BUL 6810

Grand Jury-

some crimes the evidence is presented to the grand jury, which is a panel of citizens who serve for a designated period of time (6 months) and review the evidence of the crime

International organizations

Some __________________ ___________provide the means for facilitating multinational commercial transactions.

Criteria for In Personam Jurisdiction

1. Ownership of Property within the State: A party who owns real property in a state is subject to the jurisdiction of that state's courts for litigation related to that property. This type of jurisdiction is called in rem jurisdiction. 2. Volunteer Jurisdiction: A court has jurisdiction over a person who agrees (volunteers) to be subject to that court. 3. Presence in the State: A court can take jurisdiction by the "presence" of a party in the state.

Treaties

A ________ is an agreement b/w or among nations on a subject of international law. Treaties can be b/w two nations - bilateral ________ or multilateral made among several nations.

Black's Law Dictionary -

A body of rules of action or conduct prescribed by the controlling authority, and having legal binding force

Jurisdictional Issues in International Law

A common subject of international disputes is whether courts in the U.S. can require foreign companies to defend lawsuits within the United States.

The doctrines of international laws

A number of principles of international law are widely accepted and honored by most countries. Act of State Doctrine, a theory that protects governments from reviews of their actions by courts in other countries.

Natural Law

A theory that holds that we have certain rights that cannot be taken away by law. · Example Slavery was legal in US it was constantly met with dissent, disobedience and eventually civil war · ______ law is higher than positive law

Blackstone

That rule of action which is prescribed by some superior and which the inferior is bound to obey

Obstruction of Justice:

Under Sarbanes-Oxley, prohibits destruction of documents when civil or criminal investigation are pending (e.g. Martha Stewart's case) by law they can audit the person for at least 5 years and any destruction of documents is a felony and can carry up to 10 years.

The Structure of the Federal District Court System:

Each state has at least one federal judicial district · The number of federal districts in each state and the number of judges and courts is all determined by the state's population and caseload · Ninety-four federal districts serve the states, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands.

Classifications of Law Private Law

Enacted by private individuals (between two individuals) Example: the terms of a lease agreement Example: employment agreement

Classifications of Law Public Law

Enacted by some authorized government body. Example: Federal securities laws, state and federal constitutions and statues

Customs·

Every country has its boundaries for allowable behavior and these boundaries are unwritten but recognized laws. _______ develop over time and through repeated conduct.

Statutes on business crimes are found at the federal level

Ex of some statutes that carry criminal penalties - Securities exchange acts - Sherman act - Internal Revenue Act - Pure Food and Drug act - OSHA - Consumer Product Safety

Racketeer Influenced and Corrupt Organizations (RICO) Act:

Federal law that provides both criminal and civil penalties for engaging in criminal activities more than once (includes: murder, kidnapping, gambling, arson, robbery, bribery, extortion, pornography, counterfeiting, etc.).

How the sentencing guidelines work and what companies can do to minimize sentences:

Federal sentencing guidelines provide for a score that determines the extent of the sentence

Civil Law: Substantive:

Gives rights and responsibilities, or the actual rules

Commercial Bribery:

Giving and receiving gifts or funds in exchange for a contract or favor (e.g. kickback)

Public Purpose:

Governmental authority must establish that taking is necessary for the accomplishment of a government or public purpose

Corporate Board Criminal Responsibility:

Holding companies accountable for criminal conducts of their officers (1) if they authorized the conduct or (2) if they knew about the conduct and did nothing- White-Collar Kingpin Act= federal law imposes minimum federal mandatory sentences on corporate officers.

Affirm

If no reversible error is found, the court affirms the trial court's decision

Modify

If portions of the case are reversed or _________. Case Precedent: Judges examine all prior cases in the same area of law or related to a statute to determine if the case should be decided same way. Several factors determine the precedent: Ø Quality of precedent - Where the case originated. For example, a precedent from another federal court is strongest. Ø Purposes of precedent - provides consistency and reliability in law Ø Interpretation of precedent - every case decision has two parts. One is the actual rule of law and the discussion of the case called "dicta"

Uniform international laws

In an attempt to introduce uniformity in international contract law, the UN developed its Contract for the international Sale of Goods. (CISG)

Mens Rea, Scienter, Or Criminal Intent:

Requisite mental state for committing a crime (e.g. driving intoxicated, concealing income, U.S. v Ahmad)

Appellate court:

