that govern morally acceptable or unacceptable conduct, and are applied to social behavior. Morality is the standard or norm in a society for defining good or bad social conduct. In a legal system, the law is enforced, but morality and ethics are not enforced by the courts; law is the government's way of defining acceptable behavior.
What is a "legal system"? Discuss the common characteristics of a legal system.
Legal Systems - Institution within government designed to apply the law as enacted by the other branches of government and maintain peaceful resolution of disputes Common Characteristics of a Legal System - Peaceful Resolution of Conflict in a Society - Promote the Ethical and Moral Standards of Society - Establishment of a Formal Process in which the law is applied in resolving disputes - Predictability in Resolving Disputes when the law is applied
Discuss the various forms of legal reasoning. DILAT
Legal reasoning - using information to persuade a tryer fact and law Deductive - general to specific Inductive - specific to general Linear - interconnection of relevant facts Analogy - no law on point, use law that relates Traditional - Introduction, Law, Rationale, Case Analysis, Social Impact, Personal Opinion
Discuss the functions of law in a legal system.
Maintain Peaceful Resolution of Disputes in a Society Control and Regulate Conduct in Society Promote the Moral Standards in Society Promote Social Justice as Defined by that Society Provide Stability in Society Accommodate Peaceful Change in a Society Influence Business Planning and Operation Promote the Equal Application of the Law Provide Predictability in Application of the Law Maintain the Ethical Standards in a Society
What is "Procedural Due Process". Briefly discuss the steps applicable to Procedural Due Process. NDHIOCCDWA
Notice (Written notification of charges against you) Discovery (All evidence against you at hearing) Hearing Impartial Decision-maker Opportunity to be Heard Right to confrontation Decision based on Information Provided at hearing Written Decision Appeal
What is public law? List and discuss the various types of public law. CCCARE
Public Laws are that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society. The CCCARE fall under this category. • Constitutional Law is law based on the Constitution • Criminal Law is law that define actions that constitute crimes. • Criminal Procedure is a step by step process in reaching a decision. • Administrative Law is laws created by agencies that set up rules and regulations. • Regulatory Law is created by administrative agencies. • Entitlement Law is laws that give the individual a right to receive a value or benefit provided by the government.
In terms of the "Equal Protection Clause", discuss the tests used by the courts to determine if an act of government is a form of unreasonable or unreasonable discrimination. SSR
Strict Scrutiny test - Government must show a compelling interest and the means to achieve that compelling interest must be narrowly tailored to the extent that there are no other alternatives. Substantial Relations test - Applies to age, gender, & disability. Government must show important reason to justify classifications Rational basis test - Applies to property and affinity. Upholds constitutionality of law, for when plaintiff alleges that the legislature has made an arbitrary or irrational decision.
What is "Substantive Due Process"? Discuss the various methods used to challenge an act of government. IVOCR
Substantive due process - Category of due process that require government statutes, ordinances, regulations, and other laws be clear on their face and not overly broad in scope. Laws can be declared void for vagueness • Law must have "Proper Intent" • Law cannot be "vague" • Law cannot be "overbroad" • If Law touches on fundamental right must apply the compelling interest test. • If law applies to economic or property right, must apply the rational basis test
What is a "Suspect Classification"? Discuss the elements of a "suspect classification". IHMIE
Suspect Classification: is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination Elements of a "Suspect Classification": - Immutable Characteristic - History of Discrimination - Minority Status - Inferiority Complex - Economic Inferiority
What is a suspect classification? What are the elements of a suspect classification? IHMIE
Suspect classification is the classification of a group or groups suggesting that they are likely to be the subject of discrimination. The elements of a suspect classification are as follows: • Immutable characteristics • History of discrimination • Minority status • Inferiority complex • Economic inferiority
Discuss the constitutional provisions that apply to the states.
The 10th Amendment states that powers that are not delegated to the federal government are reserved for the states. Article IV 1. Full Faith and Credit 2. Privilege and Immunity Clause 3. Admission of State 4. Republican Form of Government Article VI 1. Debts Secured by the Federal Government Before Adoption of U.S. Constitution Shall be Valid and Enforceable 2. Supremacy Clause - Any law made pursuant to the U.S. Constitution shall be the supreme law of the land. If a state law conflicts with a federal law, the federal law prevails.
