Business Law

Legal Positivism

Legal Positivism

“You have to follow what the law says” (obedience)

Civil Law

Liability, The injured party wants money and compensation. Preponderance of the evidence

Common Law

Older law, Judges, Appellate court, Rule based off of what previous courts did

Is common law prospective or retrospective

RETROSPECTIVE

Stare Decisis

Let the Decision stand

Appellate court

Court of Appeals

Appellate court order

District→ Circuit→ Court of Appeals→ Supreme Court

Changes in Law

Laws are forever changing to adapt to a changing society

Do bystanders have an obligation to help

NO

Special Relationships to bystanders

Employers are obligated to help when present, Therapist-patient, Family, If it is your job ie: Lifeguard

Statutory Laws

New Laws, Enacted at all levels of govt. Citizens control these by electing representatives

Is statutory law retrospective or prospective

PROSPECTIVE

Why are bills proposed

New issues, Unpopular judicial rulings, laws must be in clear terms

Statutory Interpretation

Plain meaning rule, Public Policy, once law is implied the interpretation becomes precedent, PROSPECTIVE

Administrative Law

Administrative agencies

What levels of govt are admin. agencies located

ALL

Agencies

Make rules and regulations, created to fulfill needs, often have power in specific areas.

Enabling Legislation (agencies)

Govt gives money, Defines agencies power

Independent federal agencies

Not federal

Most powerful agency in VA

DMV

Power of Agencies

Legislative power (make laws) Interpretive power (interpret laws) Adjudicating Power (have their own judges)

Informal Rulemaking

Must be open to public Comment

Formal Rulemaking

Must have public hearing

Subpoena

MUST DO WHAT IT SAYS, relevant and under jurisdiction, can be issued by an agency

Limiting agencies power

Statutory Control

• Pass laws to limit

• Can withhold money

Political Control

• President can control

Judicial Review

• Court Review

FOIA

Freedom of Information Act

Request documents, request documents, citizen OR non-citizen resident

Privacy Act

Prohibits agencies from giving info without consent

Constitution Law

Supreme law of the land, strict scrutiny, intermediate scrutiny, minimal scrutiny

Congressional Power Article 1

Commerce Rule: can regulate any activity that has an effect on international commerce

Supremacy Clause

Federal> State> Local

Executive power Article 2

Nominate judicial candidates, Oppose legislation, set foreign policy

Marbury vs Madison

Gives power to the court for judicial review

Freedom Of Speech

Congress shall pass no laws abridging the freedom of speech

FOS acceptions

Time Place and Manner, Obscenity, Commercial Speech

Private Property

Controlled by the owner, Govt issues an injunction to make them abide

During working hours, employers can limit your freedom of speech

true

Due Process

Life liberty and property, cannot be taken without due process

Govt cannot take your property without compensation

Correct

Taking Clause

Cannot take private property for public use without compensation

Strict Scrutiny

Race, Ethnicity, Religion, and Fundamental Rights

Minimal Scrutiny

Economics and Social Regulations

INTERMEDIATE SCRUTINY

Gender (grey area) First woman to apply for cadets sues because university was receiving public funding

14th amendment

All laws to be treated equally

Three areas of law

Court System, ADR, Civil Lawsuits and Litigations

Benefits of ADR

Quicker, cheaper, private, keeps parties talking

Negotiations (ADR)

Offers and counter-offers for a settlement

Mediation (ADR)

Neutral party, Mediator does not render a decision, NON-BINDING

Arbitration (ADR)

Neutral Part, DOES render a decision, IS BINDING

Subject Matter Jurisdiction

Able to hear that type of case

Personal Jurisdiction

Minimum personal contact with the state

All courts need

Jurisdiction

International Shoe vs Washington

Didnt have an office in Washington so didnt want to pay taxes on shoes there. Had minimum contacts in Washington so they had to pay taxes. (personal Jurisdiction) (long arm statue)

Federal Court System (jurisdiction)

US constitution, DIVERSITY OF CITIZENSHIP (two different states and over 75,000)

State court system

Concurrent Jurisdiction

Is new evidence presented when appealing in court, after circuit court level?

NO

Only court in VA that can have jury trial

Circuit

Litigation Order

Statement (short and simple) → Answer (reply to allegations)/ Possible counterclaim → Possible reply

Summons

Served with legal documents, Technically do not need to do anything

Discovery

Both sides uncover evidence, everything is known, encourages a settlement

Interrogatories

Written question that the other parties must answer under oath

Depositions

Interviews given under oath (usually videotaped)

Sanctions

Dismissal of Lawsuit

Class action

Multiple people represented by plaintiff

Default Judgement

Happens when you don’t answer a summons

Summary Judgement

Both parties agree on all facts. Ask judge to apply the law

Motion in Limine

Exclude evidence from trial

Voir Dire

Speak the truth

What must be present in a criminal case

Govt must prove beyond reasonable doubt

What did VA adopt

Rules of evidence

What must VA jury decisions be

Unanimous

When can you settle a case

Anytime

Natural Law

Any bad law that does not need to be followed

Legal Realism

Combination of legal positivism and Natural Law

Hampton Sydney vs VT

Strict Scrutiny (Gender)

Concurrent Jurisdiction

Either Federal or State can hear case

Injunction

Court orders you to do or not do something

Equity

Above injunction (court has equitable power)