Reviews the conduct during the trial of the judge, the lawyers, witnesses and the jury. · Assures that the lower court applied the law correctly and followed the rules of procedure. In some cases, the court issues published opinions which can be referred to and used as resources in deciding future cases · Does not hold trials, witnesses, jury or evidence · Judicial review process:______________________reviews the transcript of the trial along with evidence (no new evidence is allowed) or each party can present a brief to see if an error was made applying the substantive or procedural law in the case · Renders interpretations of statutes · ___________ brief: each side summarizes why the trial decision or procedures were incorrect. Make arguments with supporting statutes and decisions from other cases · Oral arguments: Each attorney makes an oral argument which is timed discussing the summary of the brief · More than one judge reviews the actions of the lower court · The judges decide unanimously or could be a split vote 2 to 1. If there is a split vote, a justice who is not the majority will draft a dissenting opinion which is the judge's explanation for a vote different than the majority

Law

Rules Enacted by a Government Authority That Govern Individuals and Relationships in Society

Positive Law:

School of thought that believes critical part of law is obedience to have an orderly society

In Personam Jurisdiction of Courts: The Authority Over Persons

When citizens of different states are involved in a case, a federal district court will have subject matter jurisdiction over the parties. Out of the 94 federal district courts, the case will be heard by the federal court with in personam jurisdiction over the parties.

Trial court

Where facts of a case are presented. Jury sits if the case is a jury trial · Evidence and witnesses are presented and the first decision in the case is made by either judge or jury · One judge makes the decision

Arraignment-

the proceeding at which the defendant enters a plea of guilty, not guilty, or no contest

Substantive Due Process-

the right to have laws that do not deprive businesses or citizens of property or other rights without justification and reason. - Substantive law- consists of rights, obligations, and behavior standards. - Criminal laws are substantive laws - Criminal procedure rules are procedural laws

Sources of Law

a) Constitutional Law · Constitutions are the law of people and are changed only NY lengthier procedures. · Constitutions are not statutes because they cannot be amended or repealed with same ease as can statues. · Constitutions tend to protect general rights as speech, religion, and property b) Statuary law at the federal level · Congressional Law: congress is responsible for statutory law at the federal level. The laws pass by congress become part of the United States Code (U.S.C). · Executive Orders: executive order are the laws of the executive branch of the federal government and deal with those matters under the direct control of that branch. · Federal Administrative Regulations: the federal government has administrative agencies that serve the function of promulgation of rules called regulations for developing specifics such as forms and time requirements for carrying out the legislative enactment of congress. Federal regulations are found in the Code of Federal Regulations (CFR). c) Statuary law at the state level · Legislative law and State Codes: each state has its own code containing the laws passed by its legislature. State codes contain the states' criminal laws, laws for incorporation laws governing partnerships and contract laws. Some of the laws passed by state are uniformed laws, which are drafted by groups of business people, scholars and lawyers. · State Administrative Law: state governments have administrative agencies with the power to pass regulations dealing with the statutes and powers given by the state legislatures. d) Local laws of cities, counties, and township · Local governments can pass ordinances or statutes within their areas of power or control. e) Private laws · Private laws are a final source of written law and are found in contracts and landlord regulations. f) Court decisions · When ambiguities or omissions occur in the statutory language, courts provide interpretation or clarification of the law when disputing parties bring suit.

A specific system is used for citing case opinions: All case cites consist of three elements:

an abbreviation for the reporter, the volume number, and the page number.

Civil laws

are wrongs against individuals - torts, contracts, etc

Criminal laws

are wrongs against society. Criminal Violations penalties can be Imprisonment or Fines

In Diversity cases:

both state and federal courts have concurrent jurisdiction which means that two courts have the authority to hear a case.

Warrant and/or Arrest-

due process begins at the time of the arrest

6th Amendment-

ensure speedy trial

Trial-

if no plea agreement is reached before trial, then the case proceeds. Business Crime and International Business

Indictment-

if the grand jury finds sufficient evidence that a crime was committed, it issues and indictment.

Equity:

is a body of law that attempts to do justice when the law does not provide a remedy/ When the remedy is inadequate/ or when the application of the law is terribly unfair. courts of _____ could issue orders, known as injunctions, prohibiting certain conduct or ordering certain acts. todays courts award ______remedies when the legal remedy of money damages would be inadequate.

Procedural due process-

is a right that requires notice and the opportunity to be heard before rights or properties are taken away from an individual or business. -Before an agency can take an away a business license, suspend a license, or impose a fine for violation, it must ensure due process.

Tort

is some type of interference with someone or someone's property that results in injury to persons or property. Example: using someone's land without permission is interference with that person's property rights and is the tort of trespassing.