Discuss the Articles and Amendments that apply to Congress in the US Constitution.
The Articles and Amendments that apply to Congress in the US Constitution are Article 1-10, 16th Amendment, 17th Amendment, and 27th Amendment. Articles 1-10: 1. Legislative Powers Conferred to Congress 2. House of Representation 3. Senate 4. Elections of Congressional Members 5. Judge of Elections, Qualification of Members, Rules and Proceedings and Adjournment 6. Compensation 7. Legislative Process 8. Legislative Powers of Congress-Borrow, Commerce, Immigration, Counterfeiting, Post Offices, Intellectual Property, Court System, International law, War, National Defense, Navy, Land and Necessary and Proper Clause 9. Limitations on Congressional Powers-Slavery, Habeas Corpus, Bills of Attainder, Ex Post Facto laws, Taxation, Internal Taxation, Appropriation, Recognition of a Monarchy 10. State Regulation-Money and Recognition of Foreign Government, Bills of Attainder Ex: Post Facto Laws, Impairment of Contract, interference with national commerce and War The 16th Amendment deals with income tax. The 17th Amendment deals with direct election of Senators. The 27th Amendment deals with Congressional Compensation.
What is the Bill of Rights? What was the original intent of the Bill of Rights? What is "selective incorporation".
The Bill of Rights is made up of the first 10 Amendments in the Constitution. The original intent of the Bill of Rights was in order to get the Constitution ratified. It helped to limit the power of the Federal Government. Selective incorporation is a constitutional doctrine that specifies that States do not have the right to take away constitutional rights of U.S. citizens that are imprinted in the Bill of Rights.
Briefly discuss the provisions of the First Amendment
The First Amendment guarantees the protection of several basic liberties. 1. Freedom of Religion 2. Freedom of Speech and of the Press 3. Freedom of Assembly and Petition
Discuss the Legal Aspects of the Constitution in terms of structure of government, voting/enfranchisement and civil liberties.
The US Congress is the legislative branch of the federal government. The executive power is vested in the President. The right to vote is gained through the democratic process. The 15th amendment prohibited government to deprive someone of the right to vote based on race. The 19th amendment prohibited the denial of the right to vote based on sex. Civil liberties (ex. freedom of speech, right to bear arms, right to privacy) make up the Bill of Rights.
Discuss the appellate process from a local decision to the Supreme Court.
The appellate process typically occurs when people who are not satisfied with the decisions of the local courts challenge the decision by turning to an appellate court. If the person is still not satisfied with the ruling from the appellate court, they can request a further decision from the Supreme Court. They may be able to petition for a writ of certiorari - a document requesting the review of the case by the Supreme Court, in certain cases
What is "civil procedure"? Discuss the process from Pleadings to Appeal.
The court is requested by motion to decide the case prior to trial based on information in pleading. This leads to pretrial conference when attorney may meet with the judge to explore possibility of a settlement or identify matters in a dispute and go through with the trial. The right to jury and jury selection is when the party asks for a jury or waive their right to a jury. Next is the trial with opening statements, examination of witnesses, potential motions, closing arguments, jury instructions, and verdict. Final process is the appeal where either party may appeal the jury verdict and also the judge's ruling on any pretrial motion.
What was the original intent of the "Bill of Rights"? Which provisions of the "Bill of Rights" have not been incorporated into the "Due Process Clause" of the 14th Amendment.
The original Bill of Rights only applied to the Federal government, not the states (Confirmed in Barron v. Baltimore). They are certain fundamental rights, and protect rights from intrusive government action. Originally protected from intrusive action by federal government only. Due process clause incorporated everything except the 3rd, and 7th amendments, as well as grand jury indictment.
What is the primary purpose of 14th Amendment? Discuss the provisions of section 1 of the 14th Amendment. CPDE
The primary purpose of the 14th Amendment is to grant U.S. citizenship status "to all persons born or naturalized in the United States". In regards to the provisions of section 1 of the 14th Amendment, there exists 4 points as follows: • Citizenship: Citizenship does not depend on the status of parents or naturalization • Privileges and Immunities: A citizen is entitled to the same privileges and immunities as citizens within the state in terms of travel, access to courts, sales and trade in property, and professions and employment. • Due Process: The due process from the 14th Amendment states that states cannot deprive any citizens in regards to their right to life, liberty, and property without the law. • Equal Protection: Prohibits the government from discriminating against any one individual.
