blaw exam 1

jurisprudence

the science of law

what is the function on law?

a pervasive instrument of social control whose function is to regulate, within limitations, human conduct and human relations

law attempts to

set rules that balance the individual and group rights of a society

defintion of law (star)

english jurist Blackstone defined law as “a rue of civil conduct prescribed by the supreme power in a state, commanding what is rights, and prohibiting what is wrong

functions of law

1.) maintain stability in the social, political, and prohibiting what is wrong 2.) protect private ownership of property and to assit in the making of voluntary agreements 3.) preservation of the state

nature of law (star)

evolves slowly; people change

laws and morals

law is greatly affected by moral concepts, however, law and morality are not the same. there are ideas that are both moral and legal, yet many rules of law are completely unrelated to morals, many moral concepts not enforced by law (ex: nazi actions)

law and justice

separate and distinct concept, although without law, there can be no justice in the sens of fair, equitale, and impartial treatment of competing interests and desires with due regard for the common good. (ex: in criminal law, victim may not feel justice was served)

rights (star)

is the capacity of a person with the aid of the law to require another person or persons to perform or refrain from performing certain act

duty (star)

the obligation imposed by law upon a person by which he or she is required to perform a certain act or to refrain from performing a certain act

rights vs duties (star)

when one person has a right, another has a corresponding duty.

procedural law

states the rules for enforcing rights that exist because of substantive law. deals with rules (like notice of a hearing)

substantive law

creates, defines, and regulates legal rights and duties. what is the law; penalties

private law

that part of substantive law that deals with the governing individuals and legal entities in their relationships with one another.

what does public law consist of?

consitutional, administrative, and criminal law

business law is primiarly ____ law

private

public law

branch of substantive law that deals with the governement’s rights and powers and its relationship to individuals or groups

civil law

law dealing with the rights and duties of individuals among themselves and is part of private law

criminal law

law that involves offenses against the entire community and is a part of public law

in a civil action

the injured party (platiff) begind a lawsuit (sues) to recover compensation for the damages resulting from the defendant’s wrongful conduct

civil law - private law

rights and duties of indivduals among themselves; injured party (plantif) sues to recover compensation for damages caused by defendant. plantiff has burden of proof - must prove by proponderance of evidence. civil law - relief is usually in form of money damages and decrees ordering a defendant to perform an act or to stop performing an act

criminal law - public law

offenses against the entire community; government brings a crimnial proceeding - prosecutes - a person accuse of a crime; must; prove guilty beyond a reasonable doubt; prinicpal sanctions - prison, fines, death sentence (capital punishment)

the government must prove criminal is

guilty beyond a reasonable doubt, a higher proof than that required in a civil action.

if a criminal is proven to be guilty beyond a reasonable doubt, the principal sanctions are

capital punishment, imprisonment, and fines

sources of law (star)

federal and state constitutions, federal treaties, interstate compacts, federal and state statutes, oridances of countless local municipal governments, executive order, the rules and regulations of federal and state administrative agencies, and reported federal and state court decisions

from where does the law come? (star)

the us consitution is the supreme law of the land

us constitution specifies

rights and liberties of people

the constitution allocates

power among levels of government; us has 3 branches of govt (judicial, executive, legislative)

three branchs of us givt (star)

judiciary, legislative, executive

judicial review allows

court to review acts of legislative and executive branches to see if constitutional

the us constitution is the supreme law of the land;

federal laws and courts decisions are paramount to state constitutions and laws; then state statues and case law

stare decisis

“to stand by the decisions” and is the principle that courts should apply rules decided by them or by courts superior to them in prior, substantially similar cases

equity

a body of law based upon prinicples distinct from common law and providing remedies not available at law

equity developed bc

common law in england became overly rigid and beset with technicalitlies and law courts could provide only limited remedies usually in the form of money damages. individuals who could not obtain adequater relief from monetary awards began to perition the king directly for justice

state constitutions can

give more rights than us constitution but cannot deprive a citizen of rights

common law - from england

relies on court decisions; developed by stare decisis - principle that courts should apply rules decided by them or by superior courts in similar cases; equity - provides remedies not always available at law, like reforming or rescinding a contract

reformation

is an equitable remedy rewriting a contract to conform to the original intent of the contracting parties