Discovery-

is the case is going to trial, the both parties enter into a discovery period where both sides turn over the evidence and witness lists.

Elements of Business Crime:

requirements for proof for crime and varies according to crime. Crimes are violations of written laws/statue. (Classified into two elements mens rea or scienter and actus reus).

4th Amendment-

right to privacy

5th Amendment-

protection against self-incrimination and due process- the accused has the right to be heard

Theft:

(1) Intent to take property for permanent use, (2) taking the property for permanent use, (3) no authorization to take the property (e.g. all three are actus reus- No #2 is the only mens rea)

4th Amendment Rights for Businesses

- Before the government can search or seize the property of and individual or business they must have a search warrant. - This also applies to corporations and they have the same protection under the law

Common Law

- Began in England in 1066 and continues today - Non-statutory law - Exists in court decisions - Following case precedent, or stare decisis, "let the decision stand" - this is why we study so many Supreme Court cases

o Anyone who is arrested must be told their rights by the officer placing them in custody

- Due Process Rights • No one can be convicted of a crime without the opportunity to be heard, to question witnesses, and to present evidence.

Exceptions to the Warrant Requirement:

- Emergencies and risk of loss of evidence - The plain view exception - Warrants and Technology: Texts, E-mails, and ISPs o This area is still evolving - Privileged Documents and the 4th amendment 5th Amendment Right for Businesses - Self- Incrimination - Miranda Rights

Statutory Law

- Passed by governmental body, such as Congress or state legislature Exist in all levels of government. (federal, state, county, city, borough, and town) - vary in the nation because of cultural heritages of various regions.

Equal Protection Rights for Business

- The Fourteenth Amendment grants citizens the right to equal protection of the law. - Disparate treatment is justified only if some rational basis for it is determined.

Appellee or respondent

- the other party

Types of Court:

All U.S. Courts include two different types or levels: trial courts and appellate courts

Characteristics of Law Consistency:

Although the law must be flexible, it still must be predictable -Example: Allows businesses to rely on law for planning

Corporate Sentencing Guidelines:

An ounce of prevention means a reduced sentence: Involvement of the top officers in corporate crime increases the penalty under the U.S. sentencing guidelines

Remand

Appellate court sends the case back to trial court for further proceedings

Characteristics of Law Flexibility:

As society changes, the law must change with it - Examples: The Internet has required the courts to revisit when a contract acceptance occurs

Private law in international transactions

Businesses involved in multinational trade rely heavily on ____________ to assure performance of contractual obligations.

" Minimum Contacts"

Corporations and residents can be subject to a state court's jurisdiction if they have "__________ ________" in that state. States are required to notify out-of-state defendants of a suit and determine that those defendants have some contact with the state [standard for fairness determined in International Shoe v. Washington, 326 U.S. 310 (1945)].

Computer Crime:

Crime using a computer (e.g. person who mails flyers that falsely advertise a service as computerized)

Statecrimes

Criminal Fraud and securities o States have regulations on some industries - Ex. Sale of Liquor

Residence

Individuals are present in a state if they have a _____________ in that state. The requirement is that the person live in the state for some time during any given year. (e.g. Corporations are residents of states in which they are incorporated or have a business office with employees.)

Criminal Fraud:

Intent to defraud, misrepresentation with the intent to take something from another without that person's knowledge (e.g. obtaining money, goods, services or property through false or misleading statements)

Embezzlement:

Intent to take the property and taking the property for temporary use by person entrusted with property= embezzlement is the theft from a specific type of person/employer (e.g. cashier taking drawer money, inventory, equipment of a business)

Introduction to international laws

International law is not a neat body of law like contract law or the UCC. Rather, it is the combination of the laws of various countries, international trade customs and international agreements.

Reversible error

Is one that might have affected the outcome of the case or influenced the decision made. Examples include: Ø Refusal to allow some evidence to be admitted that should have been admitted Ø Refusal to allow a witness to testify Ø Misapplication of the law Once a __________ ____________has been made the appellate court reverses the lower court's decision.

The protection of individuals and relationships

Justice Holmes rejected the notion of natural law. · His opinion is that our interactions with each other constitute the foundation of law.

Holmes -

Law embodies the story of a nation's development through many centuries

Aristotle -

Law is reason unaffected by desire

Civil Law: Procedural:

Means or procedures for enforcing substantive rights, or how to get those rules/rights enforced

Jurisdiction by diversity:

Most civil cases are in federal district court because the plaintiff and defendant are from different states and their case involves damage claims more than $75,000. o Therefore, both parties in the case qualify for diversity of citizenship status which allows the federal courts the authority to hear these diversity cases.

