NCSU MIE 305 Exam 1 (Chapters 1-3)

What is the importance of a Business Law course in a business/management curriculum, and/or the importance of knowing something about it to a businessperson?

The law is important to modern business. The history of business reveals the prominence of law. Educators today emphasize the role of law in preparing tomorrow's business leaders.

How can business people use the law to a strategic advantage?

Knowing legal rights and duties enhances one's ability to identify legal risks and effectively reduce or eliminate resulting legal liability. Knowing legal rights and duties allows business leaders to use the law to their strategic advantage.

Series of treatises that articulate the principles or rules for a specific area of law

Restatement of the Law

Do the differences between primary and secondary authority change depending on what court one is in?

If the legal resource is from somewhere else or here, then it becomes controlling or persuasive

What's the difference between primary and secondary authority?

If it's a case or a statute (including administrative rules), it's primary authority. If it's anything other than a case or statute, it is secondary authority

What is the difference between controlling and persuasive authority?

Controlling authority is law that is directly binding on a court in that jurisdiction. Persuasive authority is law somewhere, but just not here

Why has the US experienced an "orgy of statute-making," as it's described in the book?

As legislators churn out more statutory law, there is by necessity more printed definition of—and therefore less interpretive space for—the rules of law, and many common law principles are modified or even eviscerated by statutes which come along to trump them

How do judges approach their powers of equity?

Courts of equity use philosophical sounding maxims, or general principles of justice, instead of strict rules of law to decide cases.

What is equity?

A branch of law that developed alongside common law and is concerned with fairness and justice, formerly administered in special courts

How can modern US judges make decisions between law and/or equity, and under what circumstances?

Decisions of law typically involve monetary damages, decisions of equity typically refers to injunctions, specific performance, or vacatur

How did equity develop, both in England and the US?

Before you could sue someone for those money damages, you often had to go through difficult procedural mechanisms to get written permission to do so. This system dissuaded many parties from going to the bother of seeking justice in that way.

What are alternatives to common law in use in world legal systems?

A civil-law or code-law system is one where all the legal rules are in one or more comprehensive legislative enactments

Who or what was instrumental in Common law's development?

Henry II

How did the Common Law come to be, and how was it spread across England?

Henry II streamlined the court system and standardized it throughout the land, requiring great deference be paid to the decisions of the curia regis and developing a system of "ridings" and "circuits". Judges would learn from each other the intended interpretation of rulings from the curia regis, and as they shared their own case decisions with each other, a general consensus among judges of what the common law rule should be in a certain case with a certain set of facts developed

What is judicial review, and why was Marbury v. Madison important to that concept?

The power of the judiciary to review the actions of the other branches of government and to set them aside as null and void if they are in violation of the Constitution. In this case, they literally created for the court a power that the founding fathers had not enumerated (spelled out) in the Constitution.

What are the four sources of law, and how do they fit hierarchically?

(1) constitutions; (2) legislation; (3) administrative agencies; and (4) common law rules.

What is the significance of Llewelyn and Hoebel's The Cheyenne Way?

They used a rich oral history to transmit the rules from generation to generation, there was no need to write the rules down or put them in reference books anywhere.

Do legal systems have to be written?

For code law yes, for civil and common law no.

What are the objectives of a legal system?

1. Promote order in society.

2. The ability for individuals and entities to achieve justice

3. Cultivate a sense of reasonableness.

criminal law

Legally enforceable rules that forbid certain conduct as being detrimental to the welfare of the state or the people generally, and provides punishment for their violation.

What is Vago's conflict perspectives?

It considers society as consisting of individuals and groups characterized by conflict and dissension and held together by coercion

What are Vago's purposes and functions of law?

Maintain order, dispute resolution, social change

What is Vago's consensus perspectives?

It considers law as a neutral framework for maintaining social integration. Law is an attempt to satisfy, to reconcile, to harmonize, to adjust these overlapping and often conflicting claims and demands

private law

The body of law that pertains to the relationships between individuals in an organized society. It encompasses the subjects of contracts, torts, and property.

law merchant

Various rules of commerce and trade used by business people to deal with one another beginning in the Middle Ages and enforced by merchant guilds.

Equity

A particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from "legal" ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate. For example, courts will typically award equitable relief for a claim which involves a particular or unique piece of real estate, or if the plaintiff requests specific performance.

stare decisis

"To stand by decisions and not to disturb what is settled." Once a case has established a precedent, it should be followed in subsequent cases involving the same issues.

res judicata

A court of competent jurisdiction has decided a controversy and has, in a written opinion, set forth the rule or principle that formed the basis for its decision; thus that rule or principle will be followed by the court in deciding subsequent cases involving the same issues.

dicta

statements of the court that are not necessary to decide the controversy before the court

substantive law

The law that is used to decide disputes

procedural law

The legal procedures that determine how a lawsuit is begun, how the trial is conducted, how appeals are taken, and how a judgment is enforced

public law

The bodies of law that affect the public generally

civil law

The system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.

How hard is it to get cert from the US Supreme Court?

Getting a case heard by the Supreme Court is considerably more difficult than gaining admission to Harvard. In 2010, there were 5,910 petitions for a Writ of Certiorari filed with the Supreme Court, but cert was granted for only 165 cases. That is a success rate of only 2.8%.

What Court of Appeals Circuit is NC in?

4th

What do we mean by "judicial federalism?"

