Bus. Law Midterm 1

Grand Jury Indictment

A grand jury is a group of citizens called to decide, after hearing the state's evidence, whether probable cause exists for believing that a crime has been committed and whether a trial ought to be held. An indictment is the formal charge issued by the grand jury against one or more person(s).- Group of people gathered together listening to evidence to decide if there is probable cause

motion

A request for relief from the court prior to the ultimate disposition of a lawsuit. Asking the court to do something

THE COMMERCE CLAUSE Commerce=business

Article I, Section 8 of the U.S. Constitution empowers Congress "[t]o regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes." Congress has power to regulate business among the several states -Since 1824, the Supreme Court has interpreted the Commerce Clause to permit Congress to regulate both - interstate commerce (i.e., commerce between two or more states) and- business between two different states -intrastate commerce (i.e., commerce within a single state), - business amongst a single state - as long as the intrastate commerce at issue "substantially affects" interstate commerce.

The Privileges and Immunities Clause

Article IV of the U.S. Constitution provides that "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." - In other words, a state may not treat citizens of other states differently from citizens of its own state without a substantial reason that is substantially related to the purpose of the rule.

Under the authority of the commerce clause, Congress can pass laws as long as what criteria are met?

As long as the law affects commerce among the states, or interstate commerce, in some way, the regulation is generally constitutional.

the obligation to prove one's assertion/claim

Burden of Proof

Concurrent: more than two courts can have jurisdiction over same issue Exclusive: only one court can have jurisdiction on an issue

Concurrent & Exclusive

personal injury cases. Contingency case: whatever you win, the attorney gets a percentage of it. If you lose the case, you don't lose anything or any money and the attorney doesn't get anything.

Contingency Fee

Bank teller Hugo receives $1,000 from a customer for deposit into the customer's bank account. Instead of placing the money into the customer's account, Hugo puts it into his pocket. Which of the following offenses has he committed?

Embezzlement

Which of the following is true regarding the protection of "fighting words" under the First Amendment?

Fighting words are unprotected speech under the First Amendment.

What does the establishment clause of the First Amendment provide?

Government cannot make a law establishing a religion.

What does the free-exercise clause of the First Amendment provide?

Government cannot make a law prohibiting choice in relation to religion.

A person who illegally accesses or enters another person's or a company's computer system to obtain information or steal money is which of the following?

Hacker

based on property Dispute between parties over property Where property is located creates jurisdiction

In Rem Jurisdiction rem= thing

The purchase or sale of publicly-traded securities on the basis of information that has not been made available to the public (i.e., inside/non public information) in violation of a duty owed to the company whose stock is being traded.

Insider Trading

The process by which a court decides the constitutionality of legislative enactments and actions by the executive branch

Judicial Review

The authority of a court in your situation to hear and decide a specific action and give a legal binding decision.

Jurisdiction

Limited: certain types of matters, under 18 General: any kind of matter

Limited vs. General

Sets forth standards to establish whether there are "sufficient minimum contacts" Nature- what are they doing there Quality - how much money was made Quantity- amount of transactions Fairness - when was it targeting/ marketing to out of state buyers

Long-arm statute

ask the judge to make a final decision/ final resolution of our case based on pleadings (based on complaint and answer). Judgement on pleadings. At Walmart we have a car accident. Both thought had the right of way. Who is right and who is wrong

Motion for Judgment on the Pleadings

If after reviewing the pleadings, the judge determines that the only reasonable decision is in favor of the moving party, the court may grant which of the following?

Motion for judgment on the pleadings

A defendant who argues that commission of a crime was necessary to prevent a more severe crime from occurring is relying upon the defense of _______.

Necessity

False Pretenses

Obtaining goods by deceiving the person from whom they are obtained (e.g., writing a check knowing there are insufficient funds to cover it, buying goods using someone else's credit card number without authorization).

The authority of a court to hear and decide a dispute in the first instance. Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States and the highest courts of many of the states have original jurisdiction over a few types of disputes.

Original Jurisdiction

The authority of a court to hear and decide a dispute involving the particular parties before it. Over the person, usually through: - Residency (the state) - Doing business in the state (business incorporated in state or home office) - Submission to the jurisdiction - Place of the transaction/incident (car accident in particular state and that state has jurisdiction)

Personal Jurisdiction

Establishes jurisdiction Statement of the facts Provides the legal basis Request for damages

Plaintiff's Complaint/Petition

Written documents that inform each of the parties of one another's claims and defenses and specify the issues involved in the lawsuit. Complaint and the answer two parts of pleadings.

Pleadings

A national restaurant chain must pay damages for breach of contract to a cooking oil supplier. What type of law is involved?

