Business Law Exam #1

all laws create classifications

some people are benefitted by a law and some are burdened

constitutions prevail over statutes

statutes prevail over judicial decisions

attempts to suppress commercial speech...

subject to intermediate scrutiny

if a state action creates classifications based upon sex, gender, or legitimacy...

subject to intermediate scrutiny

what document regulates the lives of citizenry?

the Bill of Rights

what document gives the right to trial by jury?

first arises in the Magna Carta

commerce clause

gives Congress the broadest authority to regulate commerce among the states and business

strict scrutiny

government will almost always lose the case

rational relationship

government will almost always win

intermediate scrutiny

government wins about half

define venue

has the suit been filed in the proper territorial area?

2 reasons president can be impeached

high crimes and misdemeanors

jury in civil matters?

in some states, the plaintiff must request and pay a fee for a jury trial

who is the plaintiff in a criminal prosecution?

the State or Federal government

supremacy clause

the US Constitution and the laws made thereunder are the supreme law of the land

trial judges

preside over trials. they hear testimony and make evidentiary and other legal rulings. trial judges exercise original jurisdiction over disputes and act as protectors of constitutional limitations and guarantees of litigants

define discovery

procedures to uncover facts known or held by the adverse party, ensures all of the evidence is available to both parties

voir dire

questioning a prospective juror looking for bias

examples of suspect classification:

race, religion, alienage, national origin, ethnicity

define personal jurisdiction

the ability of the court to compel the appearance of the parties in court and impose a remedy on the defendant

where state action affects social welfare and/or economic matters...

the action is subject to rational basis scrutiny

US and State Constitutions

the basis of the legal system. they represent supreme law

horizontal division of powers

the branches of government have separate functions and may exercise checks and balances over the other branches

venue is proper where...

the case arose or where the defendant lives

define legal realism

the development of the law is shaped by social and technological forces

international law

the dispute involves the interests or agreements between more than one nation

national law

the dispute involves the law of a particular nation

private law

the dispute is between private individuals

vertical division of powers

the federal government has limited authority to interfere in state matters

public law

the government is involved in the dispute

due process

the government may not deprive a person of life, liberty, or property without due process of law

if a state action creates a suspect classification or infringes a fundamental right...

the government's action is subject to strict scrutiny

define private law

the injured party seeks to recover for an injury from the party causing the injury

if the plaintiff seeks a legal remedy...

the matter was filed in a law court (money)

federal powers:

regulate interstate and international commerce, borrow money on the credit of the US, establish bankruptcy laws, issue patents and copyrights

state powers:

regulate public safety, health, welfare and morals, allow state to regulate business

appellate judges

review trial proceedings for errors of law or facts which prevented a litigant from receiving a fair trial. rarely deal with litigants.

how many justices does it take to decide a case will be heard by the Supreme Court?

4

examples of public law

Constitutional law, Administrative law, and Criminal law

examples of private law

Contracts, Torts, Property

diversity of citizenship jurisdiction requires the plaintiff to claim an injury under federal law or an invasion of a constitutional protection

false

in general, states do not allow quotient verdicts by juries

false

define law

a body of enforceable rules which govern relationships among and between individuals and society

define complaint

a document containing a statement of the plaintiff's reasons for suing the defendant

if the remedy at law was inadequate...

a litigant may seek a remedy in equity

define directed verdict

a motion which asks the court to rule in its favor as a matter of law

who is the plaintiff in a civil prosecution?

a private entity: a person, a group, or a business

define voir dire

a process by which the judge and counsel examine a prospective juror to determine fairness and impartiality

define judgement notwithstanding the verdict

a reasonable jury would not have reached the result based upon the evidence

define natural law

a system of ethics and morals inherent in human nature

in the American legal system, judicial pronouncements have greater authority than legislative acts

false

What does legislation include?

acts and orders of legislative bodies: Congress, state legislatures, city councils

reviewing courts issue opinions which affect society as a whole by...

affecting similar cases in the future

name three votes for the appellate court

affirm, reverse, or remand

define procedural laws

allow institutions to control their internal functions

define remedy

allows a litigant to enforce or to be compensated for an injury to a right or privilege

define long-arm statute

allows the court to exercise jurisdiction over an out-of-state defendant if it comports with notions of fairness and substantial justice. the defendant must have sufficient minimum contacts with the forum state

appeals to Circuit Courts...

are by right

appeals to the Supreme Court...

are by writs of certiorari

active commerce clause

are the goods moving in interstate commerce or is the intrastate activity, in the aggregate, likely to have a substantial impact on interstate commerce?

legislative acts and judicial pronouncements are examples of procedural laws

false

number of Representatives...

based on decennial census

number of Senators...

based on two per state

other legislative acts must...

be consistent with the Constitution or be rendered void

burden of proof in a criminal trial

beyond a reasonable doubt

what do appellate judges study?

briefs, the trial record, and evaluate oral arguments to reach their decisions

remedial statues are...

broadly construed

the government cannot suppress free speech...

but speech may be subject to reasonable time, place, and manner restrictions

how is jurisdiction over the defendant accomplished?

