Legal Foundations and Strategic Thinking in Law

bill

A draft or proposed statute that a legislature has not yet passed or the executive has not yet approved.

statute

A law created by a legislative body, such as Congress or a state legislature.

ordinance

A law passed by a local government (e.g., city or county) that typically regulates local issues like zoning, noise, and public safety.

common law

Law made by courts based on previous cases with similar facts, applied when there is no specific statute or regulation governing the issue.

administrative law

Law that governs the activities of administrative agencies, which have the authority to create regulations, enforce laws, and make policy in specific areas.

substantive law

Law that defines the rights and duties of individuals and organizations.

procedural law

Law that outlines the rules for enforcing rights and duties in court.

U.S. common law system

A legal system derived from the English legal system.

criminal prosecution vs civil suit

A person can be prosecuted criminally (by the government) and sued civilly (by a private party) for the same act.

money damages

A monetary award to compensate for loss.

specific performance

A court order requiring a party to fulfill their contractual obligations.

primary sources of law

Sources that include constitutions, statutes, regulations, and case law, which have binding authority.

secondary sources of law

Sources like legal treatises and restatements that provide commentary and analysis but are not legally binding.

South Dakota v. Wayfair, Inc. (2018)

The U.S. Supreme Court ruled that states can require online retailers to collect sales tax even if they don't have a physical presence in the state.

categorical imperative test

A test from Kant's duty-based ethics that asks: 'What if everybody took the same action?' It focuses on whether an action is universally acceptable.

broadcast news test

A test used in ethical decision-making that asks: 'How would I feel if this decision were announced on the news?'

Lady Justice

Represents fairness, impartiality, and the enforcement of laws.

morals

Generally accepted standards of right and wrong in a society, often based on law, religion, or personal beliefs.

Friedman's narrow view

Argues that a corporation's only responsibility is to maximize shareholder wealth.

Moderate view

Focuses on complying with the law.

Broad view

Emphasizes ethical values, social responsibility, and environmental sustainability.

Reporting obligations under values management program

Employees must report violations of the law or the company's code of ethics to a superior manager, in-house legal counsel, or the compliance department.

Compliance department

A unit within an organization that ensures the company follows rules and regulations and maintains ethical standards.

Principles-based approach

Focuses on universal moral principles (e.g., Kant's categorical imperative).

Consequences-based approach

Focuses on the outcomes of actions (e.g., utilitarianism).

Contract-based approach

Focuses on fairness and agreements between parties (e.g., John Rawls' 'veil of ignorance').

Triple bottom line

A framework that evaluates a company's performance based on three factors: economic value, environmental impact, and social responsibility.

John Corzine's environment at MF Global

Created a high-risk environment that lacked proper internal controls and ethical oversight, leading to the company's collapse.

Bill of Rights

There are 10 Amendments in the Bill of Rights.

Preamble of the U.S. Constitution

Outlines the purposes of the Constitution, including forming a more perfect union, establishing justice, and securing liberty.

Legislative branch power to impeach

The legislative branch (Congress) has the power to impeach and remove officials, including the president and federal judges.

Rational basis test

Applies to most economic regulations and tax laws.

Intermediate scrutiny

Applies to gender discrimination cases.

Strict scrutiny

Applies to cases involving fundamental rights or suspect classifications (e.g., race).

Equal Protection Clause

Found in the 14th Amendment.

Articles establishing branches of government

Article I: Legislative branch; Article II: Executive branch; Article III: Judicial branch.

Power to declare war

Only the federal government has the power to declare war.

Intrastate commerce regulation

The federal government can regulate intrastate commerce if the activity, in aggregate, has a substantial economic effect on interstate commerce.

Search occurrence (Fourth Amendment)

A search occurs when the government violates an individual's reasonable expectation of privacy.

Originalism

The Constitution's meaning is fixed and should be interpreted based on the original intent or understanding of its framers.

Living Constitution

The Constitution is dynamic and should be interpreted in light of contemporary values and circumstances.

Precedent setting courts

Appellate courts, including the U.S. Supreme Court and state supreme courts, set precedent.

Trial court decisions

Trial courts render decisions that are binding only on the parties involved in the case.

Venue

Venue refers to the most appropriate location for a trial, typically based on where the defendant resides or where the crime occurred.

Change of venue request

A defense attorney might request a change of venue in high-profile cases to ensure an impartial jury, especially if there has been extensive media coverage in the original location.

Federal judges appointment

Federal judges are nominated by the President and confirmed by the Senate.

Subject matter jurisdiction

Subject matter jurisdiction refers to a court's authority to hear cases of a particular type or cases involving specific subject matter.

Personal jurisdiction

Personal jurisdiction refers to a court's authority over the parties involved in a case.