rescission

is an equitable remedey invalidating a contract

restatements

scholarly writings; influential but not the law

legislative

primary source of new laws; statutes like the UCC - for uniformity in business

the emphasis on legislative or statutory law has occured because common law is not well suited to

making drastic or comprehensive changes

many areas still governeed by common law like

contracts

treaties

an agreement between or among independent nations. the us constitution authorizes the president to enter into treaties with the advice and consent of the senate provided that 2/3 of the senators present concur

executive orders

a law issued by the president of the us or by the govenor of a state

administrative law

agencies like FBI, DPS, IRS. complex rules and regulations to carry out agency powers and duties. branch of public law created by administrative agencies in the form of rules, regulations, order, and decisions to carry out the regulatory powers and duties of those agenies

four important points to remember when reading legal opinions are

1.) court must decide the specific legal dispute before it 2.) a court can decide only the specific legal dispute before t 3.) a court can decide the legal dispute before it according to general rules that cover the whole class of similar disputes 4.) everything stated in the pinion must be read regarding the legal dspute

what is a crime? (star)

a criminal proceeding against (prosecutes) a person accused of committing a crime. a _____ is any act prohibited or omission required by public law in the interest of protection of the public and made punishable by the government in a judicial proceeding brought by it

common law (star)

is called case law, judge-made law, or common law. in order to evolve in a stable and predictable manner, the common law developed by an application of stare decisis. stare decisis is the principle that courts should apply rules decided by them or by courts superior to them in prior, sustntially simialr cases

know stare decisis

courts should apply rules decided in previous cases

equity

provided remedies not available at law

crime

act prohibited or omission reqirued

common law

determined from judicial decisions

leegislative law

primary source of new law

treaties

entered into by the president

legal analysis

person appeals a lower court desicion (appellant); decisions are reported

how to read legal analysis

86 P. 3d 689 (2001) [86 - volume #, P. - pacific reporter, 3d - series, 689 beginning page, (2001) - year decided

Although the law is greatly affected by moral concepts, morals and law are not the same.

T

In a civil trial, the plaintiff must show that the defendant is guilty beyond a reasonable doubt.

F

A state statute may be valid even though it violates the federal constitution.

F

The courts of equity arose to provide relief to those who had no adequate remedy at common law.

T

Over the past century, the emphasis in law making has shifted from legislatively enacted (statutory) law  to judge-made (common) law.

F

A constitution is a fundamental law of a particular level of government.

T

Because of the many statutes enacted by the legislatures of the states and by the federal government, the American legal system is considered to be a civil law system.

F - common law

Under the principle of judicial review, the courts have the authority to determine the constitu­tionality of legislative and executive acts.

T

Restatements of law are a source of law written by legal scholars, and Restatements are binding on the courts.

F

The law is constantly changing in an effort to meet the evolving needs of society.

T

In a civil action, the plaintiff must prove the case by a preponderance of the evidence.

T

      The Supreme Court of the United States ultimately decides the constitutionality of any law.

T

Business law is primarily public law.

F - private

The Uniform Commercial Code is a federal statute that was adopted by Congress to make the law uniform among the states.

F - not federal, state level, many states happened to enact it

Forms of relief in civil law include judgments for money damages and equitable remedies.

T

Which of the following is not a primary function of law?

a.   Maintain stability in the social, political, and economic system

b.   Protect ownership of private property

c.   Insure to all a minimum living

d.     Preservation of the state

c

Which of the following is not a category of private law?

a.   Tort law

b.   Contract law

c.   Criminal law

d.   Property law

c

Which of the following is not a category of public law?

a.   Constitutional law

b.   Criminal law

c.   Contract law

d.   Administrative law

c

While the principle of stare decisis provides that courts will follow their precedents in making subsequent decisions, nevertheless a court may decline to follow its precedents:

a.   to correct an erroneous decision.

b.   to choose among conflicting precedents.

c.   in recognition of the fact that the needs of society change over time.

d.   all of the above.

d

Which of the following is NOT a characteristic of a court of equity?

a.   It may provide injunctive relief.

b.   It may reform or rescind a contract.

c.   It presides over jury trials.

d.   It may command a person to perform a contract.

c

A person who is injured by the wrongful act of another may bring a civil suit to:

a.   recover money damages.

b.   have the wrongdoer thrown in jail.

c.   order the wrongdoer to engage in or desist from certain conduct.

d.   (a) and (c), but not (b).