What is "content regulation of speech"? Briefly discuss the various forms of "content regulation.
There are four forms of content regulations: overbroad regulation, content-based regulation, content-neutral restriction, and commercial speech. Overbroad regulation is a regulation of speech that is unconstitutional because it regulates more speech than the First Amendment permits. Content-based regulation is based on the substance and on the message being communicated, not how the message is expressed. Content-neutral restriction is on the manner in where or when the expression or message is conveyed. Commercial speech is a form of communication whose primary purpose is to sell a product or a service. This form of speech is protected by the first amendment,but not as protected as noncommercial speech. Truthful commercial speech is protected, but deceptive commercial speech is not.
Discuss the sources of rules and regulations in the global economy.
Trade Regulations are laws enacted by Congress and/or by a state to ensure a free and competitive economy. The U.S. Constitution, through the Commerce Clause, gives Congress exclusive power over trade activities between the states and with foreign countries. These regulations promote free trade and fair competition, and prohibit anti-competitive business practices. Trade regulation is closely associated with antitrust law, and is often referred to as antitrust and trade regulation law. Antitrust law prohibits anti-competitive conduct or business structures, such as price-fixing, bid-rigging, trusts and monopolies.
Discuss constitutional development from the printing press to Thomas Jefferson.
US Constitution-imposes restrictions on the exercise of governmental powers, structures government, allocates power among government and extends civil liberties to the people. It explains the organization of the three branches and how they can be amended Constitutional Development - Gutenberg - Printing Press - Jean Jacque Rousseau - A government is not legitimate unless popular participation - Montesquieu - Structure of Government to accommodate aristocracy and the common person - John Locke - Power of Government is derived from the "rationality of people" - Adam Smith - Capitalism - Articles of Confederation - State Sovereignty is Inoperable (first constitution that made a strong state government and a weak central government - Iroquois Confederation - Federalism - Thomas Jefferson - Public Education (nation had to be literate)
Under critical thinking, what is "professionalism". What are the elements of professionalism? Note GPAA.
• Critical Thinking - the use of information to influence another to take your position on a fact of matter in question (7 steps, last one being "professional matter") - Professional Presentation • Identifying the Audience • Remove Glaring Errors • Appearance • Proof Read
Discuss at least five reasons why relevant, reliable and un-bias evidence is made inadmissible.
• Judicial discretion(Judge's Decision)-evidence may confuse/bias/inflame/prejudice/ or cause unnecessary delay • Exclusionary Rule-evidence seized in violation of Constitution cannot be used (4th, 5th 6th 8th amendments) • Privileged Communication (doctor-patient/ spousal/ attorney-client/ priest penitent) • Statements made during compromise and settlement (during negotiations and settling out of court) • Hearsay-in court statements based on what someone said outside court
Discuss at least three pre-trial written motions to avoid trial.
• Motion to Dismiss - may be made by either party to request the judge dismiss the case for reasons stated in the motion (ex. Failure to state a claim for which relief can be granted) • Motion for Judgement on the Pleadings - may be made by either party and will be granted only if no facts are in dispute and only questions of law are at issue. • Motion for Summary Judgement - may be made by either party and will only be granted if no facts are in dispute and only questions of law are at issue. (Unlike the Motion for Judgement on the Pleadings, the Motion for Summary Judgement may be supported by evidence outside the pleadings such as testimony or other evidence obtained during discovery.)
Discuss at least four rights one acquires in various relationships protected by Substantive Law.
• Rights of people - contract, constitutional, property, and family • When signing a contract, you are obligated to adhere to the agreement, which in turn means you are protected by it as well. • Constitutional rights - allows you to exercise your constitutional rights • State law that provides employees with the right to workers' compensation benefits for on-the-job injuries.
Discuss the laws applicable to the Adversarial Litigation Process. SPR
• Substantive Law- stands for laws that determine the rights of individuals, government, and businesses These laws ensure that individuals are not abused by the government. • Procedural Law: Regulates how you prove the person violated your rights as defined by substantive laws. • Remedial Laws: Describes the manner of enforcing legal rights and claims.