Private law and civil law

Probable Cause

Reasonable basis/grounds to believe that a crime either has been committed or is about to be committed. Standard for: search warrant or arrest

A person may not be criminally liable unless he/she (1) a prohibited act must be performed (2) with a specified "state of mind" or "intent" ("mens rea")

Requisites

The court hears a discrimination case in which they are asked to decide whether local anti-discrimination laws protect against a person being fired because they have red hair. The court holds that since Irish people are more likely to have red hair, this is an example of national origin discrimination and anti-discrimination laws should apply. The legislature, following the court ruling, passes a statute saying hair color is not covered by anti-discrimination laws. The legislature's action is an example of:

Revoking common law by new statutory law

The forceful and unlawful taking of personal property is which of the following?

Robbery

If someone has failed to live up to a promise made to a business organization, the business organization should:

Seek a legal remedy within the courts

Which of the following is true regarding federal jurisdiction?

Some cases fall within both federal jurisdiction and state jurisdiction, but the federal court system has exclusive jurisdiction over some cases.

Today, when the First Amendment is concerned, what does the term "political speech" reference with regard to corporations?

Speech that occurs when corporations support political candidates.

Most state supreme courts, like the U.S. Supreme Court, have discretionary review (i.e., they decide whether or not to consider the merits of a particular case). Every state has this, highest court in the country Body of highest decision Second appellate reviewing dealing with issues of law if state has intermediate appeals of court Reviews cases from: us district courts, us courts of appeals, highest courts of the states Review is through Writ of Certiorari Deals with constitutional decisions If writ not granted, lower court decision is final No precedential value

State Supreme Courts

Miko comes to Jamal's law office to ask him about the law in regard to dogs running at large in her neighborhood. Jamal tells Miko that he will research the issue and get back to her. Where should Jamal look first in order to locate applicable law?

State statutes

The authority of a court to hear and decide the particular dispute before it.

Subject Matter Jurisdiction

Petty offense

Subset of misdemeanors, comprised of the least serious criminal offenses, such as traffic violations and jaywalking

the defendant has to have taken actions that were purposefully directed towards the forum state. Such actions may include, among others, selling goods in the state, being incorporated in the state, visiting the state, or bringing property in the state

Sufficient Minimum Contacts

Tells other party they are being sued and by who File answer and where How much time you have to file answer

Summons complaint

Billy witnessed a hit-and-run but is gravely ill with cancer. Xavier, who was injured in the accident, would like to preserve Billy's testimony for trial in case Billy dies before the trial date. What should Xavier do?

Take Billy's deposition.

Theft of Trade Secrets

The Economic Espionage Act of 1996 makes theft of trade secrets, as well as knowingly buying or possessing another's trade secrets without the other's authorization, a federal crime. Penalty to steal trade secrets. Keeping a trade secret.

Cooper sues Company A in state court in South Carolina, where he lives, for negligence alleging personal injury and property damage of $100,000 after a truck driven by an employee of Company A rear-ended his pickup truck. Company A is incorporated in Delaware, has its headquarters in New York, but does a substantial amount of business in South Carolina. Claiming diversity of citizenship, Company A seeks removal to federal district court, but Cooper opposes the motion. Which of the following is true regarding whether the case may be properly removed to federal district court?

The amount in controversy satisfies diversity requirements; and if Company A's nerve center is in a state other than South Carolina, then the case may be properly removed to federal court.

where all litigation (other than that conducted through administrative agencies) begins. Trial courts have either general jurisdiction - meaning that they are empowered to consider any matter before them - or limited jurisdiction - meaning that they are only empowered to hear certain types of cases or cases in which the amount in controversy is above, below, or between, specified bounds.

Trial Courts

The "highest court in the land," the U.S. Supreme Court exercises discretionary review over all federal appellate courts, as well as, in some circumstances, state supreme and appellate courts. Most cases reach the U.S. Supreme Court on writ of certiorari, which requires that at least four justices agree the case merits the Court's review

U.S. Supreme Court

Burglary

Unlawful entry into a building with the intent to commit a felony

Under what circumstances could government agents engage in a search without a search warrant?

When law enforcement officials believe it is likely that the items sought will be removed before they can obtain a warrant.

When can government agents obtain a search warrant?

When they can establish probable cause.

The M'Naghten test

Which of the following allows a defendant to be found not guilty by reason of insanity if he or she did not understand the nature of the act?