d

The appeals court decision in the case of State v. Dawson, 282 S.E.2d 284, may be found at:

a.   page 282 of volume 284 of the Southeastern Reporter, second series.

b.   page 284 of volume 282 of the Southeastern Reporter, second series.

c.   pages 282–284 of volume 2 of the Southeastern Reporter.

d.   none of the above.

b

Which of the following is NOT true of an action brought under criminal law?

a.   It involves a wrongful act.

b.   Criminal guilt must be proven beyond a reasonable doubt.

c.   It must be brought by the government.

d.   The main purpose of the suit is to require payment of money damages to the victim.

d

Sources of state law include:

a.   state judicial decisions.

b.     state constitutions.

c.     state statutes.

d.   all of the above.

d

In the criminal trial of State of West Virginia v. Dawson, the defendant in the action was:

a.   Dawson.

b.   the State of West Virginia.

c.   the victim of the crime.

d.   the federal government.

a

The highest source of law in the United States is:

a.   an executive order of the president.

b.   an interstate compact.

c.   the federal Constitution.

d.   the state constitutions.

c

The most successful work by the National Conference of Commissioners on Uniform State Laws and the American Law Institute has been the:

a.   Uniform Commercial Code.

b.   Uniform Limited Partnership Act.

c.   Model Business Corporation Act.

d.   Uniform Probate Code.

a

A major difference between law and equity is that:

a.   today, in most states, courts of law decide law cases and courts of equity decide equity cases.

b.   law originated in America and equity was developed in England.

c.   the plaintiff could seek money damages under law, while the plaintiff could seek specific performance under equity.

d.   equity was overly rigid, while law provided various remedies.

c

Which of the following is/are equitable remedies?

a.   Injunction

b.   Reformation

c.   Rescission

d.   All of the above

d

Bill Businessman files a lawsuit against Carl Contractor for breach of contract.  This case is a(n):

a.   equitable action.

b.   criminal proceeding.

c.   civil lawsuit.

d.   public law case.

c

partnerships allow individuals with… (star)

different expertise, resources, and interests to bring their various skills together to form a competitive enterprise

why form a partnership?

pool resources together

UPA uniform partnership act

some states rule the uniform partnership act as law governing partnerships. most use revised UPA

choosing a business association

business owners determine the form of organization based on their specific circumstances

which business form should be used? factors affecting the choice

ease of formation, taxatino, external liability, management and control, transferability, continuity

external liability (star)

in some business forms, owners have UNLIMITED LIABILITY which places their entire estate at risk for the obligations of the business. in other business forms the owners have LIMITED LIABILITY which means their liability is limited to the extent of their capital contribution

sole propriotship

this is an unincorporate business consisting of one person who owns and controls the business and has unlimited liability. A SOLE PROPRIETORSHIP IS FORMED without any formality and is NOT a TAXABLE ENTITY (ex: amy prints shirts by herself)

general partnership (star)

an UNINCORPORATED BUSINESS consisting of two or more persons who co-own the business for profit. partners have EQUAL RIGHTS TO CONTROL THE BUSINESS AND HAVE ULIMITED LIABILITY (ex: amy asks her friend cory to go into business)

joint venture

an UNINCORPORATED BUSINESS association usually of short duration composed of persons who combine their property, money, efforts, skill, and knowledge to carry out a PARTICULAR BUSINESS ENTERPRISE FOR PROFIT (ex: partnership to build apartment)

limited partnership

UNINCORPORATED BUSINESS association in which ALL MEMBERS HAVE LIMITED LIABILITY AND SHARE the right to particpate in management. may elect not to be a tavable entity. death, bankruptcy, or withdrawl of a memeber dissolves the llc

limited liability partnership

general partnership that files an application with the state to limit liability of the partners for some or all of the partnership’s obligations

limited liability limited partnership

general partnership in which the liability of the general partners has been limited by registerring s an LLLP

corporation (STAR)

a legal entity SEPARATE FROM ITS OWNERS AND IT IS FORMED by filing article of incorporation with the state. a corporation is a TAXED AS AN ENTITY and owners are taxed on earning distributed to them. shareholders have limited liabilty, and shares are freely transferable. death, backruptcy, or withdrawl of an owner does not dissolve the corp. FORMED BY FILING CERTIFICATES OF CORPORATION

sub “S” corporation

IRS section, taxes flow down to you