Business Law Exam #1
all laws create classifications
some people are benefitted by a law and some are burdened
constitutions prevail over statutes
statutes prevail over judicial decisions
attempts to suppress commercial speech...
subject to intermediate scrutiny
if a state action creates classifications based upon sex, gender, or legitimacy...
subject to intermediate scrutiny
what document regulates the lives of citizenry?
the Bill of Rights
what document gives the right to trial by jury?
first arises in the Magna Carta
commerce clause
gives Congress the broadest authority to regulate commerce among the states and business
strict scrutiny
government will almost always lose the case
rational relationship
government will almost always win
intermediate scrutiny
government wins about half
define venue
has the suit been filed in the proper territorial area?
2 reasons president can be impeached
high crimes and misdemeanors
jury in civil matters?
in some states, the plaintiff must request and pay a fee for a jury trial
who is the plaintiff in a criminal prosecution?
the State or Federal government
supremacy clause
the US Constitution and the laws made thereunder are the supreme law of the land
trial judges
preside over trials. they hear testimony and make evidentiary and other legal rulings. trial judges exercise original jurisdiction over disputes and act as protectors of constitutional limitations and guarantees of litigants
define discovery
procedures to uncover facts known or held by the adverse party, ensures all of the evidence is available to both parties
voir dire
questioning a prospective juror looking for bias
examples of suspect classification:
race, religion, alienage, national origin, ethnicity
define personal jurisdiction
the ability of the court to compel the appearance of the parties in court and impose a remedy on the defendant
where state action affects social welfare and/or economic matters...
the action is subject to rational basis scrutiny
US and State Constitutions
the basis of the legal system. they represent supreme law
horizontal division of powers
the branches of government have separate functions and may exercise checks and balances over the other branches
venue is proper where...
the case arose or where the defendant lives
define legal realism
the development of the law is shaped by social and technological forces
international law
the dispute involves the interests or agreements between more than one nation
national law
the dispute involves the law of a particular nation
private law
the dispute is between private individuals
vertical division of powers
the federal government has limited authority to interfere in state matters
public law
the government is involved in the dispute
due process
the government may not deprive a person of life, liberty, or property without due process of law
if a state action creates a suspect classification or infringes a fundamental right...
the government's action is subject to strict scrutiny
define private law
the injured party seeks to recover for an injury from the party causing the injury
if the plaintiff seeks a legal remedy...
the matter was filed in a law court (money)
federal powers:
regulate interstate and international commerce, borrow money on the credit of the US, establish bankruptcy laws, issue patents and copyrights
state powers:
regulate public safety, health, welfare and morals, allow state to regulate business
appellate judges
review trial proceedings for errors of law or facts which prevented a litigant from receiving a fair trial. rarely deal with litigants.
how many justices does it take to decide a case will be heard by the Supreme Court?
4
examples of public law
Constitutional law, Administrative law, and Criminal law
examples of private law
Contracts, Torts, Property
diversity of citizenship jurisdiction requires the plaintiff to claim an injury under federal law or an invasion of a constitutional protection
false
in general, states do not allow quotient verdicts by juries
false
define law
a body of enforceable rules which govern relationships among and between individuals and society
define complaint
a document containing a statement of the plaintiff's reasons for suing the defendant
if the remedy at law was inadequate...
a litigant may seek a remedy in equity
define directed verdict
a motion which asks the court to rule in its favor as a matter of law
who is the plaintiff in a civil prosecution?
a private entity: a person, a group, or a business
define voir dire
a process by which the judge and counsel examine a prospective juror to determine fairness and impartiality
define judgement notwithstanding the verdict
a reasonable jury would not have reached the result based upon the evidence
define natural law
a system of ethics and morals inherent in human nature
in the American legal system, judicial pronouncements have greater authority than legislative acts
false
What does legislation include?
acts and orders of legislative bodies: Congress, state legislatures, city councils
reviewing courts issue opinions which affect society as a whole by...
affecting similar cases in the future
name three votes for the appellate court
affirm, reverse, or remand
define procedural laws
allow institutions to control their internal functions
define remedy
allows a litigant to enforce or to be compensated for an injury to a right or privilege
define long-arm statute
allows the court to exercise jurisdiction over an out-of-state defendant if it comports with notions of fairness and substantial justice. the defendant must have sufficient minimum contacts with the forum state
appeals to Circuit Courts...
are by right
appeals to the Supreme Court...
are by writs of certiorari
active commerce clause
are the goods moving in interstate commerce or is the intrastate activity, in the aggregate, likely to have a substantial impact on interstate commerce?
legislative acts and judicial pronouncements are examples of procedural laws
false
number of Representatives...
based on decennial census
number of Senators...
based on two per state
other legislative acts must...
be consistent with the Constitution or be rendered void
burden of proof in a criminal trial
beyond a reasonable doubt
what do appellate judges study?
briefs, the trial record, and evaluate oral arguments to reach their decisions
remedial statues are...
broadly construed
the government cannot suppress free speech...
but speech may be subject to reasonable time, place, and manner restrictions
how is jurisdiction over the defendant accomplished?
