Mgmt 230 Exam 1
What is "critical thinking?" Discuss the various steps applied for critical thinking. Note: SGARROOP-gara
"Critical Thinking" is the use of info to persuade one's opinion and form one controversy into a question. The steps for critical thinking would be 1. select a law/topic 2. gather your info; such as where are you going to get it from 3. info that is relevant to your topic 4. authentication; who wrote it? reliable info?; you want to remove your personal bias 5. remove basis evaluation 6. organization- create an outline 7. professional presentation; identify audience, removing glaring errors such as spelling errors, run on sentences/paragraphs 8. proofread 9. first and last impression
What is "Stare Decisis?" Discuss the rationale for the "prominent role of the court decisions" in the application of shaping the law.
"Stare Decisis" is Latin for "to stand by the decision," also known as the rule of precedence. The role of Stare Decisis is to provide consistency in application of the law, so that there are not contradiction in decisions. The court must follow prior decisions in similar cases. Lower courts must follow higher court decisions if the lower court is within jurisdiction of the higher courts.
Discuss at least four rights one acquires in various relationships protected by Substantive Law.
- A person accused of a crime is protected by the 4th, 5th, and 6th amendments as a part of a body of criminal procedural law. - Regulatory laws- regulate how individuals and businesses conduct themselves in certain situations. - Administrative laws- laws regulating how bureaucrats exercise powers - Entitlement laws- once you meet minimum qualifications, you are entitled to that benefit
What is the purpose of Article 1, section 8? Discuss at least four provisions of Article 1, section 8.
Article 1, section 8 of the constitution give congress the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provided for the common defense and welfare of the country. But their duties must be uniform throughout the country. Congress controls the money. The most important would have to be the taxing and spending, interstate commerce, the power to coin money, the right to set up a system of copyrights to protect inventors, authors, etc.
Discuss the Articles and Amendments that apply to the Executive Branch in the U.S. Constitution.
Article II, sections 1-4 spell out the duties and jobs of the president, their powers, and how they are to work together to make good decisions for the country.
Discuss at least five reasons why relevant, reliable and un-bias evidence is made inadmissible.
1. Relevant; the evidence must relate in time and substance to the controversy in question. 2. Reliable; the evidence must be trustworthy 3. Evidence must be in original state 4. Evidence cannot have been tampered, altered or misleading 5. Evidence must be unbiased; the person presenting evidence must not have personal stake in the outcome
In general, discuss the various Amendments that apply to "voting" in the US Constitution.
15th Amendment- allowed males of all races to vote. 19th Amendment- allowed women the right to vote. 23rd Amendment- limited voting rights to the residents of Washington D.C. 24th Amendment- banned poll taxes used to discourage poor and minorities from voting 26th Amendment- lowered voting age to 18
List the federal appellate districts by circuit and city. Note: 9th San Francisco, 1st Boston.
1st: Boston, Massachusetts 2nd: New York, New York 3rd: Philadelphia, Pennsylvania 4th: Richmond, Virginia 5ht: Houston, Texas 6th: Cincinnati, Ohio 7th: Chicago, Illinois 8th: St. Paul, Minnesota 9th: San Francisco, California 10th: Denver, Colorado 11th: Atlanta, Georgia District of Columbia (12th): Washington, DC Court of Appeals for the Federal Circuit (13th): Washington DC
Discuss the differences between law, ethics and morality.
A law is a culture which could be good or bad with a right or wrong conduct. As a culture, the law is has rational logical processes to meet temporary needs of the people. Ethics are individual standards that are good or bad with right or wrong conduct. Morality is a social standard that are good or bad with right or wrong conduct.
What is a "legal system"? Discuss the common characteristics of a legal system
A legal System is an institution within government designed to apply the law as enacted by the other branches of government and maintain peaceful resolution of dispute. Common Characteristics of a Legal System are: 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.
What is a "remedy". Discuss the differences between remedies at law and remedies in equity.
A remedy is the way a right is enforced by court when another person is hurt in any way. In English common law, there were courts of law and courts of equity. The courts of law were the main place to redress for wrongs. Courts of equity were the last resort. Legal remedies include monetary compensation. Equitable are related to fairness.
What is an "immutable characteristic?" List the various forms of protectable immutable characteristics.
An immutable characteristic is any attribute that is seen as being unchangeable, entrenched, and innate. You were born with them and have no control over them. Examples: Race, color, religion, DNA, things you were born into, age disability, gender, etc.
In terms of "indirect democracy", discuss the process by which an "idea" is converted into a code.