Limited Jurisdiction: The Special Trial Courts of the Federal System:

Not all cases in which the United States is a party or in which a federal question is involved are decided in federal district courts. · The federal system also has specialized trial courts to handle limited matters. For example: o The jurisdiction of the Tax Court in the federal system is limited to tax issues. If you challenge the Internal Revenue Service because it would not allow one of your deductions, your case would be heard in Tax Court. o The bankruptcy courts make up a well-used limited court system within the federal system and have exclusive jurisdiction over all bankruptcies. No other court can handle a bankruptcy or bankruptcy issues, and bankruptcy courts do not handle any other type of trial or suit. o The U.S. Claims Court is another specialized federal court: It handles disputes that involve government contracts and other claims against the federal government, such as eminent domain issues. o The U.S. Claims Court is another specialized federal court: It handles disputes that involve government contracts and other claims against the federal government, such as eminent domain issues. • The Indian Tribal Court. This court, the court of the Native American nations, has exclusive jurisdiction over criminal and civil matters on the reservations. Indian tribal courts are unique because of their limited jurisdiction and their exclusivity, which arises from their sovereign nature.

Actus Reus:

Physical act of committing a crime (e.g. embezzlement, failure to pay taxes)

Parties in the Judicial System (Civil Cases)

Plaintiffs Defendants or respondent Lawyers Judges How do we get all our federal judges? Appointed by president and approved by senate

Mens Rea, Conscious Avoidance, and Corporate Officers:

Prove intention on behalf directors (to prosecute, must show individual intent, can establish by showing their knowledge of actions and failure to object).

Appellate Jurisdiction and Process

The Supreme Court handles appeals from the U.S. courts of appeals · Supreme Court must first decide whether a particular case merits review. That decision is announced when the Court issues a writ of certiorari for the cases it will review in full. o The Supreme Court in its writ makes a preliminary determination about the case and whether it should be decided o Only a small number of cases appealed to the Supreme Court are actually heard. o The court grants writs of certiorari in cases as a matter of discretion. Certiorari may be granted because of a conflict among the circuits about the law i.e. differing decisions among the circuits on the constitutionality of Obamacare or the case presents a major constitutional issue such as the corporate political donations. • This writ of certiorari procedure also applies to other sources of appellate cases such as those coming up through state supreme courts which can be appealed to the US Supreme court. - Example: US Supreme Court granted certiorari in several cases that involved product liability issues against generic drug manufacturers for failure to provide adequate warnings. · The US Supreme Court also acts as a trial court (original jurisdiction) in certain cases. o When one state is suing another state, the US Supreme Court becomes the states' trial court. - I.e. the water dispute among California, Arizona, Colorado, and Nevada has been tried over a period of years by the US Supreme Court. - Also handles the trials of ambassadors and foreign consuls (espionage charges) Structure · Consists of nine judges o Nominated as justices to the Court by the president and confirmed by the Senate, appointment is for life. o US Supreme Court justices are often labeled "conservative" or "liberal" o Makeup of the bench controls the philosophy and decisions of the Court

Conflicts of Law in International Disputes

The courts and judicial systems of countries around the globe vary, as do the procedural aspects of litigation. · Due to liberal discovery and recovery rules in the United States, many plaintiffs injured in other countries by products manufactured by U.S. based firms want to bring suit in the U.S. to take advantage of our judicial system's processes and rule.

Trade law and policies

The importance of ____________ ____________, tariffs and policies has increased directly with the rising of international business transactions.

The social contract

The law exists as the result of those who happen to be in power, that there is type of social contract that we mutually honor.

Characteristics of Law Pervasive

The law must be pervasive and cover all necessary areas but at the same time -Example: laws cover the formation, operation and dissolution of corporations

The Importance of Federal District Court Decisions:

The opinions of federal district judges are published in a reporter series called the Federal Supplement which provides excellent precedent for interpretation and application of federal statutes.

Long-Arm Statutes: The Tools of Minimum Contacts

These statues give courts the power to extend their "arms of jurisdiction" into other states. ______-_________ ___________ generally cover businesses with offices in the state, business shipping products into the state, and businesses that cause a tort to be committed in that state.

The European union

___________is a tariff free group of European countries that have joined together to enjoy the benefits of barrier free trade.

common law

came about as judges in different areas settled disputes in similar ways by consulting their fellow judges on their previous decisions before making decisions. (Where "state decisis" comes from)

Preliminary hearing-

prosecution presents evidence to a judge to indicate that the accused committed the crime.

