legal env. midterm

test #1 legal environment of business

three branches of the US government

legislative, executive, and judicial

article 1

legislative branch

article 2

executive branch

article 3

judicial branch

what does article 1 provide

consists of the house of rep and congress, together forms the senate

house of rep. rate

1 per 35,000 residents

senate rate

2 per state

article 1 responsibility

creating laws

what does article 2 provide

enforcement of laws, led by the president

under article 2 the president can

veto laws passed by congress and issue executive orders

article 2 responsibility

negotiation and agreement of international treaties, and appointments to certain roles

what does article 3 provide

the supreme court and inferior courts

federal courts

disputes between 2 states, involving citizens of 2 states where over $75k is disputed, and violation of constitution

original jurisdiction

first hearing of case, usually review of trial court

appellate jurisdiction

review for clear error of fact of erroneous application of law

supreme court justices

Roberts, Thomas, Barrett, Jackson, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh

primary theory of judicial philosophy (strict constructionist)

when judges strictly interpret the law, clinton valley

second theory of judicial philosophy (statutory constructionist)

when judges interpret the law and apply the spirit of the law rather than the exact interpretation, soldano, flagiello, and tarasoff

plaintiff

the person who brings the civil suit into court of law, must prove they have been injured by others, only used in civil cases.

defendant

person who must defend against a civil suit, can be a person, company, institution, or government entity.

appellant

the party that is appealing the decision of the original court to another court

appellee

the party against whom the appeal is taken, defending the appeal and seeking to have the lower court’s decision upheld

common law

often referred to as judge-made law. provides uniformity across the legal system through interpretations of constitutional provisions, statues enacted by legislatures, and regulations created by administrative agencies

statutory law

passed by legislative bodies such as congress or state legislatures, cannot violate constitution, ex: speed limit

federal law

a body of law at the highest level, consisting of a constitution, enacted laws and the court decisions pertaining to them.

state law

the law of each separate state

uniform law

a model law that if adopted by the state becomes statutory, state has the option to adopt or reject all of the law or only a part of it. ex: uniform commercial code

federal court

only hears cases authorized by constitution or federal statutes. They hear cases in which the US is a party, violations of the U.S. constitution or federal laws, cases between citizen of different states.

state court

cases individual citizens are most likely to be involved in - robberies, traffic violations, broken contracts, and family disputes.

civil law

a body of rules that delineate private rights and remedies, and govern disputes between individuals/companies in such areas as contracts and property.

criminal law

involves prosecution by the government of a person for an act that has been classified as a crime/an act that has “harmed society”

substantive law

laws that address acts as a right or wrong

procedural law

comprises the set of rules that govern the proceedings of court system. Procedural law are the rules that ensure fairness in the process.

legislative law

the body of law enacted by legislative bodies

administrative law

rules and regulations passed by an administrative agency that has been established by US Congress. Ex: EPA setting 55mpg capability

federal vs state law

federal law trumps

state vs state law

whatever state the injury occurred in

stare decisis

let the prior decision stand, ex: clinton valley

standing

right for the impacted party to file a lawsuit or petition under the circumstances

summary judgement

a motion requesting the court to enter a judgment proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute. No factual dispute between parties, only dispute is how the law should be applied.

unanimous decision

all justices agree (9-0)

split decision

at least one justice voted for the other choice

dicta

comment made by a judge in a decision or ruling which is not required to reach a decision; may be cited but cannot have full force of a precedent.

holding

the legal outcome/decision of the case; binding; carried out by future judged

concurring opinion

judge writes an opinion that agrees with the majority

dissenting opinion

judge writes an opinion against what the majority of the judicial panel decided.

what court heard the Soldano case

Court of Appeals of California

legal issue in Soldano case

is there a duty to help a person in need or to take action to prevent injury to a person in need

holding of Soldano case

there is a duty to help a person in need, particularly where such help will occur to another party

rationales for Soldano decision

special relations require someone to help as a duty to someone in danger, legislative action supports other in need, and the 7 factor test that determined if someone has a duty to aid someone in need.