An indirect democracy allows voters to choose delegates to create the laws of government on their behalf (representative democracy). An idea is proposed to a small group of officials, and that group of officials get together and vote on the idea. If it passes, they write a code.
Discuss the appropriate laws applicable to marketing
Anti Trust Laws: is a collection of federal and state government laws, which regulates the conduct and organization of business corporations, generally to promote fair competition for the benefit of consumers. Contract Law: an agreement creating and defining the obligations between two or more parties Regulatory Laws: procedures created by administrative agencies involving rules and regulations, applications, licenses, permits, available info, hearing, appeals and decision making. Product Liability: the legal liability of manufacturers, sellers, and lessoers of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods. Environmental Law: protecting the environment from harmful actions of business-affiliated works. Tort Law: to provide remedies for the invasion of various protected interests.
Discuss the appellate process from state superior court to the US Supreme Court.
Appellant has to show that trial court made a legal error that affected the decision in the case. Court of appeals makes decision based on record of case established by trial court. Appeals decided by panels of three judges working together. Appellant presents legal arguments to panel, in writing, in a "brief." Each side is given time to present arguments to the court. A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a "writ of certiorari," but the Supreme Court does not have to grant review.
Define "civil liberties." Discuss the various amendments associated with civil liberties.
Civil liberties are personal guarantees and freedoms that the government cannot abridge wither by law or judicial interpretation. 1st amendment- is a good example, it grants you freedom of speech, press, religion, and etc. 5th and 6th amendments- give us the right to fair trial no matter the crime. 4th amendment- We are granted the right to privacy. 8th amendment- The right to not be cruelly or unusually punished. 14th amendment- gives us the right to be naturalized citizens. 15th amendment- gives us the right to vote no matter the race 19th amendment- gives us the right to votes no matter the sex of a person. 26th amendment- gives us the right to vote at the age of 18 or higher.
Discuss the difference between the civil and criminal cases. Note: discuss at least 4 differences
Civil: Preponderance of evidence, Private dispute, No self incrimination, Majority verdict, No counsel provided by state, Minimal rules of exclusion Criminal: Beyond a reasonable doubt, Public dispute, Self incrimination, Unanimous verdict, Right to counsel, Maximum ruled of exclusion
Discuss the various forms of codification of a law. IDT
Codification is the creation of codes, which are compilations of statutes, rules, and regulations that inform the public on acceptable or unacceptable behavior. One form of codification is positive law which is pretty much laws that congress made already. Another form is non-positive law which are a collection of laws or codes that were formed into laws through incidents.
What is "constitutional law"? What are the basic concepts of the US Constitution. Note: Morality, Structure, Division, Regulation, Civil Liberties and Balancing Concept.
Constitutional law are laws that outline the jobs of the three main branches of government. The 18th and 21st amendments pertain to morality- they prohibited alcohol. Structure of the government was separated into three sections- congress, the executive, and judiciary. This was done to allow for a way for each branch to have some power over the others, so that no branch could control too much.
Discuss the appropriate laws applicable to research and development.
Contract Law: an agreement creating and defining the obligations between two or more parties Intellectual Property Law: property resulting from intellectual, creative process. Product Liability: the legal liability of manufacturers, sellers, and lessoers of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods. Tort Law: to provide remedies for the invasion of various protected interests. Environmental Law: protecting the environment from harmful actions of business-affiliated works. Regulatory Laws: procedures created by administrative agencies involving rules and regulations, applications, licenses, permits, available info, hearing, appeals and decision making.
In general, discuss the legal theories that impact decision-making in the workplace..
DILAT Deductive Legal Reasoning- general to specific; based on premises that are assumed to be true Inductive Legal Reasoning- Specific to general; example- when investigating a crime scene; good, sufficient evidence is found Linear Legal Reasoning- interconnection of relevant facts that lead to a conclusion; a lot of times the way evidence is in crime cases; indirect evidence tied together Reasoning by Analogy- no law or code can be used to decide a case, use a related law Traditional Legal Reasoning- (how to file a motion in court: lay out the facts, appropriate law); assumes the premises are correct
Discuss the various forms of legal reasoning. DILAT
Deductive reasoning- assumes premises are true Inductive reasoning- based on hard evidence Relevant facts Analogy reasoning- uses analogies to make decisions Traditional reasoning
Compare and contrast linear legal reason, deductive legal reasoning and reasoning by analogy.
