BLS 342 EXAM ONE

Civil Law

law that lays out the responsibilities implied in relationships between persons and between persons and their government

Stare Decisis

"Standing by the decision" a principle stating that rulings made in higher court are binding precedent for lower courts

Administrative Law

rulemaking by administrative agencies

Distinguish between a Civil Law system and a Common Law system.

common law system: past legal precedents or judicial rulings are used to decide cases at hand.

civil law system: codified statutes and ordinances rule the land

Schools of Jurisprudence

theories concerning how societies develop, maintain, and change laws governing individual behavior

- natural law

- legal positivism

- identification with the vulnerable

- historical school/tradition

- legal realism

- cost-benefit analysis

Natural Law

describes certain ethical laws and principles believed to be morally right and "above" the laws devised by humans

Legal Positivism/Textualism

sees our proper role as obedience to duly authorized law; law is distinct from morality

Identification with the Vulnerable

A school of jurisprudence that holds that some higher law or body of moral principles connects all of us in the human community.

Criminal Law

law that regulates situations in which someone commits an act against the public as a whole

Private Law

law that involves suits between private individuals or groups

Public Law

law dealing with the relationship between government and individuals

How is civil law different from criminal law? (4 differences)

- evidentiary standard: civil = preponderance of evidence; criminal = beyond all reasonable doubt

- consequences: civil = (usually) compensation to victim; criminal = incarceration and/or pay fine

- case upbringing: civil = plaintiff against defendant; criminal = public (state/federal government) against defendant

- purpose: civil = to make plaintiff whole (make up what they lost); criminal = punish and deter

What are the purposes of law? (6 purposes)

- provide order such that one can depend on a promise or an expectation of obligations

- serve as alternative to fighting

- facilitate a sense that change is possible, but only after a rational consideration of options

- encourage social justice

- guarantee personal freedoms

- serve as a moral guide by indicating minimal expectations of citizens and organizations

Constitution

supreme law of the land; rules for federal and state government

Statutes

laws made by a legislative body; added to US/state code

Case/Common Law

the collection of legal interpretations made by judges

Precedent

how court previously ruled in a similar case

Historical/Traditional

we link our behavior to the behavior of those who faced similar problems in earlier time periods

Legal Realism

judges need to consider more than just the law, weight factors such as social and economic conditions

Public Opinion

takes into consideration what the public thinks about an issue

Cost-Benefit Analysis

all costs and benefits of a law are given monetary values

Critical Race Theory

a paradigm grounded in race awareness and an intention to achieve racial justice

Feminist Theory

based on the political, economic, and social equality of sexes

Public Disclosure

ethical framework considering how the public would react to the decision

Universalization

ethical framework considering what the world would be like if everyone else copied our decision

Golden Rule

treat others the way you want to be treated

Rights-Based Ethics

belief that individual rights provide the vital protection of life, liberty, expression, and property

Virtues Ethics

ethical framework considering what a good and moral person would do

Utilitarianism/Consequentialism

ethical decisions are determined on the overall social consequences of an act

Who are the stakeholders of a business?

any person of group who is impacted by the decisions of a business or who impact a business' decision-making

What is the relationship between law and ethics?

- business law provides the minimally accepted course of action and is impacted by the current norms

- business ethics includes following the laws and the ethical norms of society/community/customers/employees/purpose

What was Milton Friedman's argument?

The only social responsibility of a business is to increase its profits, meaning that businesses have no social responsibility

What arguments did Milton Friedman use to justify his argument that business decisions should be based primarily on shareholder interests?

- CEO is an agent of shareholders and has a duty to shareholder interests

- CSR = tax on shareholders

- let free market work it out

- CSR = "cloak" for interest making

What was Edward Freeman's argument?

businesses and the executives who manage them, actually do create value for customers, suppliers, employees, communities and financiers (or shareholders)

What arguments did Edward Freeman use to justify his argument that business decisions should not be based primarily on shareholder interests?

- decentralized management

- incentivize short term decisions

- change only happens when stock price decreases

- doesn't reflect the laws

- business is an ecosystem

What is the difference between ESG and CSR?

- Corporate Social Responsibility (CSR): a self-regulating business model - in the ordinary course of business, a company is operating in ways that enhance society and the environment

- Environment, Social, Governance (ESG): criteria that helps investors understand value creation and mitigation of risk

What is the Business Round Table (BRT) and what commitment did it make on or about August 19, 2019? What did it change the purpose of a corporation to be?

- Signed by 181 CEOs committing to lead their companies for the benefits of all stakeholders, customers, employees, suppliers, communities, and shareholders

- To maximize stakeholder benefits

What five aspects are necessary for a court to hear a case?