Felony

a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death. i.e.:broken bone from a punch

Crime

a wrong against society, defined in a statute and punishable by fines, imprisonment, or (in a rate case) death. Violation of duty owed to society Defined in a statute

Guilty

did it and accepting punishment

Not guilty

didn't do and not accepting punishment

Because of double jeopardy, a person found not guilty of a criminal offense cannot also face a civil charge for the same alleged actions.

false

Criminal law lays out the rights and responsibilities implied in relationships between persons

false

If a potential juror's response to a question indicates bias, an attorney should use a peremptory challenge to remove the juror.

false

Public law controls both disputes between private individuals and their government and disputes involving only private individuals.

false

Statutory law is the supreme law of the land and the foundation for all laws in the United States.

false

The right to privacy is expressly provided for in the Constitution.

false

Under federal statutory law, Internet transactions cannot ever be the basis for a finding of in personam jurisdiction.

false

When courts overturn precedent and create new precedent, they are obeying the principle of stare decisis.

false

Sixth Amendment

guarantees of the rights to speedy trial, trial by jury, public trial, the right to confront witnesses, and counsel (at various stages of criminal proceedings)

Alford's plea

guilty plea by a defendant who claims to be innocent Alford could not prove innocent..knife and dude dies example. He was innocent but there was no way he could prove it

a person who brings a case against another in a court of law

plaintiff

Eighth Amendment

prohibition against excessive bail and fines and cruel and unusual punishment.

Fourth Amendment

protection from unreasonable searches and seizures and requirement that a search or arrest warrant shall issue only upon probable cause; (substantial likelihood that the person either committed a crime or is about to commit a crime)

Fifth Amendment

requirement of due process of law, prohibition against double jeopardy (trying the same person twice for the same criminal offense), and prohibition against self-incrimination (requiring a person to act as a witness against herself);

Substantive Due Process

requires that the interest of the state to be served by any law or other governmental action be weighed against the right of the individuals against whom the law or action is directed. - Takes something away from you

Case law interpretations are law, unless they are revoked later by new statutory law.

true

Embezzlement is distinguished from larceny because the embezzler does not take the property from another and is already in possession of the property.

true

Due process

universal guarantee of due process is in the fifth amendment to the us constitution which provides "no person shall....be deprived of life, liberty, or property, without due process of law

Arson

willfully/intentionally and maliciously burning the property of another person

Larceny

wrongfully taking and carrying away another's personal property with the intent to permanently deprive the owner of the property. Pick pocket

Every state has at least one appellate court, to which a litigant who was unsuccessful at the trial court may appeal for relief

Appellate Courts

The authority of a court to review a prior decision in the same case made by another court.

Appellate Jurisdiction

Misdemeanor

(n.) a crime or offense that is less serious than a felony; any minor misbehavior or misconduct i.e.: red face from a punch

Which of the following is not an element of criminal fraud?

- The representation was meant to deceive - There must be damages - There was reasonable reliance on the false representation - The damages must be $500 or greater***** - False representation of a material fact

Which of the following is a question of fact?

- What elements should an answer contain? - Is speech protected by the First Amendment? - Is premeditation necessary for a first degree murder conviction? - What is necessary for service of process? -Did the vehicle run the traffic light?*********

Entrapment

DEF: defendant induced to commit a crime he was not predisposed to do. Cannot discuss a crime someone is not predisposed to commit. Suggesting a crime. Only by govt. official or law enforcement that is set to be trapped. Setting a trap. RATIONALE: the defendant only committed the crime because of harassment or coercion by a government official. Without such coercion, the crime would never have been committed. Car theft and sexual harassment example.

(a) Responses to each paragraph: admit/deny sufficient info or knowledge (b) Defenses and Affirmative defenses: defenses of liberation to bring action. Self defense= affirmative, admitting with a legal reason. (c) Counterclaims if being sued, also decide to sue the other person. Reasons why they should be paying you Have 45 days to respond Default judgment. If you don't respond the plaintiff gets everything they ask for

Defendant's Answer

a cross examination pre trial that's taken out of court as if you are out of court. Sworn testimony taken out of attorney's offices. Parties and witnesses.

Depositions

Diversity of citizenship jurisdiction Citizens from two different states and amount in controversy is over 75,000 dollars

Diversity Jurisdiction

At trial a defense lawyer states that evidence should not be admitted because it is "fruit of the poisonous tree." Upon which of the following is the attorney relying?

The exclusionary rule.

Which of the following holds that a person may be deemed not guilty by reason of insanity, even if he or she knew that a criminal act was wrong, as long as the defendant was driven to commit the crime from some urge resulting from a mental deficiency the defendant could not resist?

The irresistible impulse test.

Dr. Tanaka was served with a malpractice lawsuit based on allegedly removing the wrong organ. Following discovery, it becomes clear that the plaintiff has no credible evidence against the doctor, and that no reasonable jury could rule in the plaintiff's favor. How should Dr. Tanaka's lawyer proceed?

The lawyer should make a motion for summary judgment.

No contest

accepts punishment, admits no guilt

Procedural Due

before govt can take away life, liberty or property they have to follow a procedure 1. Give you notice 2. Give you an opportunity to be heard by an impartial decision maker.

For a court to be able to provide a ruling in the case, there must be an adverse relationship between the parties, the action must give rise to an actual legal dispute and the courts must have the ability to render the decision that will resolve the dispute and not be a hypothetical situation. This is known as _______.

case or controversy