Deductive reasoning: is sometimes called syllogistic reasoning because it employs a syllogism—a logical relationship involving a major premise, a minor premise, and a conclusion. For example, consider the example given earlier, in which the plaintiff alleged that the defendant committed assault by threatening her while she was sleeping. The judge might point out that "under the common law of torts, an individual must be aware of a threat of danger for the threat to constitute civil assault" (major premise); "the plaintiff in this case was unaware of the threat at the time it occurred" (minor premise); and "therefore, the circumstances do not amount to a civil assault" (conclusion). Linear Reasoning: second important form of commonly employed legal reasoning might be thought of as "linear" reasoning, because it proceeds from one point to another, with the final point being the conclusion. An analogy will help make this form of reasoning clear. Imagine a knotted rope, with each knot tying together separate pieces of rope to form a tight length. As a whole, the rope represents a linear progression of thought logically connecting various points, with the last point, or knot, representing the conclusion. For example, suppose that a tenant in an apartment building sues the landlord for damages for an injury resulting from an allegedly dimly lit stairway. The landlord, who was on the premises the evening the injury occurred, testifies that none of the other nine tenants who used the stairway that night complained about the lights. On the basis of this reasoning, the court concludes that the tenant is not entitled to compensation on the basis of the stairway's lighting. Reasoning by Analogy: this form of reasoning that judges' use in deciding cases is reasoning by analogy. To reason by analogy is to compare the facts in the case at hand to the facts in other cases and, to the extent that the patterns are similar, to apply the same rule to the case at hand. To the extent that the facts are unique, or "distinguishable," different rules may apply.
In general, discuss the elements of "LAW" Indirect democracy- where citizens elect other citizens to make the laws.
Direct democracy- citizens vote laws without going through the legislative Referendum- citizens can stop a law from going into effect Initiative- where citizens propose a law. Bypass the branches and pass their own laws. (Most marijuana laws are initiative laws)
Discuss the appropriate laws applicable to accounting and finance.
Due to accounting and finance having to count and find money they do have appropriate laws that are applicable to them. These laws are: (1) tax laws; (2) bankruptcy laws; (3) consumer protection laws; (4) investor laws; (5) corporate laws; (6) business ownership laws.
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. Voting/ Enfranchisement; The U.S. Constitution imposes restrictions on the exercise of the governmental powers, structures Government, allocates power among Government and extends civil liberties to the people
Discuss at least four reasons why the court will apply equitable remedies. Note: UMIRU
Equitable remedies - money insufficient to compensate injured party. The specific performance is ordering the parties to perform the contract only in cases involving the sale of land. There is the junction of court order prohibiting someone from doing something. The temporary restraining order, preliminary injunction, and the permanent injunction. 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.
What is evidence law? What criteria must be met for evidence to be admissible.
Evidence law is when it must be proven that a person in trial violated the law. Evidence are writing statements physical objects used to prove the fact of the matter in issue. Evidence must be relevant, reliable, and unbiased.
Discuss "FILAC" in terms of briefing a case.
F Facts: the basic building blocks of the case; provide the context in which the legal issue is to be resolved. I Issue: the issue is the question that caused the lawyers/ clients to enter the legal system; the reason they are in court L Law: in reaching a decision the court must apply the law. The judges can't offer just any reasoning; they must look back at previous decisions A Analyze: the application of the facts to the law in deciding the case including rationale decision, review of cases, past cases. C Conclusion: who won the case
Discuss the differences between civil law and criminal law in terms of the constitution, mental state of mind, right to counsel and the proof standards.
Four differences between civil and criminal cases are: the party who brings the suit, the wrongful act committed, the burden of proof, and reaching a verdict. These two cases differ in the very beginning applying to who brings the case to court. In a civil case the person who was wronged brings the suit to the courts. In a criminal case the state brings up the case. For the wrongful act committed, in a civil case someone has been wronged or been caused harm. In a criminal case someone has committed a wrong against society as a whole. The burden of proof is a big difference in these cases. In a civil case, the plaintiff must show the court through evidence that it is more than likely that the accused are to be found at fault. In a criminal case, the state must try and prove to the court that the accused is guilty beyond a reasonable doubt. When it comes to reaching a verdict, both cases use a jury to resolve the conflict. In a civil case, typically only three-quarters of the jury need to vote similarly to find a verdict. In a criminal case, it must be a unanimous decision (everyone must agree) for the defendant to be found guilty.
Briefly discuss the functional areas of a business and the appropriate laws for each functional area of business.
Functional areas of a business are management, supply chain management, marketing, research and development, accounting and finance, and human resources. Management- contract, corporate, regulatory, securities, and Sarbanes Oxley Act Laws. Supply Chain Management- contract, environmental, product, tort, and regulatory law. Marketing- antitrust, contract, regulatory, product, environmental, tort law. Research & Development- contract, intellectual property, product liability, tort, environmental, regulatory. Accounting & Finance- Contract, banking, bankruptcy, credit, securities, regulatory, Sarbanes. Human Resources- Contract, tax, tax contribution, discharge, immigration, discrimination, privacy, wages, benefits, union, work place safety.