- personal jurisdiction

- subject-matter jurisdiction

- standing

- case/controversy

- ripeness

Personal Jurisdiction

the power of a court to force a person to appear before it

Subject Matter Jurisdiction

the power of a court to hear a particular type of case

Standing

a legal rule stating who is authorized to start a lawsuit (outcome would personally affect people with this)

Case or Controversy

A requirement that courts may decide only cases in which an actual conflict between persons exists, no hypothetical "what-if"

Ripeness

a case that is ready for litigation and does not depend upon hypothetical future events

Long Arm Statutes

state statutes where state court may bind those defendants outside the state as long as the defendant has sufficient minimum contacts within the state

Plaintiff

the person or party who initiates a lawsuit before a court by filing a complaint with the clerk of the court against the defendant

Defendant

the person, party, or entity against whom a civil or criminal lawsuit is filed in a court of law

Complaint

A formal written document that begins a civil lawsuit; contains the plaintiff's list of allegations against the defendant, along with the damages the plaintiff seeks.

Answer

Procedurally, a defendant's response to the plaintiff's complaint.

Summons

A legal document issued by a court and addressed to a defendant that notifies him or her of the lawsuit and how and when to respond to the complaint; may be used in both civil and criminal proceedings.

Service of Process

the procedure by which a court delivers a copy of the statement of claim or other legal documents, such as a summons, complaint, or subpoena, to a defendant

What subject matters does the Federal Courts have exclusive jurisdiction? Which subject matters can be heard by federal or state courts?

Exclusive federal:

- admiralty

- bankruptcy

- federal criminal prosecutions

- one state sues another

- claims against US

- federal patent, trademark, and copyright claims

- others involving federal statutes that specify exclusive federal

Concurrent:

- federal-question cases

- diversity-of-citizenship cases

State:

- all cases not under exclusive federal

What is a Diversity of Citizenship case? What two things are needed for a diversity-of-citizenship case to go to federal court?

type of case falling under concurrent jurisdiction

- all plaintiffs and defendants reside in different states

- amount in controversy exceeds $75,000

What is Venue and when is a change in Venue appropriate?

the court's geographic location, determined by each state's statutes

- if location is an inconvenience to defendant or if defendant believes it will be difficult to select an unbiased jury in that venue (judge can grant or deny motion)

A business can best protect itself from having a case decided in an unfriendly choice of law by including what two contract provisions in all of their contracts? Define each.

Choice of Law: specifies which law will be applied to resolve any disputes that arise under the contract

Forum Selection Clause: parties specify which court would hear a dispute over an alleged breach of the contract

In what two places does a business reside?

- state of incorporation

- state of principal place of business (headquarters)

What happens when a case goes to an Appellate Court? What is the difference between trial court and appellate court?

- Appellate Court: appealing of the law (no jury, no evidence), taking and reviewing filed from trial court, hearing arguments

- Trial Court: may have a jury that identifies evidence and fact

What four types of decisions can an Appellate Court make?

- Affirmation

- Modification

- Reversal

- Remand

How would you describe the predictability of a jury trial given our in-class experiment with the Quickee Foods Case?

very unpredictable, a jury is a random selection of citizens who may know next to nothing about the law

What communication between an attorney and her client is protected from disclosure due to Attorney-Client Privilege? How can a client lose the privilege?

- The attorney-client privilege protects communications involving the legal advice of attorneys, not communications involving their business advice

- A client can lose the privilege by sharing an attorney's legal advice with a third party.

- Not all attorneys enjoy the same presumption that their confidential communication was made for the purpose of providing legal advice.

- Disclosure to a third party of one's communication with an attorney eliminates whatever privilege the communication may have originally possessed

What is Alternative Dispute Resolution (ADR)? Why is it beneficial for businesses?

the resolution of legal disputes through methods other than litigation (meaning through the court system) such as negotiation, mediation, and arbitration

What are some advantages of ADR?

- faster (avg. litigation takes 2 years)

- cheaper

- more predictable/parties have more control

- confidential

- preserves business relationships

What are some disadvantages of ADR?

- efficiencies and lower cost advantages decrease as ADR is increasingly used

- difficulty of appealing award

- loss of civil rights and remedies

- companies may "hide" disputes

Negotiation

parties attempt to settle the dispute informally, with or without attorneys

Mediation

a method of settling disputes outside of court by using the services of a neutral third party

Arbitration

settling a dispute by agreeing to accept the decision of a neutral third party outside of the judiciary

What does the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act do?

if a dispute relates to being sexually assaulted, you do not need to go through arbitration even if stated in contract

What are some tips for drafting a binding arbitration clause in a contract to ensure that an appellate court will uphold the provision?