what court heard the Edwards case

Michigan Court of Appeals

legal issue in Edwards case

does governmental immunity for state health facilities exempt Clinton Valley Center from any and all liability

holding for Edwards case

yes, stare decisis

rationales for Edwards case

stare decisis

what court heard the Flagiello case

Supreme Court of Pennsylvania

legal issue in Flagiello case

does the charitable immunity doctrine exempt the state charitable organization from liability

holding of Flagiello case

the court held the law to be outdated and abolished it for the State of Pennsylvania

what court heard Tarasoff case

California Supreme Court

legal issue in Tarasoff case

does a therapist have a duty to exercise reasonable care in determining whether to warm a third party of potential harm

holding of Tarasoff case

yes

rationales for Tarasoff case

special relationships, therapist did not act reasonable, interdependent society, better to break therapist/patient confidentiality to save a life

why is the understanding and use of ADR important for business managers

less expensive that litigation, more efficient than litigation, more flexible, more private, more likely to preserve the business relationship between parties.

positional negotiation

when settling a dispute negotiating to be adversarial, seeking the max benefit, and with no compromises.

principled negotiation

when settling a dispute negotiating is through communication, keeping relationships intact, options, creativity, and alternatives.

positional vs principled negotation

extreme and results in clear winner vs compromise

what are the five dispute resolution options

litigation, arbitration, mediation, negotiation, and med-arb.

process of litigation

file a complaint, file an answer, file a motion for Summary Judgment, discovery, trial, judge issues their decision, losing party may appeal case, enforcement of judge’s decision

three stages of litigation/trial

complaint, service of process, and answer

discovery

gaining access to witnesses, documents, records, other evidence

pretrial conference

informal discussion between judge and attorneys to explore possible settlement

7th amendment right

right to jury trial

jury selection

each party may challenge a certain number of prospective jurors without reason

opening statements

setting forth facts to prove

hearsay

testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement

motion for a new trial

verdict is obviously the result of a misunderstanding of the evidence by the jury, newly discovered evidence, misconduct by juror.

appeal

filing an appellate brief

writ of execution

order directing the sheriff to seize and sell defendant’s assets/property to pay money owed

benefits of litigation

can outspend the opposing party, accessing the judicial system with its developed rules, rights and processes, decisions are binding and enforcement is guaranteed, no compromises, sense of justice, judged by peers, makes public statement or new law.

arbitration

three party process, two disputing parties and one decision maker, decision is binding and called an award, arbitrator is either agreed upon by both parties or court appointed, typically ex-judges or attorneys with legal expertise

mediation

three party process, two disputing parties and one neutral third party acting as a mediator, works with both sides in the dispute to facilitate a resolution

independent mediator

no relationship with the parties

social network mediator

from the community

authoritative mediator

mutually respected and/or with power over each of the parties

commerce clause

congress shall have the power to regulate commerce with foreign nations, and among the several states, and with Indian tribes. Allows congress the authority to regulate interstate commerce which causes state lines.

commerce clause taxing authority

congress shall have the power to lay out and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the US so long as the proposed tax has a reasonable basis.

article 4

generally proves a national framework for citizenship/commerce

article 4 section 1

all courts and states must acknowledge the debts, contracts, and all judicial decisions of other states

article 4 section 2

prevents a state from imposing unreasonable burdens on a citizen of another state

article 5

amendment must be proposed by federal congress and requires 2/3 of house and senate vote, then must be ratified by 3/4 of all states

article 6

federal law is supreme over state or local laws/ordinances and contracts, international treaties take precedence over state laws and contract provision

1st amendment

freedom of press, speech, and religion

2nd amendment

the right to bear arms, was originally to help people organize local militias to repel invasion

4th amendment

protects the right of people to be secure in their persons, houses, papers, and effects, requires law enforcement to obtain a search warrant from a judge

14th Amendment (Equal Protection)

law must be rationally connected to a permissible or legitimate \n government objective

Quasi-strict scrutiny test

law must be substantially related to an important government interest

Strict Scrutiny test

The law must be necessary to advance a compelling state interest, applied to laws addressing a suspect class or a fundamental right

Suspect class

\n class that has disabilities, has been subjected to a history of \n purposeful unequal treatment, OR has been placed in a \n position of political powerlessness

Purpose of Enabling Act

An “Act” or law/statute that is passed by Congress & which includes an enabling mandate that empowers the applicable agency to act within a certain scope of power or purpose

Executive Agencies

Assist the president to carry out executive tasks with the expertise of the agencies, with a single director/chairman who is appointed by the President who can also be removed by President at any time and for any reason \n

Independent Agencies

Agency created by congress via ‘an enabling statute’ which provides a mandate and scope of authority (example = creation of Environmental Protection Agency by congress “to promote the protection and sustainability of the environment”)