Discuss at least four reasons why admissible evidence could be inadmissible to achieve some other purpose than proving a fact of matter in court.
It could be irrelevant, unreliable, biased, or unconstitutional
Discuss the various provisions in the US Constitution that applies to the "presidency".
I'll start with the provisions in the constitution for the election of the President and Vice-President. In Article II Section I, the Constitution states that the executive branch should be vested to the President for a term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: Each state shall appoint a number of electors, equal to the number of senators and Representatives to which the State may be entitled in the Congress. No Senator, Representative, or person holding an office of trust or profit of the United States, shall be appointed as an elector. The 23rd Amendment also states that the number of electors of President and Vice President equals the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they should be considered to be electors appointed by the state. The Twelfth Amendment explains that the electors meet and vote on the President and the Vice President. The 20th Amendment states that the President and Vice Presidents terms will end at noon on January 20th, and the terms of the successors will begin. The president also gets appointed powers being the lead of the executive branch. He is the commander in chief, chief of state, and chief officer. He has a role in law enforcement, budgeting, making treaties, vetoing bills, foreign affairs, as well as other things. All are balance by other branches being able to turn over certain decisions if proposed and gone through as stated in the Constitution.
Briefly discuss the Articles of the US Constitution.
In 1942 the American Law Institute and National Conference of Commissioners on Uniform State Laws headed by Karl N. Llewellyn began to draft a national law on commerce which was then adopted in 1952 with uniform commercial code. The Articles: (1) Article 1: general provisions - purpose, application and definition; (2) Article 2: sale of goods - merchant; (3) Article 2A: lease of goods - merchant; (4) Article 3: Negotiable instruments - substitute for cash; (5) Article 4: Banks and Deposits; (6) Article 4A: Transfers of funds; (7) Article 5: Letters of credit; (8) Article 6: Bulk of transfers; (9) Article 7: Documents of title; (10) Article 8: Investment of securities; (11) Article 9: Secured transaction.
Discuss the importance of the "role of court decisions" in the common law legal systems in terms of diversity, interpretation, judicial review, respecting local customs and traditions, precedence and reasoning by analogy.
In many cases the legislature will codify court decisions. It accommodates diversity, preserves local customs because the law is made around customs and made to be adaptable, and many court decisions precede statutes.
Discuss civil procedure from pretrial motions of appeal.
In the pretrial motions, several things take place. After the discovery the judges and lawyers get together to try and solve the case without going to trial. Then, if a decision was not come upon, the judge will set a date for the actual trial. After the date is set, the trial commences and once the trial is over, the losing party can request an appeal for another trial.
Discuss the various forms of "respecting the individual liberties" when interacting with individuals in the workplace.
Individual rights are those meant to protect us against the masses. They are the ten amendments, and protected in the workplace by the constitution, and executive laws are made to protect those laws.
What distinguishes "international law" from "domestic law?" What are the sources of international rules and regulations?
International law deals with other countries in the form of treaties and customs, while domestic law governs individuals in the U.S. in the form of legislatures and customs. There is no common executive in international law, so they have to be honest in business. Domestic law involves all three branches of government and can be punished. Sources are treaties, customs, general principles, and judicial decisions.
Discuss the functions of law in a legal system.
Laws are in place to regulate and control conduct so that government, individuals, and business will act in a predictable manner given a social political or economic stimuli. As cultures change, so do laws. Laws go through a process before they can become laws.
Compare and contrast legal positivism, natural law, historical legal theory and legal realism.
Legal positivism is a school of jurisprudence in which beliefs are that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by the government. Natural Law is the belief that there are an unwritten body of universal moral principles that underlie the ethical and legal norms in human nature. Legal Realism is law that is a product of the composition of those who are making the law. Historical Legal Theory are laws that are made through events in history. They are different in many ways, but what makes them similar is that in some way human morality will affect the making of laws in on way or another.
Discuss the various provisions that apply to "civil liberties" in the US Constitution.
