BLaw 2361 Exam 1 Review

Theories of Corporate Social Resposibility

-Maximize profits for shareholders -Moral Minimum: Avoid causing harm and compensate for harm caused. -Stakeholder Interest: consider the interest of stockholders, employee, customers, suppliers, creditor and the community. -Social Contract Theory: Conform to society's evolving expectations in exchange for the benefits of corporate status. -Corporate Citizenship: Do good and solve social problems.

Steps for Establishing an Ethical Workplace

1. Establish policies and procedures that define your ethics culture, usually outlined in your code of conduct. 2. Board of directors and executive leadership need to be accountable to ensure policies and procedures are integrated with proper oversight. 3. Train employees to policies and procedures. 4. Establish an "open door policy" for employees to bring issues forward without fear of retaliation. 5. Apply consistent treatment to similar ethics issues and violations. 6. Continually learn from ethical issues and make appropriate changes to policies and procedures.

Five Stages of Litigation Process

1. Pleadings- Each party in a lawsuit files initial papers, known as "pleadings." The pleadings explain each party's side of the dispute. The Complaint: Litigation begins when the plaintiff files a complaint/ summons with the court and formally delivers a copy to the defendant. The complaint describes what the defendant did (or failed to do) that caused harm to the plaintiff and the legal basis for holding the defendant responsible for that harm. The Answer:The defendant is given a specific amount of time to file an answer to the complaint. The answer provides the defendant's side of the dispute. The defendant may also file counter-claims against the plaintiff, alleging that the plaintiff has harmed the defendant and should be held liable for that harm. 2. Discovery- Usually the longest part of the case. It begins soon after a lawsuit is filed and often does not stop until shortly before trial. During discovery, the parties ask each other and third parties for information about the facts and issues of the case. Information is gathered formally through written questions (known as "interrogatories"), requests for copies of documents, and requests for admission (which ask a party to admit or deny statements of fact). 3. PreTrial- Immediately before trial, each party provides to the judge a document, called a "brief," that outlines the arguments and evidence to be used at trial. At this stage, the parties may try to come up with a solution to their without taking it to court. This can be the cheaper route and keeps the case private. This can be done by; Mediation: Informal process where an impartial third-party, the mediator, helps the disputing parties find a mutually satisfactory solution to their issue. Arbitration: Procedure whereby two or more parties agree to have an unbiased, neutral, third-party (or third-parties) act as judge and jury to resolve their dispute for them in private -- outside of the public judicial system. Disposition Without Trial: default judgements (plaintiff wins because no response), dismissals, summary judgement (if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial), and Settlement (Conclusion of an agreement under which a party fulfills its promise to another party). 4. Trial- Some trials, known as "bench trials," do not involve a jury and are decided by the judge alone. Other trials are jury trials. In a jury trial, both parties question potential jurors during a selection process known as "voir dire". Each party presents its outline of the case in an opening statement, then the parties present evidence and call on witnesses, once all the evidence has been presented, the parties give their closing arguments. After closing arguments, the court instructs the jury on the law to be applied to the evidence. The jury then deliberates and reaches a decision or verdict. 5. PostTrial- Following trial, a party dissatisfied with the result may appeal. During an appeal, a party asks a higher court to review the trial court proceeding. Or they may ask the judge to enter a judgement notwithstanding the verdict (JNOV) rendered by the jury. A JNOV is proper when the court finds that the party bearing the Burden of Proof (A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact.fails to make out a Prima Facie case (a case that on first appearance will prevail unless contradicted by evidence). Once judgement becomes final the defendant is legally required to comply with its terms. If defendant doesn't comply, their assets can be seized.

Summary Judgement

A court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. -The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint.

Subject-Matter Jurisdiction

A court's jurisdiction over the law and facts involved in the suit. A judgment from a court that did not have this is forever a nullity (legally not important).

Personal Jurisdiction

A court's jurisdiction over the parties to a lawsuit. A court that has this, has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit.

Constitutional Basis for Blue Laws

A state or local law that prohibits commercial activities on Sunday. -Usually referred to as Sunday closing laws, prohibit certain types of commercial activity on Sundays. Originally these laws were directed at personal activities regarded as moral offenses, such as gambling or the consumption of alcohol. In the nineteenth century, however, state and local governments passed laws that forbade businesses from operating on Sunday. -Though the U.S. Supreme Court has ruled that they do not violate the First Amendment's Establishment Clause. Many blue laws have been repealed since the 1960s, but some laws that ban the sale of alcohol on Sunday remain in force. As long as these laws can be supported by a secular purpose they will be viewed as constitutional.