by serving a summons

the doctrine of Separation of Powers allows the federal government unlimited authority to intervene in the affairs of state governments

false

define common law

came from England. rules and analytical methods used by judges became law

define peremptory challenges

can dismiss a juror just because, judge cannot overrule and other side cannot object

define civil law

civil law countries have codified their laws

burden of proof in a civil case

clear and convincing and preponderance of the evidence

defin substantive law

create rights, duties, and privileges consistent with public policy at the time of enactment

the principal of judicial review, the submission of laws and acts to the courts for constitutional examination is mentioned in the Constitution under Article III

false

trial judges must consider the impact of their decisions on society as a whole

false

define answer

defendants response to plaintiff's allegations and any defenses available to the defendant

procedural due process

did the individual have notice of the intended deprivation; was there a hearing before the action was taken; did the individual have an opportunity to appeal an unfavorable disposition of the hearing?

civil law

does public policy consider the wrong as one against an individual

criminal law

does public policy consider the wrong as one against society as a whole

uniform state laws

enacted by the federal government or proposed by the NCCUSL

procedures for equity courts to decide cases:

equity will not suffer a right to exist without a remedy, where there is equal equity law must prevail, those who come into equity must do so with clean hands

English Common Law evolved from the Norman Conquest of 1215 AD

false

Procedural laws create rights and duties but not privileges

false

all states have an intermediate court of appeal between the trial and supreme courts

false

appellate judges actively question litigants before making a decision in a case on appeal

false

types of equitable remedies:

injunctions, decrees, specific performance

equitable remedies:

injunctions, decrees, specific performance, rescission/reformation of a contract, etc.

define privileges and immunities clause

intended to protect nonresidents from discrimination by the states in the nonresident's dealings with residents

define public law

involves cases or controversies involving a legislative body as a party or as the administrator of a legal process

substantive due process

is the deprivation fair to the individual

rational relationship

is the government's action rationally related to a legitimate exercise of governmental authority

strict scrutiny test

is the state's action necessary to accomplish a compelling state interest and is it the least burdensome means to achieve that interest?

intermediate scrutiny

is the state's action substantially related to an important governmental interest?

if a power to be exercised by Congress cannot be found in Article 1 section 8...

it is automatically found unconstitutional

define full faith and credit clause

judicial acts and rights secured in one state are honored in all states

what are three great powers judges have in our system?

judicial review; interpretation of statutes; and creation of law thru precedent

each court must have jurisdiction over two things in order to hear the case

jurisdiction over the subject matter and the litigants

define cross examination

leading questions are permitted. adverse witnesses are subject to cross examination

two types of remedies

legal or equitable

appellate court reviews...

legal questions and factual errors which amount to errors of law

examples of substantive law

legislative acts and judicial pronouncements

name two options for the losing party

move for a new trial, or for a judgment notwithstanding the verdict

attempts to suppress political speech...

must pass strict scrutiny

criminal and taxing laws are...

narrowly construed

define direct examination

no leading questions are allowed. a party subjects its witnesses to direct examination

can standing ever be waived?

no, it is always at issue

define quotient verdicts

non-unanimous verdicts

inherent problem in case law:

not compiled in a coherent fashion, the sheer volume means most lawyers do not know the law at any given time. precedents conflict and may be cited by opposing lawyers in a particular case

opening statements are...

not part of the trial. propaganda.

define stare decisis

once a case has established a precedent, it should be followed in subsequent cases involving the same issues

equal protection

people who are similarly situated must be treated similarly before the law

two components of jurisdiction

personal jurisdiction and subject matter jurisdiction

define legal positivism

posits the only rights we have come from the state

define appellant

the party bringing the appeal

define appellee

the party responding to the appeal

if a legal remedy was considered inadequate...

the plaintiff sought an equitable remedy

define judicial review

the power of the judiciary to review the actions of the other branches and to set them aside if in violation of the Constitution

define jurisdiction

the power to hear the case and grant a remedy

a bill is not a law until...

the president signs it

which state's laws apply when a transaction involves more than one state?

the substantive law of the appropriate state may be used in a foreign jurisdiction, but the forum may use its procedural laws.

if a criminal jury is less than twelve jurors...

the verdict must be unanimous

what is the function of the jury?

to decide which party has met its burden of proof on a question of fact

why do legal systems evolve?

to encourage and promote stability and order

define standing

to maintain a law suit, the plaintiff must have a stake in the outcome

why do courts exist?

to provide resolution to disputes which cannot be settled by an agreement between the parties

Preemption Doctrine

to the extent the two regulations overlap, the federal law applies

discovery is a process for uncovering facts held by the adverse party

true

laws are enforceable rules protecting one's protected interests

true

private law allows an injured party to seek recovery directly from the party alleged to have caused the injury

true

purposeful injection of a business into the forum state by television advertising can serve as sufficient minimum contacts for long-arm jurisdiction

true

state and federal constitutions create governments of three co-equal branches with separate functions

true

state trial courts are courts of general subject matter jurisdiction

true

the admissibility of evidence at trial is a matter of law in the control of the judge

true

the jury decides which party has met its burden of proof on questions of fact

true

under early common law, the laws and doctrines were rules and methods of analysis used by courts to resolve disputes brought before them

true

common law courts are bound by stare decisis...

unless a court decides a precedent should no longer be followed

dormant commerce clause

used to prevent one state from discriminating against business emanating from another state

diversity of citizenship exists...

where all of the plaintiffs reside in states different from those of all the defendants

what do trial judges study?

witnesses and use their experience to prepare for their decisions