Most of the civil liberties can be found in the Bill of Rights in the Constitution. But there are some found in the constitution itself such as the writ of habeas corpus and trial by jury in criminal cases (Article 3, Section 2). Also, forbidding bills of attainder and ex post facto laws (Article 1, section 9). In the Bill of Rights, the First Amendment guarantees rights of conscience, such as freedom of religion, speech, and the press, and the right of peaceful assembly and petition. Other freedoms in the Bill of Rights includes protection of people accused for crimes such as protection against unreasonable search and seizure, self-incrimination, double jeopardy, and excessive bail. It guarantees a speedy public trial by a local, impartial jury. Rights of private property are also guaranteed. Some civil liberties such as the right to bear arms, the Second Amendment, and prohibition of cruel and unusual punishment, the Eighth Amendment, are under constant controversy and debate. All of the civil rights in the constitution are laid out to protect the citizens a part of the United States from total government authority and rule.
What is "pleadings?" Discuss the contents of a complaint. JPLSRS
Pleadings are the beginning stages of a lawsuit in which the people who are involved submit their claims and defenses. A plead contains all the files from the lawsuit, the motion or hearing, petition, complaint, petition answer, demurrer, and declaration and memorandum of points and authorities. The contents of a complaint contains a statement of the cause of action and the issues that happened or are happening in the controversy.
What is "Procedural Due Process?" Briefly discuss the steps applicable to Procedural Due Process.
Procedural Due Process: the requirement that govt. decision to take away a persons life, liberty, and property must be made fairly. Fair procedures must be used in coming to this decision. The govt. must provide the defendant with a fair opportunity to object the decision to the judge, procedural due process ensures that everyone receives notice in the same manner (i.e. in person) and that everyone has the same right to appeal. Procedural Due Process: Notice Discovery Impartial Dicision-maker Hearing Confrontation (Impeachment) Opportunity to Be Heard Attorney Decision based on Information Provided at Hearing Written Decision Appeal
Discuss the 4 types of procedural law.
Procedural Law- pertains to the law that controls the way a court proceeds in an other words, procedural law dictates what will happen in court. Criminal Laws- dealing with punishment for offense against the public. Private Law- deals with the relations between private persons whether individuals or corporate bodies. Administrative Law- regulating how bureaucrats exercise their powers. The rules are designed to ensure a fair and consistent application of due process.
What is public law? List and discuss the various types of public law. CCCARE
Public Law- involves disputes between private individuals or groups and their government. For example if a computer store dumps waste behind its building in violation of local, state, or federal environmental regulation, the resulting dispute focuses on public law. C Constitutional Law: the general limits and powers of a government as interpreted from its written constitutions. C Criminal Law: a classification of law involving the rights and responsibilities an individual has with respect to the public as a whole. C Civil Law: the body of laws that govern rights and responsibilities either between persons or between persons and their government. A Administrative Law: the collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions and statutes. R Regulatory Law: regulatory law is part of administrative law and consists of the rules and regulations set out by administrative agencies. E Entitlement Law: is the guarantee of access to benefits based on established rights or by legislation.
Discuss the various forms of "public law".
Public law is the part of law that governs relationships between people and the government and other relationships between people which are directly connected to society. The different forms of public law consist of constitutional law, administrative law, and criminal law. I'll start by discussing constitutional law. Constitutional law sets the foundations of the state. It establishes the supremacy of law in the functioning of the state. It also sets out the form of government, how its different branches work, how they are elected and appointed, and lastly the divisions of powers and responsibilities between them. It also describes what the basic human rights are for every person. Overall, it sets fundamental "do"s and "don't"s for any government. Administrative law defines the powers of administrative agencies and regulates bureatic managerial procedures. This section of law regulates things such as international trade, manufacturing, pollution, and taxation. These laws are usually enforced by the executive branch. Criminal law involves state imposing sanctions for defined crimes committed by individuals or businesses, so that a society can maintain peace and tranquility.
Briefly discuss the various forms of criminal remedies.
Remedies at law are an award of money damages that will compensate the injured party for his losses. Remedies at law consist of compensatory damages, nominal damages, liquidated damages, and punitive damages. Compensatory damages: when the court must compensate the injured person for the provable losses he has suffered as well as for the provable gains that he has been prevented from realizing by breach of contract. Nominal damages: very small awards that are given when a technical breach of contract has occurred without causing any actual or provable economic loss. Liquidated damages: when a contract states that specific sum shall be recoverable if the contract is breached. Punitive damages: damages awarded in addition to the compensatory remedy that are designed to punish a defendant for particularly reprehensible behavior and to deter the defendant and others from committing similar behavior in the future. Remedies in equity come from cases in which money damages alone are not adequate t fully compensate for a party's injuries. Remedies in equity are as follows: Specific performance- is an equitable remedy whereby the court orders the breaching party to perform his contractual duties as promised. Injunction- a court order requiring someone to do or not do something.
In general, discuss the various types of legal systems around the world. Note: Distinguish each by source of law.