by serving a summons
the doctrine of Separation of Powers allows the federal government unlimited authority to intervene in the affairs of state governments
false
define common law
came from England. rules and analytical methods used by judges became law
define peremptory challenges
can dismiss a juror just because, judge cannot overrule and other side cannot object
define civil law
civil law countries have codified their laws
burden of proof in a civil case
clear and convincing and preponderance of the evidence
defin substantive law
create rights, duties, and privileges consistent with public policy at the time of enactment
the principal of judicial review, the submission of laws and acts to the courts for constitutional examination is mentioned in the Constitution under Article III
false
trial judges must consider the impact of their decisions on society as a whole
false
define answer
defendants response to plaintiff's allegations and any defenses available to the defendant
procedural due process
did the individual have notice of the intended deprivation; was there a hearing before the action was taken; did the individual have an opportunity to appeal an unfavorable disposition of the hearing?
civil law
does public policy consider the wrong as one against an individual
criminal law
does public policy consider the wrong as one against society as a whole
uniform state laws
enacted by the federal government or proposed by the NCCUSL
procedures for equity courts to decide cases:
equity will not suffer a right to exist without a remedy, where there is equal equity law must prevail, those who come into equity must do so with clean hands
English Common Law evolved from the Norman Conquest of 1215 AD
false
Procedural laws create rights and duties but not privileges
false
all states have an intermediate court of appeal between the trial and supreme courts
false
appellate judges actively question litigants before making a decision in a case on appeal
false
types of equitable remedies:
injunctions, decrees, specific performance
equitable remedies:
injunctions, decrees, specific performance, rescission/reformation of a contract, etc.
define privileges and immunities clause
intended to protect nonresidents from discrimination by the states in the nonresident's dealings with residents
define public law
involves cases or controversies involving a legislative body as a party or as the administrator of a legal process
substantive due process
is the deprivation fair to the individual
rational relationship
is the government's action rationally related to a legitimate exercise of governmental authority
strict scrutiny test
is the state's action necessary to accomplish a compelling state interest and is it the least burdensome means to achieve that interest?
intermediate scrutiny
is the state's action substantially related to an important governmental interest?
if a power to be exercised by Congress cannot be found in Article 1 section 8...
it is automatically found unconstitutional
define full faith and credit clause
judicial acts and rights secured in one state are honored in all states
what are three great powers judges have in our system?
judicial review; interpretation of statutes; and creation of law thru precedent
each court must have jurisdiction over two things in order to hear the case
jurisdiction over the subject matter and the litigants
define cross examination
leading questions are permitted. adverse witnesses are subject to cross examination
two types of remedies
legal or equitable
appellate court reviews...
legal questions and factual errors which amount to errors of law
examples of substantive law
legislative acts and judicial pronouncements
name two options for the losing party
move for a new trial, or for a judgment notwithstanding the verdict
attempts to suppress political speech...
must pass strict scrutiny
criminal and taxing laws are...
narrowly construed
define direct examination
no leading questions are allowed. a party subjects its witnesses to direct examination
can standing ever be waived?
no, it is always at issue
define quotient verdicts
non-unanimous verdicts
inherent problem in case law:
not compiled in a coherent fashion, the sheer volume means most lawyers do not know the law at any given time. precedents conflict and may be cited by opposing lawyers in a particular case
opening statements are...
not part of the trial. propaganda.
define stare decisis
once a case has established a precedent, it should be followed in subsequent cases involving the same issues
equal protection
people who are similarly situated must be treated similarly before the law
two components of jurisdiction
personal jurisdiction and subject matter jurisdiction
define legal positivism
posits the only rights we have come from the state
define appellant
the party bringing the appeal
define appellee
the party responding to the appeal
if a legal remedy was considered inadequate...
the plaintiff sought an equitable remedy
define judicial review
the power of the judiciary to review the actions of the other branches and to set them aside if in violation of the Constitution
define jurisdiction
the power to hear the case and grant a remedy
a bill is not a law until...
the president signs it
which state's laws apply when a transaction involves more than one state?
the substantive law of the appropriate state may be used in a foreign jurisdiction, but the forum may use its procedural laws.
if a criminal jury is less than twelve jurors...
the verdict must be unanimous
what is the function of the jury?
to decide which party has met its burden of proof on a question of fact
why do legal systems evolve?
to encourage and promote stability and order
define standing
to maintain a law suit, the plaintiff must have a stake in the outcome
why do courts exist?
to provide resolution to disputes which cannot be settled by an agreement between the parties
Preemption Doctrine
to the extent the two regulations overlap, the federal law applies
discovery is a process for uncovering facts held by the adverse party
true
laws are enforceable rules protecting one's protected interests
true
private law allows an injured party to seek recovery directly from the party alleged to have caused the injury
true
purposeful injection of a business into the forum state by television advertising can serve as sufficient minimum contacts for long-arm jurisdiction
true
state and federal constitutions create governments of three co-equal branches with separate functions
true
state trial courts are courts of general subject matter jurisdiction
true
the admissibility of evidence at trial is a matter of law in the control of the judge
true
the jury decides which party has met its burden of proof on questions of fact
true
under early common law, the laws and doctrines were rules and methods of analysis used by courts to resolve disputes brought before them
true
common law courts are bound by stare decisis...
unless a court decides a precedent should no longer be followed
dormant commerce clause
used to prevent one state from discriminating against business emanating from another state
diversity of citizenship exists...
where all of the plaintiffs reside in states different from those of all the defendants
what do trial judges study?
witnesses and use their experience to prepare for their decisions