Business Law Exam 1

Oliver Wendell Holmes Jr.

• 1841-1935

• Laws are rules enforced by courts

• Single authority can lead to tyranny

• Courts should rule predictably on cases

William Blackstone

• 1723-1780

• Rule of civil conduct prescribed by supreme power commanding what is right and prohibiting what is wrong

Thomas Hobbes

• 1588-1679

• Mankind sacrificed all rights to the state to protect property and lives

• Negative view on human nature

Montesquieu

• 1689-1755

• Checks and balances

• Separation of powers

• Power should be limited (no absolute power)

John Locke

• 1631-1704

• Law should extend freedoms

• Social contract

• EX: law against spitting gum increases rights because others won’t get gum on their shoes

• Big influence on founding father

Who influenced the Constitution the most?

Montesquieu and John Locke

Ethics

Goals that the law should strike to emulate

George Bernard Shaw

• People don’t take the time/effort to reason their own morals and ethics

• We take historical artifacts and adapt them

Civil Disobedience

• Knowingly breaking the law to make a statement

Who has done civil disobedience?

Henry David Thoreau, Mahatma Gandhi, Martin Luther King Jr

Brown v. Board of Education

• Supreme court ruled that 3 school board’s segregation were unconstitutional

• Overturned Plessy v. Ferguson

Roe v. Wade

• Constitutional right to privacy guaranteed woman’s right to abortion

• Before: 18 states

• During: 32 states

What case overturned Roe v. Wade?

Dobbs v. Jackson Women’s Health Org

Ethics and Law

People’s view on ethics changes the law more

What are the purposes of law?

• Deal making

• Compromises

• Order, stability, justice, fairness, equality

• Influences conduct

Code of Hammurabi

• 1750 BC

• Babylonian Empire

• Reciprocal law principle

• lex talionis

• give to ruler by sun god Shamash: very inflexible

Lex talionis

“eye for eye”

Code of Solon

• 600 BC

• Greek empire

• laws are product of human reason

• rule of the people (democracy)

• adapted old systems

Code of Justinian

• 533 A.D

• Roman empire (large)

• systematized civil law system

• big influence but not in US

lex civilis

civil law system

Code of Napoleon

• 1804 A.D

• French revolution

• depends a lot on legislature to write laws into code

• Louisiana (codes not common law)

Common law

• english speaking countries

History of common law

• Battle of Hastings in 1066: Normans attacked and william the conqueror became king

  • law yearbooks: records + precedents

  • state decisis

What is state decisis?

• Idea of following law already decided (precedents)

• provides stability and structure for judges

• lawyers argue against by stating facts (situation) of specific case are different than precedent

• Decision is binding in court if it or higher made it

Books that helped law progress

• Commentaries on Laws of England (1769) by William Blackstone

  • Last great law reference text America took from Britain

• The Common Law by Oliver Wendell Holmes Jr

Precedents

Past court cases that are binding

Crime

Offense against society at large

Tort

• Offense against private person or business

• Victim can bring tort claim but can’t commence criminal proceedings

• Can only be liable

Felony

• A year or more

• Can strip civil rights but can petition

Misdemeanor

• Less than a year

Offense

• Administratively handled wrongs

• No jail time

Treason

Betraying one’s country

Capital Crimes

• Punishable by death

• Murder, treason, epionage

Larceny

Non-violent theft

Robbery

Violent theft

Supreme Court

Highest and court of last appeal

How many federal circuit courts of appeal?

12

How many district courts?

94

Hierarchy of courts

• Supreme court (all bound)

• Circuit courts of appeals (all district courts in circuit bond)

• district courts (that district bond)

Steps to courts

1) File case w/ district court in your jurisdiction

2) If lose, file with circuit

3) If lose, file petition for writ of certiorari w/ supreme court

Examples of stare decisis being overcome (case that overturned previous cases)

• Brown v. Board of Education

• Dobbs v. Jackson Women’s Health Org

• Hope v. Pelzer (2002)

Hope v. Pelzer

It is cruel and unusual punishment to tie a person to a hitching post in the hot sun with no bathroom breaks

How courts get around stare decisis

• Distinguish the facts

• Claim previous precedent was mere dicta

Mere dicta

Extra, non-crucial portion of opinion

Not legally binding

State laws

Not binding to another

Dyods

Groupings of 2

Substantive law

• creates, defines, and regulates law, legal rights, and litigation

• ex: law against murder (criminal) and tort law (civil)

Procedural law

• rules and laws used to enforce substantive laws

• trial lawyers, litigators, and admin lawyers hired

• establishes methods a person may obtain remedy in court

private law

• between individual and/or business

• lawsuits, contract, property, agency, partnerships

public law

• between person and government

• tax, constitutional, criminal, admin

criminal law

wrongs against society

civil law

wrongs between individuals (wronged and aggressor)

case law

• based on preceding court cases and decisions

• common law

• some based on statues (interpretive in annotated statutes)

statutory law

• based on statutes from legislature

• codes are type of statues

• ucc

Uniform Commercial Code (UCC)