Roman Empire Constantine-Constantinople-Istanbul (Ottoman Empire) Justinian-Hippodrome-Theodora Renaissance-rule of law-rule of reason Eliminated Church India Religions-Sikhism, Buddhism, Jainism and Hinduism, Islamic Caste-Varnas-Laws of Manu-Varna, Dalits (untouchable), Brahmins (priestly), Kshatriya (warrior), Shudras (-servants and artisans), Vaiya (merchants) Hinduism-Scrutis (secred text)-Treatise-sastras-Dharma-decision be made on basis of conscience.-Dharma along with local custom is basis of Hindu commercial law. English when English replaced the Mongols they decided to avoid unrest and apply Hindu principles. English courts to apply and understand Sastras, used local Hindu experts called pandits-hindu Legislate-Hinduism in inheritance and wills, eventually applied in family and marriage, but British law in commercial matters After independence continued to standardize Hindu law-abolished the caste system-developing common law tradition Islamic Law Abraham, Ismeal, David, Moses, Jesus and Adam Quran (westerners Koran)-framework Sunna--life of Mohammed Ijima--traditional Islamic Law Ihtihad-scholar permitted when no precedent Qiyas-parallel old law and applied to modern situation Al-Istihsan-free to have conscience and do what is best in private or public interest Urf-long standing local customs and practices have force of law Commercial Law Intellectual Property Gambling Contracts Interest Pre contractual Liability Performance of Contract Restriction on Contracts No unfair advantages Unforseeable Excuse Government Suit No Unjust Enrichment
Discuss constitutional development from printing press to Thomas Jefferson.
Started from Guttenberg and printing press to Rousseau. Montesquieu develops a gov. structure that accommodates aristocracy and common person. Locke says the power of govt. comes from rationality of the people. Adam Smith develops capitalism, and Jefferson stresses public education.
What is "Substantive Due Process"? Discuss the various methods used to challenge an act of government. IVOCR
Substantive Due Process: a category due process that requires that government statutes, ordinances, regulations, or other laws be clear on their face and not overly broad in scope. The test of whether substantive due process is met is whether a "reasonable person" could understand the law to be able to comply with it. Laws that do not meet this test are declared void for vagueness. Most government laws, although often written in legalese, are considered not to violate substantive due process.
Discuss the laws applicable to the Adversarial Litigation Process. SPR
Substantive law: Domestic, government, economic and civil relationships. Procedural law: Proving how individual rights have been violated as substantive laws. Evidence-writings (WHO made the writings, were they relevant and reliable?) Civil procedure: - Case insinuated by a person writing the complaint. - Identify the parties - Jurisdiction over the parties and subject matter - Must state the applicable law Must allege facts of how the person violated the law - Ask for a remedy, compensation damages, or equitable remedies. Sign under penalty of perjury Must be personally serviced to the defendant - Remedial law: Remedial Law is that which prescribes the manner of enforcing Legal rights and claims. - Civil: Doesn't need to be anonymous Criminal: Must be anonymous - Plaintiff presents the case with an opening statement and then the defendant does. - Plaintiff cross-examines witnesses and then the defendant. - Jury deliberates the case - Jury returns with a verdict, however sometimes the jury does not apply the law right. JNWV: Judgment not withstanding verdict New Trial Motion: Something wrong in the first trial, then a new trial can happen.
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. 1. Immutable Characteristics 2. History of Discrimination 3. Minority Status 4. Inferiority Complex 5. Economic Inferiority These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action.
What is "Due Process?" Discuss the key elements of "Due Process." Note- ACU
The Due Process comes from the 5th (applies to the Federal government) and the 14th amendment (applies to the states). Both provide that the government shall not take a person's life, liberty, or property without due process of law. Due Process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action. It is the requirement that fair procedures are used before a member of society can be subject to punishment or have some burden imposed on him/her. The key elements of Due Process include: 1. Non biased tribunal 2. Notice of proposed action and grounds asserted for it 3. Freedom calling witness 4. Right to know opposing evidence 5. Freedom of having decision based exclusively on evidence presented 6. Right to counsel 7. Record making 8. Statement of reasons availability 9. Attendance of public 10. Judicial review
Discuss the various provisions of the Fifth Amendment of the US Constitution.
The Fifth Amendment creates a number of rights relevant to both criminal and civil legal proceedings. In criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids "double jeopardy" and protects against self-incrimination. The Double Jeopardy Clause prohibits anyone from being prosecuted twice for the same crime. Self-incri mination can occur through interrogation or may be made voluntarily. The Fifth Amendment protects a person from being compelled to expose themselves. The Fifth Amendment also states that no one shall be deprived of life, liberty, or property without due process law. It also requires the government to compensate citizens when it takes private property for public use.