Zippo sliding scale

Passive websites: No personal jurisdiction. Interactive websites: Case-by-case basis. Integral to business model: Minimum contacts established.

Criminal case venue

Venue is ordinarily located where the crime was committed.

Long-arm statute

A long-arm statute allows a court to exercise jurisdiction over an out-of-state defendant who has sufficient minimum contacts with the state.

Plaintiff vs. Defendant

The plaintiff is the party who brings a lawsuit, while the defendant is the party being sued.

Persuasive authority

A court can look to persuasive authority, such as decisions from other jurisdictions or secondary sources like legal treatises, when it encounters a case of first impression where there is no binding authority.

Clemens v. McNamee ruling

The court ruled that McNamee did not have sufficient minimum contacts with Texas to establish personal jurisdiction in a defamation case.

Depositions

Oral questioning of witnesses under oath.

Interrogatories

Written questions to be answered by the parties.

Requests for production

Requests for specific documents or evidence.

Requests for admissions

Requests to admit or deny specific facts.

Motion to dismiss

Requests dismissal of the case due to procedural defects.

Motion for summary judgment

Requests judgment in favor of one party without a trial.

Motion to compel discovery

Requests the court to order the other party to comply with discovery requests.

Motion to dismiss for mistrial

Requests the trial be stopped due to extraordinary circumstances.

Motion for judgment as a matter of law

Requests the court to overturn a jury verdict.

Default judgment

The court may enter a default judgment against the defendant if they fail to respond to the complaint and summons in a civil case within the proper time limit.

Mediation

Mediation is a form of alternative dispute resolution where a neutral third party helps the parties reach a settlement.

Counterclaim

A counterclaim is a claim by the defendant against the plaintiff.

Cross-claim

A cross-claim is a claim by one defendant against another defendant or third party.

Bench trial

A bench trial is a trial where the judge, rather than a jury, decides the case.

Voir dire

Voir dire is the process of questioning potential jurors to ensure they are impartial.

Binding arbitration

Binding arbitration is a form of alternative dispute resolution where the arbitrator's decision is final and enforceable in court.

National Football League Management Council v. Brady (2016)

The court ruled in favor of the NFL, upholding the arbitration award and rejecting Brady's arguments that the arbitration process was unfair.

Kelo et al. v. City of New London, Connecticut, et al.

The government can take private property for economic development as a public use.

United States v. Ulbricht

Bitcoin transactions are considered financial transactions under money laundering laws.

Wilcox Investment, L.P. v. Brad Wooley Auctioneers, Inc. et al.

Specific performance was appropriate because money damages were inadequate.

South Dakota v. Wayfair, Inc.

States can require online retailers to collect sales tax even without a physical presence.

Grimshaw v. Ford Motor Company

Ford was liable for punitive damages due to its unethical decision-making.

Ford v. Punitive Damages

Ford was liable for punitive damages due to its unethical decision-making.

Brooks Brothers Group v. Bubbles by Brooks

The case was dismissed after a settlement, highlighting the importance of ethical litigation practices.

MF Global Report

The report criticized John Corzine's leadership and recommended stricter regulations.

Wickard v. Filburn

The federal government can regulate intrastate activities that substantially affect interstate commerce.

U.S. v. Lopez

The Gun-Free School Zones Act exceeded Congress's Commerce Clause authority.

National Federation v. Sebelius

The individual mandate was upheld under Congress's taxing power.

Caniglia v. Strom

The 'community caretaking' exception does not apply to searches of homes.

Goodyear Dunlop Tires v. Brown

The foreign subsidiaries did not have sufficient contacts with the forum state.

Clemens v. McNamee

McNamee did not have sufficient minimum contacts with Texas.

Franklin v. Facebook

The forum selection clause was valid and enforceable.

Shisler v. Sanfer Sports Cars

The website did not establish sufficient minimum contacts.

In re Subway Sandwich Litigation

The settlement did not provide meaningful benefits to the class.

Hernandez et al. v. Yellow Transportation

Hernandez did not establish a valid claim for racial harassment.

American Express v. Italian Colors Restaurant

Arbitration clauses must be enforced even if the cost of arbitration exceeds potential recovery.

NFL Management Council v. Brady

The arbitration award was upheld, and Brady's suspension was enforced.

Chapter 1 Summary

Focus on the basics of law, including statutes, common law, and the role of courts.

Chapter 2 Summary

Understand ethical decision-making frameworks and corporate social responsibility.

Chapter 3 Summary

Know the structure of the Constitution, the Commerce Clause, and key Supreme Court cases.

Chapter 4 Summary

Focus on jurisdiction, venue, and the Zippo sliding scale.

Chapter 5 Summary

Understand the litigation process and alternative dispute resolution.