Directed Verdict

An order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case. -A judge may order a directed verdict as to an entire case or only to certain issues.

Equal Protection Clause

Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. -The laws of a state must treat an individual in the same manner as others in similar conditions and circumstances and is not intended to provide "equality" among individuals or classes but only "equal application" of the laws.

Regulation of Commercial Speech

Commercial speech, such as advertisements, has been ruled by the Supreme Court to be entitled to less protection under the First Amendment than noncommercial speech. -Commercial speech that is false or misleading is not entitled to any protection under the First Amendment, and therefore can be prohibited entirely.

Privileges and Immunities Clause

Concepts contained in the U.S. Constitution that place the citizens of each state on an equal basis with citizens of other states in respect to advantages resulting from citizenship in those states and citizenship in the United States. -The Privileges and Immunities Clauses are found in Article IV of the U.S. Constitution and the Fourteenth Amendment. Both clauses apply only to citizens of the United States.

Discovery Tools in a Lawsuit

Depositions- A party to a lawsuit may obtain an oral pretrial examination of an adverse party or witness—the deponent—who is under oath to respond truthfully to the questions. Interrogatories- Specific written questions submitted by a person, pursuant to a discovery order, to an adversary who must respond under oath and in writing. Requests for Admissions- A party may ask an adversary to admit any material fact or the authenticity of a document that is to be presented as evidence during the trial. Facilitates the fair and efficient administration of justice by minimizing the time and expense incurred in proving issues that are not in dispute. Requests for Production of Documents, Objects, and Entry Upon Land- A litigant is generally entitled to the production and inspection of relevant documents in the possession or control of an adversary pursuant to discovery. The applicant must have a reasonable belief that such evidence is necessary to the lawsuit if discovery is to be granted. Requests for Examinations- A mental or physical examination of a party whose condition is an issue in litigation may be authorized by a court in the exercise of its discretion.

Commerce Clause

Empowers Congress "to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes." -The term commerce as used in the Constitution means business or commercial exchanges in any and all of its forms between citizens of different states, including purely social communications between citizens of different states by telegraph, telephone, or radio, and the mere passage of persons from one state to another for either business or pleasure.

Types of Speech Protected by 1st Amendment

Established to help promote the free exchange of ideas and to provide a form of redress to citizens against their government. Additionally, the First Amendment seeks to protect unpopular forms of speech such as; -Commercial Speech: Speech that "propose[s] a commercial transaction" -Political Speech: Most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. -Symbolic Speech: Actions that purposefully and discernibly convey a particular message or statement to those viewing it. Unprotected Speech- limitations on the First Amendment's guarantee of free speech and expression as recognized by the United States Supreme Court. These exceptions include; - False statements of fact, Obscenity, Child pornography, Fighting words and offensive speech, Threats, Speech owned by others and Commercial Speech.

Diversity Jurisdiction

Form of subject-matter jurisdiction in civil procedure in which a United States district court in the federal judiciary has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens.

Due Process Clause

Found in the 5th and 14th amendments of the US constitution and is a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious. -The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law". - The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law".

Appellate Court's Scope of Review

Generally, appellate courts only review issues of law, not factual findings. The scope of review is limited to issues raised in trial court. An issue not addressed in trial court can be raised in the appellate court only if the issue: is on subject matter jurisdiction, affects the fairness, integrity, or reputation of public judicial proceedings, is one of law only, affects the right to maintain the action, or is on standing to a legally recognized relief.

Approaches to Ethical Reasoning

Golden Rule- do unto others as you would have them do unto you. Intuition Ethic- if it feels good, do it. Positive Law Model- obey the laws which government imposed on society. This allows widespread social acceptance and fairness. -accommodates deontological and utilitarian theories. Newspaper Test/ Disclosure Rule- it encourages a public official to think about how his or her actions might look to the outside world. Mirror Test- if I make this decision will I be able to look at myself in the mirror tomorrow morning. Professional Ethic- do only that which can be explained before a committee of your professional peers. Kant's Categorical Imperative (deontology)- rightness or wrongness is judged by estimating consequences that would follow if everyone preformed that same action. Means are as important as the ends. Premised on the belief that general guiding principles for moral behavior can be derived from human nature. (Means) Utilitarianism- action is ethical if it provides the greatest good for the greatest number of people. To apply; determine who will be affected by action, conduct cost-benefit analysis and choose among alternative actions that will produce maximum social utility. (Ends) Stakeholder Model- identify stakeholders, customers, employees, etc and their competing interests, recognize validity of competing claims, let them participate if possible, accepts that any decision is likely to be a compromise.