Exclusive jurisdiction

means that only one court has the authority to hear the case. For example, federal district courts have ______________ ____________ over cases in which the United States has charged an individual or corporation with a federal crime Federal courts decide controversies among citizens of different states for reasons that go back to fears about state court judges giving preferential or favorable treatment to citizens of their state, as opposed to nonresident parties. · Federal courts do not rule under a different set of laws; they simply apply the state law in a different setting. · When corporations are parties to suits the citizenship of a corporation can be its state of incorporation or the state in which its principal office is located.

Initial Appearance-

once an arrest has been made, the defendant must have an opportunity to appear before a judicial figure within a short period of time (usually 24 hrs.) to be informed of the charges, rights, etc.

Appellant -

party appealing a case

Omnibus Hearing-

when the defense attorney wishes to challenge the prosecution evidence on grounds that it was obtained in violation of any of the constitutional protections.

Corporate crime:

white collar crime

The Appellate Level in the Federal System:

· Cases decided in federal district court and the specialized trail courts of the federal system can be appealed · Case are appealed to the U.S. courts of appeals · All of the federal courts are grouped into 13 federal circuits according to their geographic location o 11 of the circuits are geographic groupings of states; o The twelfth circuit is the District of Columbia o The thirteenth is a nongeographic circuit created to handle special cases such as those involving patent disputes and issues, and appeals from the Court of Claims and Court of International Trade. · Each circuit has its own court of appeals · The number of judges for each of the federal circuits varies according to caseload. o Most cases are heard by a panel of three of the circuit judges. o Rare for a case to be heard "en banc" (by the "whole bench," meaning all the judges in that circuit). - Example of en banc case following a three-judge panel decision involved a father's challenge to his child being required to recite the Pledge of Allegiance because the phrase "under God" was in the pledge: Elk Grove Unified School Dist. vs Newdow · An appeal consists of a record of the trail in the court below, briefs, and possible oral argument o The standard for reversal is reversible error. Since the right of appeal is automatic a full opinion is not given in every case. Cases that are affirmed, the opinion may consist of that one word. Other decisions are issued as memorandum opinions for the benefit of the parties, but not for the publication. · The opinions of the U.S. courts of appeals are published in the Federal Reporter - the system of citation is the same as for federal district court opinions

State Supreme Courts

· Similar in function and design to the U.S. Supreme Court. · Serve as Courts of original and appellate jurisdiction. · State Supreme Court decisions and opinions are reported in regional reporters. à Judicial opinions vary in their places of publication, but are formatted the same. à the concept of venue addresses the issue of the location of the court in the system. For example, a criminal case with heavy media coverage may be tried in a venue with less publicity to obtain an impartial jury. Skilling v. U.S., 130 S.Ct. 2896 (2010), the U.S. Supreme Court held that the heavy media coverage for Enron's former CEO Skilling was not enough to move his criminal case to another federal court outside of Texas.

The International Courts

· The decisions of _________ _____________ provide precedent for parties involved in international trade. · The International Court of Justice (ICJ) is the most widely known __________ ________________. It is made up of 15 judges, no more than 2 of whom can be from the same nation, and are elected by the General Assembly of the UN. The ICJ has contentious jurisdiction, meaning that they are only used when the parties of a dispute agree to bring the case to the ICJ. · Decisions of these courts can be found in International Law Reports · London's Commercial Court has become a popular forum for resolution of international commercial disputes. Most of their cases involve foreign enterprises. • Advantages: Neutral Forum, English Language, Wide Range of Experience in International Disputes, Judges were Commercial Litigators, Rapid Court Calendar, and Creative Remedies.

Sources of Law- very important

• 1. Constitutional Law - Exists at federal and state level • US Constitution - Appendix A • State Constitutions - can give more rights, not less • 2. Statutory Law at the Federal Level - Enactments of Congress • United States Code. Citation = (e.g., 15 U.S.C. § 77) 3. Executive made law - executive orders, signs treaties 4. Administrative agency regulations • Code of Federal Regulations. Cite or citation = C.F.R. (e.g., 12 C.F.R. § 226) 5. Court Decisions - Court provides interpretation

Purposes of Law

• Keeping Order • Influencing Conduct • Honoring Expectations • Promoting Equality • Law as the Great Compromiser

Theory of Law: Jurisprudence

• Natural Law: Inviolate principles, regardless of laws - human rights