Most important business law statute

Comparative law

Study of differences/similarities in legal systems of multiple countries

International law

Rules, principles, and norms that govern relationships among nations

Legal citation

1) Parties names: plaintiff v. defendant

2) Volume

3) Reporter (publication)

4) Page number

5) Date: Year

Unitary gov

one sovereignty

most countries

Federalism gov

dual sovereignty between federal gov and states

about 30 countries

best

confederacy gov

states have more power than national gov

very few countries

US gov

civil war established US as federalism

trend toward federalism

• European union

• lower taxes internationally

Jurisdiction

power and authority to speak the law

US has 51 (one for each state and federal)

state sovereignty

• Can’t enter treaties, declare law contradictory to US law, or make their own money

• increase in federal law (ex: labor laws)

Jurisprudence

• Theory and philosophy of law

• Not mutually exclusive

Historical school of Jurisprudence

• law should be interpreted and applied by analyzing historical origins

• law is always evolving

• Friedrich Karl von Savigny

• Oliver Wendell Holmes Jr

• Emphasis on experience

Utilitarianism

• Achieve the greatest good for the greatest number

• Maximize gains for society

• Jeremy Bentham

• John Stuart Mill

• George Bernard Shaw

• Objective even if they are ones losing

Law and economics (“Chicago School”)

• Must understand market behavior

• Popular among political conservations

• Richard Posner

• Gary Becker

• Robert Bork

Positivism

• Laws put forth by state or governing authority are valid and should be enforced

• If positivist disagrees, may work to change it but will abide until changed

• John Austin

• H.L.A. Hart

Natural law

• Law comes from values that are morally right and wrong

• Strive for ideal state of being

• Ethics!!

• Egalitarianism

• William Lloyd Garrison

• Immanuel Kant

• John Rawls

Egalitarianism

Equality

William Lloyd Garrison

• The Liberator

• Against constitution bc of slavery

Immanuel Kant

• Deontological

• Categorical imperative

Deontological

Duty-based, think of means and ends

Categorical imperative

Behavior driven by duty and not consequences

Teleological

Behavior driven by consequences

John Rawls

• 1921-2002

• A Theory of Justice

• Theories about justice are too connected with the perceptions of our places in society

• Make laws from POV of someone who knows nothing about their natural abilities or place in society

• You have to remove the Veil of Ignorance

Lon Fuller vs. H.L.A. Hart

• Debate about Natural law (Fuller) vs. legal positivism (Hart)

Legal realism

• need to account for how people really behave to understand the law

• need to know person making decision (lawyer, judge)

• Benjamin Cardozo

• Oliver Wendell Holmes Jr

• Roscoe Pound

• Karl Llewellyn

• Ex: disregarding a shocking remark in court but the jury still heard it and can’t just forget it

Cultivation theory

Viewer’s perception of reality altered based on the shows they have watched

CSI Effect

jurors in criminal cases expect definitive, conclusive evidence against the defendant as seen on CSI

The thing (assembly)

• Scandinavian Viking legislative body assembled to speak the law and resolve disputes

• Primary predecessors to jury system but was preferable if the assembly already had background knowledge

Civil law

• Code-based law

• Europe, Quebec, LATAM, Louisiana

• Judges don’t make laws they just apply it (FIND FACTS)

  • Inquisitor: establishes facts and is judge

• Inquisitorial

Common law

• Based on court decisions and precedents

• English-speaking countries (America)

• Parties usually find facts

• Judges establish what law is NOT FACTS

• Finding truth asymptotically: Lawyers present sides

• Adversarial

Pro-se

Person defending themselves

Inquisitorial

• Judges play larger role (find facts)

• Huissiers: legally trained, court-appointed to find facts

Richterliche

Judges have durty to provide help and feedback to parties

Adversarial

• Facts will emerge when 2 opposing sides present cases in court

• Lawyers develop facts, not judges

• Bad: side with better lawyers can win

Service of process

• The due process clause of 14th amendment

• Prohibits legal action against person who doesn’t have notice of claim against them

• Defendant must be notified that lawsuit filed by proper summons (Rule 4)

• Complaint and summons

How to obtain complaint and summons

• Via certified mail

• Sheriff serves

• Private process server

Summons

• Notifies party that they are being sued/charged and timeframe

• Worse than subpoena

Subpoena

Compels someone to testify under oath or provide documents

Subpoena duces tecum: bring specified docs

Waiving service of process

• Avoids embarrassment of being served in public place

• Given more time to respond (20-30 days to 60 days)

Penalize for avoiding service

• By Federal Rules of Civil Procedure

• Plaintiff can send notice of commencement of action

  • Will request to waive SOP

  • Allows judge to require party who refused to waive SOP to pay for cost of serving process

Motions to dismiss (demurrers)

Even if the plaintiff was true, still doesn’t have case

“so what?”

Demurrers - without prejudice

• Refile case with revised pleadings

• Innocent mistake

Demurrers - with prejudice

• Final

• Improper motive

Demurrers - if statue of limitations applies

• More harmful to plaintiff

• Past the timeframe given to refile

Answer

• When motion is denied or not moved to dismiss

• Denies/admits claims in complaint

• Affirmative defenses

• Counterclaims