Common Law

Includes "judge-made laws" and relies on judicial precedents (case law). Judges, thus, in their decisions are bound by precedent: the rulings of other judges in similar cases decided earlier. (All the states except for Louisiana are common law states, Florida is a common law state).

Foreign Corrupt Practices Act

Is a United States federal law known primarily for two of its main provisions, one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials -Prohibits US businesspersons from bribing foreign official to secure beneficial contracts. -Does not prohibit bribes to minor officials whose duties are ministerial/ minor.

Contingency Fee System

Is any fee for services provided where the fee is payable only if there is a favorable result. In the law, it is defined as a "fee charged for a lawyer's services only if the lawsuit is successful or is favorably settled out of court.... Contingent fees are usually calculated as a percentage of the client's net recovery".

Supremacy Clause

It provides that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land." -It means that the federal government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power.

Full Faith and Credit Clause

It states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." -Ensures that judicial decisions rendered by the courts in one state are recognized and honored in every other state. It also prevents parties from moving to another state to escape enforcement of a judgment or to relitigate a controversy already decided elsewhere, a practice known as forum shopping.

Statutory Law

Law enacted by legislature. Congress, state and municipalities all have legislative bodies that make laws. It is created through a formal lawmaking process and codified in official text. ( Example: When the Florida Legislature passes a bill, such as the recent primary seat belt law - it is a Staturtory Law.)

Administrative Law

Law that governs the creation of agencies that aid in administering governmental powers and functions. Although constitutional and administrative law differ in their scope and purpose, constitutional law plays a large part in administrative law.

Judgments N.O.V

Meaning "notwithstanding the verdict," referring to a decision of a judge to set aside (reverse) a jury's decision in favor of one party in a lawsuit or a guilty verdict when the judge is convinced the judgment is not reasonably supported by the facts and/or the law. - The result is called a "judgment N.O.V." Granting a motion for such a ruling means the court realizes it should have directed the jury to reach an opposite verdict in the first place.

Types of Alternative Dispute Resolutions (ADR)

Mediation- An impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. -May be particularly useful when parties have a relationship they want to preserve. Arbitration- A neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome of the dispute. -Arbitration may be either "binding" (parties waive their right to a trial and agree to accept the arbitrator's decision as final.) or "non-binding" (parties are free to request a trial if they do not accept the arbitrator's decision). -Best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. Neutral Evaluation- each party gets a chance to present the case to a neutral person called an "evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party's evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. -May be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages. Settlement Conferences- May be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a "settlement officer" to discuss possible settlement of their dispute. -Are appropriate in any case where settlement is an option.

Reliefs a Court Awards

Monetary (legal) Damages- Material compensation, essentially money, that are awarded to an injured party in a lawsuit. -Compensatory Damages: include pain and suffering or loss of income. -Nominal Damages: occurs in situations where legal fault is determined, but there is little or no actual loss. -Punitive Damages: awarded based on the intent behind an illegal act. Equitable Remedies- Court order that forces a defendant to perform his or her part of a contract, instead of imposing a fine (for non-performance or breach of contract) that lets the defendant 'buy' himself or herself out of his or her obligations under the contract. Courts take this step when they are of the opinion that a payment of damages only is not good enough for a just settlement of the case.

Schools of Jurisprudence

Natural law- is a philosophy of law that focuses on the laws of nature. This school of jurisprudence represents the belief that there are inherent laws that are common to all societies, whether or not they are written down or officially enacted. Our Declaration of Independence and the Bill of Rights are both heavily based on this. Legal Positivism- This school of thought is the opposite of natural law. It proposes that there isn't necessarily a connection between law and morality. Instead, it holds that law comes from various sources, usually the government. If the government enacts a law, then it should be followed. Legal Realism- This theory proposes that law is a reflection of the personal view of those people in charge of enacting, applying and enforcing it. The actual practice of law determines what law is.

Pyramid of Corporate Social Responsibility

Philanthropic Responsibility- to contribute to society's projects even when they're independent of the particular business. A lawyer driving home from work may spot the local children gathered around a makeshift lemonade stand and sense an obligation to buy a drink to contribute to the neighborhood project. Ethical Responsibility- to do what's right even when not required by the letter or spirit of the law. This is the theory's keystone obligation, and it depends on a coherent corporate culture that views the business itself as a citizen in society, with the kind of obligations that citizenship normally entails. Legal Responsibility- to adhere to rules and regulations. Like the previous, this responsibility is not controversial. What proponents of CSR argue, however, is that this obligation must be understood as a proactive duty. Economic Responsibility- to make money. Required by simple economics, this obligation is the business version of the human survival instinct. Companies that don't make profits are—in a modern market economy—doomed to perish.