- be clear and unmistakable

- ensure that the arbitration clause is bilateral

- state explicitly which party will pay arbitrator's fees

- specify how arbitrator will be selected

- specify the costs associated with arbitration

- avoid limitations on the remedies available to the parties

- consider other potential parties when determining where to hold arbitration

What two groups of people are in a weaker position when signing a contract with a company that the law will more likely find an arbitration clause as unfair and throw it out?

- consumers

- employees

What are the differences between litigation trial and an arbitration?

litigation uses a judge to render decision, arbitration uses private third party

What did the court find issue with regarding the binding arbitration clause with the Hooters Case opener?

- there was no meeting of the minds on all of the material terms of the agreement and even if there were, Hooters' promise to arbitrate was illusory

- found that the arbitration agreement was unconscionable and void for reasons of public policy.

All power that the federal government has must come from ____________________________________.

US Constitution

If the federal government acts in a way that is not authorized by the US constitution, its act is _____________________ and by default ______________________________.

unconstitutional... reserved for the state

Federalism

a system of government in which power is divided between a central authority and constituent political units

Where in the Constitution does it state that power not provided to the federal government is provided to the states?

10th Amendment

What case is the authority for the Judicial Branch's judicial review process?

Marbury v. Madison

Supremacy Clause

- Article VI of the Constitution

- makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits

Commerce Clause

empowers the federal government and restricts the power of state governments to regulate commerce among the states. (interstate commerce)

The commerce clause is the primary source of ______________________ for federal regulation of business.

authority

What are three activities Congress may regulate under the Commerce Clause?

- use of channels of interstate commerce

- instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may come only from intrastate activities

- those activities substantially affecting interstate commerce

NLRB v. Jones & Laughlin Steel Corp

- example of the broadest use by Congress of the Commerce Clause

- Congress can regulate labor relations at a manufacturing plant because a work stoppage at the plan would seriously affect interstate commerce

- ruling is the basis for many other laws such as the Americans with Disabilities Act and the Consumer Protection Act

National Federation of Independent Business v. Selibus

- US Supreme Court deemed the Affordable Care Act constitutional under Congress' tax and spend powers (the individual mandate is likened to a tax) but not its commerce clause powers, holding that Congress has the authority to regulate commerce, not compel it.

Affordable Care Act

law passed in 2010 to expand access to insurance, address cost reduction and affordability, improve the quality of healthcare, and introduce the Patient's Bill of Rights

US v. Lopez

The Court held that Congress had exceeded its commerce clause power by prohibiting guns in school.

What does the State's Police Power refer to? What are examples of a state's exercise of this power?

consists of residual powers retained by each state to safeguard the health and welfare of its citizenry

- ex: state criminal laws, building codes, zoning laws, etc

Privileges and Immunities Clause

Part of Article IV of the Constitution guaranteeing that the citizens of each state are afforded the same rights as citizens of all other states.

Full Faith and Credit Clause

Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state

Bill of Rights

The first ten amendments to the Constitution

The _________________________ extends the prohibition of individual freedom regulation to the States.

14th Amendment

Citizens United v. Federal Election Commission

A 2010 landmark Supreme Court case that ruled that individuals, corporations, and unions could donate unlimited amounts of money to groups that make independent political expenditures.

New York Times v. Sullivan

Decided in 1964, this case established the guidelines for determining whether public officials and public figures could win damage suits for libel. To do so, individuals must prove that the defamatory statements were made with "actual malice" and reckless disregard for the truth.

What must a plaintiff who is a public figure prove to win a defamation case? What happened in the Sarah Palin defamation case?

defamation: speech that harms the reputation of another

- must show that the editors/writers acted with malice and ignored the facts on purpose

- NY Times called it an "honest mistake" and made correction next day

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment

A constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, self-incrimination, and punishment without due process of law.

Due Process

fair treatment through the normal judicial system, especially as a citizen's entitlement.

Takings Clause

Government can take private property for a public purpose, but it must provide fair compensation to the owners of that property.

Which Fifth Amendment rights does a corporation not have?

Self-Incrimination Clause: protects people from being forced to give testimony that could implicate them in a crime

Administrative Agency

a federal, state, or local government agency established to perform a specific function; referred to as the unofficial fourth branch of government

Administrative Procedure Act

establishes procedural requirements for federal agency decision making, including agency rulemaking

Enabling Legislation

statue that gives administrative agency its power

How does the leadership structure of an Independent Agency differ from that of an Executive Agency? (How are the commissioners selected and terminated in each?)

Executive: head of agency appointed by president with advice and consent of US Senate and may be discharged by the president at any time

Independent: governed by board of commissioners one of whom is chair, commissioners appointed by president with advice and consent of US Senate

- serve fixed terms and cannot be removed except for cause