What is the purpose of the 14th Amendment? Discuss the various provisions in section 1 of the 14th Amendment.
The Fourteenth Amendment is a very important amendment that deals with equal rights for all citizens. It ensures no racial discrimination, no gender discrimination, no racial quotas in education, reproductive rights, and election recounts. Without this amendment there could be a lot of unfair acts still going on. Section 1 explains that all persons born or naturalized in the United States are citizens of the United States no matter how they look or are. No citizen should be deprived of life, liberty, or property, without due process of law. No person within jurisdiction can be denied the equal protection of the laws.
Discuss the various provisions of the Sixth Amendment of the US Constitution.
The Sixth Amendment guarantees the rights of criminal defendants to a speedy and public trial. The amendment also calls for an impartial jury within the state where the crime was committed. It also gives them the right to a lawyer and the right to know who the accusers are and the nature of the charges and evidence against you. The defendants have the right to gather witnesses in their favor as well. The sixth amendment overall ensures that the rights of defendants in criminal cases are protected in case they are innocent and accused and ensures an overall fair trial to a rightly accused criminal as well.
Briefly discuss the Amendments of the Bill of Rights.
The amendments of the Bill of Rights, are the first ten amendments of the Constitution. All of the Bill of Rights amendments are mainly individual rights given to the people, such as freedom of religion, speech, press, protest, and petition which is the first amendment. Or the right to bear arms as it states in the second amendment and the right to not have your property searched without a warrant which is the fourth amendment. The fifth amendment gives us the right to not be tried for the same offense twice, or deprived of life, liberty, or property without due process, and having the ability to be put on trial for capital crimes. The sixth amendment gives the right to be publicly tried for all crimes in front of an impartial jury. The eighth amendment is not having excessive bail or fines imposed, and the right to not be cruelly or unusually punished. The tenth amendment grants the states the powers not given to the federal government.
Discuss the appropriate laws applicable to supply chain management.
The appropriate laws applicable to supply chain management are contract law, environmental law, product liability, tort law and regulatory law. The most important of these laws in regard to supply chain management are the environmental laws. SCM deals with a lot of toxic chemicals in creating the products and also in the transportation of products, so environmental laws are most prominent.
What is "civil procedure?" Discuss the process from pleadings to Appeal.
The civil procedure starts with the pleadings, which is a written notification to the court as to the controversy in question. Within the pleadings can include, a complaint, filed by the plaintiff. This complaint must specify the court which has original jurisdiction the parties involved- defendant(s), the jurisdiction-the power over the individual or business, the governing law, the alleged facts of how the defendant violated said laws, request of remedies and the plaintiff must sign under "penalty of perjury." Also included in the pleadings is the answer, which includes: the defendant answering by denying the allegations in complaint within 30 days or plaintiff wins by default.
What is the Common Law Legal System? What is the primary source of law used in deciding cases in the Common Law Legal System? Why do "court decisions" play a prominent role in applying statutes in deciding cases? Hint- diversity, cases before statutes and interpretation.
The common law legal system is where a judge made the law. It's the sum total of all the cases decided by appellate courts. The stare decisis - lets past decisions stand. The law is precedent and provides predictability and flexibility. The predictability lets people know what the law is while flexibility allows the law to respond to new problems. The common law is where one person has not duty to control the conduct of in another with the exception when there is a special relationship.
Discuss the Legal Aspects of the Constitution in terms of structure of government, voting/enfranchisement, and civil liberties.
The constitution structures out government in a way that all the power is divided among three branches of government and the people. It determined who makes the laws, applies the laws, and enforces the laws. The legislative branch makes the law which is congress and the senate. Then the executive branch enforces the laws which is the branch with the president and vice president. Last the Judiciary branch applies or interprets the law and this branch contains all the courts and judges. For enfranchisement and voting the legal aspects of it is that, everyone who is a citizen and is over the age of 18 has the right to vote for any election, which is granted to us through the 15th, 19th, 24th, and the 26th amendments. The 24th amendment eliminates having to pay poll tax to vote. The 14th amendment makes anyone born in the U.S. a citizen and given the right to vote when of age. For civil liberties we are able to express ourselves fully and civilly by the 1st amendment. We are also given a right to privacy, trial if accused of a crime, voting, and it abolishes slavery.
Briefly discuss the elements of traditional legal reasoning. Note:F (I)LRCSP
The elements of traditional legal reasoning are introduction, law, rationale, case analysis, social impact, and personal opinion.