Procedural vs Substantive Due Process

Substantive Due Process issues involve the states' power to regulate certain activities. Procedural Due Process issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property.

Case Law Citations

System used in many countries to identify past court case decisions, either in series of books called reporters or law reports, or in a "neutral" style that identifies a decision regardless of where it is reported. - A legal citation is a "reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position. -Where cases are published in paper format, the citation usually contains the following information: Report title Volume number Page number Year of decision

Structure of Federal Court System

The Supreme Court hears most cases on appeal. Litigants wishing to appeal their cases from a state supreme court or from a federal Court of Appeals must file for a "writ of certiorari" glossary for 'certiorari'. If four of the nine Justices agree to issue a writ, the Court will hear the case. The Court also has limited "original jurisdiction" in some cases. The Federal Courts of Appeal are the middle part of the pyramid. The Courts of Appeal are divided into twelve different regions, often known as "circuits". These courts are often known as "circuit courts". No original jurisdiction, strictly appellate. The Federal District Courts are the lowest part of the pyramid. There are 94 judicial districts across the country, including judicial districts in the District of Columbia, Puerto Rico, the Virgin Islands, the Northern Mariana Islands, and Guam. Has original jurisdiction over most cases and no appellate jurisdiction.

The 4th Amendment

The U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property -- whether through police stops of citizens on the street, arrests, or searches of homes and businesses.

Federal Question Jurisdiction

The authority to hear lawsuits that turn on a point of federal law (an issue directly involving the U.S. Constitution, federal statutes, or treaties between the United States and a foreign country).

Original Jurisdiction vs Appellate Jurisdiction

The federal courts can have either original jurisdiction or appellate jurisdiction over a case. Original- This means the court has the right to hear the case for the first time. Courts with this include; State trial courts, Traffic courts, Family courts, Juvenile courts Bankruptcy courts, Tax courts and the United States Supreme Court. Appellate- This means the court hears an appeal from a court of original jurisdiction. The appeals court uses this to review a lower court's decision. Courts with this include;State courts of appeal, State superior courts, State supreme courts, Federal district courts and the United States Supreme Court.

Burden of Proof

The obligation to offer evidence that the court or jury could reasonably believe, in support of a contention, failing which the case will be lost. The most important rule of evidence in the trial of civil (not criminal) cases. -The burden of proof is on the plaintiff (the party bringing the lawsuit) to show by a "preponderance of evidence" or "weight of evidence" that all the facts necessary to win a judgment are probably true.

Parties in a Lawsuit

The people or organizations (such as businesses or nonprofit groups) in whose names a case is brought. In criminal cases, one party is the government, called the state, commonwealth, or the people of the United States, and the other party is the defendant. In general civil cases, the party who brings a lawsuit is called the plaintiff, and the party against whom the case was brought is called the defendant. In family law cases, the party who starts the lawsuit is called the petitioner (appellant), and the party against whom the case was brought is called the respondent (appellee). Appellant- The party initiating an appeal of the decision of a lower court. Sometimes designated more precisely. Appellee- The party defending the decision of the lower court on appeal.

The 10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. -Embodies the general principles of Federalism in a republican form of government and reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising. -For example, nowhere in the federal Constitution is Congress given authority to regulate local matters concerning the health, safety, and morality of state residents. Known as police powers, such authority is reserved to the states under the Tenth Amendment.

Venue

The proper or most convenient location for trial of a case. -Normally, the venue in a criminal case is the judicial district or county where the crime was committed. -For civil cases, venue is usually the district or county which is the residence of a principal defendant, where a contract was executed or is to be performed, or where an accident took place.

Standing

The right to file a lawsuit or file a petition under the circumstances. A plaintiff will have standing to sue in federal court if; a) there is an actual controversy b) a federal statute gives the federal court jurisdiction c) the parties are residents of different states or otherwise fit the constitutional requirements for federal court jurisdiction.

Jurisprudence

The study/ philosophy of law. It is a type of science that explores the creation, application, and enforcement of laws. Analytic- This area addresses the meanings and uses of legal concepts, such as, 'what is law?' Normative- This area addresses the moral basis of law, such as, 'what is the purpose of law?'

In rem Jurisdiction

[Latin, Against or about a thing.] referring to a lawsuit or other legal action directed toward property, rather than toward a particular person.The term is important since the location of the property determines which court has jurisdiction and enforcement of a judgment must be upon the property and does not follow a person.

Stare Decisis

[Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.