Business Law Test 1
Legislation
Bills originate in congressional committees and go from there to the full House of Representatives or Senate. If both houses pass the bill, the legislation normally must go to a Conference Committee to resolve differences between the two versions. The compromise version then goes from the Conference Committee back to both houses and if it is passed by both, to the president. If the president signs the bill, it becomes a statute, if he vetoes it, Congress can pass it over his veto with a two thirds majority in each house
Administrative Agencies
Congress creates federal administrative agencies with enabling legislation, the Administrative Procedure Act controls how legacies do their work
Statutory Interpretation
Courts interpret a statute by using the plain meaning rule, then, if necessary, legislative history and intent, and finally, public policy
Common Law
Evolves in awkward fits and starts because courts attempt to achieve two contradictory purposes; predictability and flexibility
Why bother with ethics?
Four reasons to be concerned with ethics in a business environment: society as a whole benefits from ethical behavior, people feel better when they behave ethically, unethical behavior can be very costly, ethical behavior is more likely to pay off
Ethics Checklist
What are the facts? What are the critical issues? Who are the stakeholders? What are the alternatives? What are the ethical implications of each alternative? Is is legal? How would it look in the light of day? What are the consequences? Does it value important values?
Appeals
appeals court has many options, the court may affirm, upholding the lower court's decision; modify changing the verdict but leaving the same party victorious; reverse, transforming the loser into the winner and/or remand, sending the case back to the lower court
Appellate Courts
appeals courts generally accept the facts found by the trial court and review the trial record for errors of law
Money
campaign contributions and spending are largely controlled
Bystander rule
common law rule holds that, generally, no one has a duty to assist someone in peril unless the bystander himself created the danger, courts have carved some exceptions during the last 100 years but the basic rule still stands
Jurisprudence
concerned with the basic nature of law
Criminal Law
concerns behavior so threatening to society that it is outlawed altogether, deals with duties and disputes between parties not with outlawed behavior
Discovery
critical pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case. Important forms of discovery include interrogatories, despositions, production of documents and objects, physical and mental examinations, and requests for admissions
Substantive Law
defines rights of the people
Procedural Law
describes the processes for settling disputes
Rules of Evidence
determine what questions may be asked during trial, what testimony may be given, and what documents may be introduced
Motions
formal request sent to the court
Jury Trials
generally, both plaintiff and defendant may demand a jury in any lawsuit for money damages
Stare decises
means "let the decision stand" and indicates that once a court has decided a particular issue, it will generally apply the same rule in future cases
Burden of Proof
plaintiff's burden of proof in a civil lawsuit is preponderance of the evidence meaning that its version of the facts must be at least slightly more persuasive than the defendant's, in a criminal prosecution the government must offer proof beyond a reasonable doubt in order to win a conviction
Voir Dire
process of selecting jurors in order to obtain an impartial panel
Summary Judgment
ruling by the court that no trial is necessary because there are no essential facts in a dispute
Agency Limitations
the four most important limitations on the power of federal agencies are statutory control in the enabling legislation and the APA; political control by Congress and the President; judicial review; and the informational control created by the Freedom of Information Act and the Privacy Act
Trial Courts
trial courts determine facts and apply the law to the facts
Adjudication
Agencies adjudicate cases, meaning that they hold hearings and decide issues. Adjudication generally begins with a hearing before an administrative law judge and may involve an appeal to the full agency or ultimately to federal court
Investigation
Agencies have broad investigatory powers and may use subpoenas and, in some cases, warrantless searches to obtain information
Rulemaking
Agencies may promulgate legislative rules, which generally have the effect of statutes or interpretive rules, which merely interpret existing statutes
ADR
Alternative Dispute Resolution is any formal or informal process to settle disputes without a trial. Mediation, arbitration, and other forms of ADR are growing rapidly
Verdicts
Jury's decision in a case, losing party may be ask the trial judge to overturn the verdict, seeking a judgment non obstante veredicto or a new trial but judges seldom grant either
Three theories of Jurisprudence
Legal Positivism: law is what the sovereign says it is Natural Law: an unjust law is no law at all Legal realism: who enforces the law is more important than what the law says
The Federal System
Our federal system of government means that law comes from a national government in Washington DC, and from 50 state governments
Primary Sources of Law
Primary sources of contemporary law are: United States Constitution and state constitutions Statutes, which are drafted by legislatures Common law, which is the body of cases decided by judges, as they follow earlier cases known as the precedent Administrative law: the rules and decisions made by federal and state administrative agencies
Legal History
The history of law foreshadows many current legal issues, including mediation, partnership liability, the jury system, the role of witnesses, the special value placed on land, the idea of precedent, and the difference between substantive and procedural law
Court Systems
There are many systems of courts, one federal and one in each state. A federal court will hear a case only if it involves a federal question or diversity jurisdiction
Other sources of contemporary law
Treaties and executive orders
Pleadings
a complaint and an answer are the two most important pleadings, that is, documents that start a lawsuit