Discuss the various test to determine if there is an unreasonable infringement on an individual constitutional rights.
The first test I will explain is the compelling interest test. The government must show a compelling interest and the means to achieve that compelling must be narrowly tailored so that there are no other viable alternatives. This mostly applies to speech and religion. The second test is the substantial relations test which says that the government must show an important interest and means to achieve that important interest must be substantially related. This test mostly applies to discrimination cases or gender, age, disability, and other forms of discrimination. The last test is the rational basis test which makes the government show a legitimate interest and the means to achieve that legitimate interest must be rationally related. This mainly applies to property and economic issues within the society.
What is the function of Article 1, section 9. Discuss at least four provisions of Article 1, section 9.
The function of Article 1, section is to limit the power of congress. Some provisions are that congress cannot pass a bill of attainder or ex post facto law, no tax or duty shall be laid on articles exported from any other state, no title of nobility shall be granted by the U.S., and habeas corpus shall not be suspended, except in cases of rebellion or invasion of public safety.
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 purpose was to specify what Congress could not do and to protect the rights of its people. The 2nd, 3rd, 5th, and 7th amendments are not included in the Due Process Clause.
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". LPD
The primary source of law in the Common Law Legal System comes from court decisions. Common Law is judge-made law, formed from judges who have decided legal controversies. Court decisions came to play a prominent role in the Common Law Legal System because they helped set the foundation for "precedents" and new laws for new cases. When judges made decisions concerning cases, their decisions became part of applying how the law is used and hence afterward the decision could be used for later cases that have similar traits. These decisions created "precedents" for future cases and must be used by judges within their jurisdiction. Also when new cases would arise, the judge would make a decision regarding the case and that decision would become a new precedent for future cases, so the many judge's decisions set up the guidebook into which judges would constantly look up in deciding a case. Rulings became laws and were necessary to be used on how cases in Common Law Legal Systems are to be resolved.
Discuss the provisions of Section 1 of the 14th amendment.
The purpose of the 14th amendment was to place restrictions on state governments. It states that all persons born or naturalized in the U.S. are citizens of the U.S. and the state they reside, and subject to the specific jurisdiction of the U.S. and state. All citizens have the right to: travel, access courts, sale and trade in property, and have a profession and/or be employed. It limits the power of the states by not allowing them to take away any citizens privileges or immunities, or deprive any citizen of life, liberty, or property, without due process of law. The state also can't deny any person within its jurisdiction the equal protection of the laws.
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"?
The question of whether the clause has been violated arises when a state grants a particular class of individuals the right to do an activity but denies it to other individuals.
Discuss the statutory state of mind in criminal cases. SGS
The state of mind held by the defendant of a criminal case can be summed up in the acronym SGS which is: specific intent, general intent, and strict liability. These fall under things to consider when questioning whether or not the defendant can be prooven without a reasonable doubt that they committed the crime. The first, specific intent, can be defined that the crime committed by the defendant was intentionally conducted and was meant to cause a specific result that ended as a crime. General intent is the intent to engage in conduct. In this case, the state does not have to prove that the defendant intended the precise harm or result which resulted. Strict liability holds a person legally responsible for damage or loss caused by his or her acts regardless of mental state. It makes sure nothing is left out, or unspoken.
In terms of the "balancing concept," briefly discuss the various tests the courts apply in balancing the interests of the public with the exercise of the individual rights. CSR
There are three tests; the "Compelling Interest Test," the "Substantial Relations Test," and the "Rational Basis Test." Compelling Interest Test- states that the 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. These interests apply to fundamental interests such as religion, press, and speech. Substantial Relations Test- states that the government must show an "important interest" and the means to achieve that important interest must be substantially related. These interests apply to discrimination cases such as gender, age, and disability. Rational Basis Test- states that government must show a "legitimate interest" and the means to achieve that legitimate interest must be rationally related. These interest apply to property and economic issues.
Discuss organizational obligations in terms of work place safety, customer relations, supplier relations, environmental concerns, financial reporting, whistle-blowing and accounting.
Whistle-blowing is going outside the primary workplace to report wrongdoing, and exposing misconduct within a company. As far as customer relations, there needs to be accessible customer service policies, safe procedures, allow for special needs- such as service animals, allow for customer feedback, and train the staff to be up to date with all new codes and regulations. Suppliers must prevent unethical conduct, negative influences, promote responsibility and integrity, and compete professionally. Environmentally they should allow for proper disposal of waste, limit use of substances that add to pollution, and be as environmentally friendly as possible. Financial reporting is very important because businesses can get into a lot of trouble if they are suspected of changing the numbers to make the company look better.