The separation of judicial authority between federal courts and state courts. Typically, federal courts have exclusive jurisdiction in matters of federal law while state courts have exclusive jurisdiction in matters of state law

How are federal judicial districts and circuits determined?

The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals

What's the difference between an appeal of right and a discretionary appeal?

An appeal of right is one that the higher court must hear, if the losing party demands it, while a discretionary appeal is one that the higher court may, but does not have to, consider

What are the basic structures of federal judicial systems?

Three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system.

What is the basic structure of the state judicial systems?

Three levels of court systems: trial courts, where litigation is begun; intermediate appellate courts; and a final appellate court.

What is geographical jurisdiction?

The action that gave rise to the dispute occurred within the geographical territory of the court.

What is subject matter jurisdiction?

The authority of a court to hear cases of a particular type or cases relating to a specific subject matter

How would you characterize the respective caseloads of civil and criminal courts in the US between state and federal courts?

State courts are substantially busier (40m v. 200K), and overwhelmingly civil cases (private law matters) and not criminal cases

How many separate court systems do we have in the American legal system?

Two, federal and state

What is the significance of the Hertz v. Friend case?

Thee Court supported the "nerve center" test for determining corporate citizenship. This means a corporation has a single principal place of business where its executive headquarters are located

What are the limitations on the judiciary?

The judicial branch can interpret the laws but cannot enforce them

justiciability doctrine

Standing, advisory opinions (sometimes called the "cases and controversies" requirement), ripeness, mootness and political questions.

selection of federal judges

They are nominated by the President and confirmed by the United States Senate

Erie doctrine

A binding principle where federal courts exercising diversity jurisdiction apply federal procedural law of the Federal Rules of Civil Procedure

Strawbridge rule

Complete diversity required between all P as a group and all D as a group.

If there be two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs must be capable of suing each of the defendants, in the courts of the United States, in order to support the jurisdiction.

Rule 10 of the Supreme Court (as opposed to the Rule of Four)

Review on a writ of certiorari is not a matter of right, but of judicial discretion.

(a) a court of appeals has entered a decision in conflict with the decision of another on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a court of appeals;

(c) a state court or a court of appeals has decided an important question of federal law that has not been settled, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

federal question doctrine

Arise under the Constitution, statutes or administrative laws of the United States. No diversity requirement between P & D, state and fed governments may be defendants, no damages threshold (law or equity).

basics of federal diversity jurisdiction

The judicial power shall extend to all cases, in law and equity. . . to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states

P & D must be from different states!

Situs and nerve center tests

P must fairly allege in excess of $75k

The Strawbridge Rule

P is "master of the lawsuit," but D has power of removal (immediate transfer to federal court; P must fight it, if at all, there)

certiorari

A writ or order by which a higher court reviews a decision of a lower court.

majority

a number greater than half of the total

pro se

"on behalf of one's self"—to argue their own cases before the judge

small claims

a court whose jurisdiction is limited by the monetary amount in controversy.

general jurisdiction of courts

the workhorses of their system. Have the power to hear any civil/criminal cases.

limited jurisdiction of courts

may only hear certain types of cases. Small claims, probate, juvenile, district courts (in NC); at the federal level, tax court, magistrate's court, bankruptcy court

dissenting opinions of an appellate court

an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment

amount in controversy

the amount at stake in a lawsuit

concurring opinions of an appellate court

the separate judicial opinion of an appellate judge who voted with the majority

What are the rules about discovery of internal computer documents and records that a party may have which it does not wish to release to the opposing side in litigation because they may be embarrassing or weaken that party's legal position?

Evidence that can not be presented to the jury or decision maker for any of a variety of reasons: it was improperly obtained, it is prejudicial (the prejudicial value outweighs the probative value), it is hearsay, it is not relevant to the case, etc.

What's the significance of the World-Wide Volkswagen (and International Shoe) case in explaining when long-arm jurisdiction is appropriate to use?

A state court could only exercise in personam jurisdiction over a non-resident defendant when that defendant has "minimum contacts" with the state.

And if D's conduct was such that it could "reasonably expect to be haled into court" in the forum state, and that doing so does not "offend traditional notions of fair play and substantial justice."

What is the "website rule" and how does it work?

Passive websites (information only) don't generally qualify for personal jurisdiction

Commercial websites typically do, unless they specifically block sales to certain jurisdictions.

Interactive websites (permitting exchanges between site and users) are a tougher call; they may qualify, depending on the nature and extent of allowable communication.

When do you have the right to a civil jury trial and when do you not?

Right to jury in serious criminal cases

The Seventh Amendment extends the right to a jury trial to federal civil cases

The North Carolina Supreme Court ruled that there was no right to a jury trial at common law or by statute at the time the constitution was adopted and the Supreme Court affirmed the decision of the trial court to deny the plaintiffs of the trial by jury.

Jury trial rights are not applicable if an action is purely at equity. D may waive jury rights.

When, where and how can you serve a party with a summons and complaint?

A summons may be served beyond the borders of the state if the state has a long arm statute. This service is not a denial of due process if the defendant has sufficient contact with the state issuing the summons such that requiring him/her to defend the lawsuit does not offend our traditional notions of fair play and substantial justice.

Difference between jurisdiction and venue

"Jurisdiction" means that a court has the power to exercise authority over all persons and things within its territory. ... "Venue" is the geographical location of a particular court

Defendant

an individual, company, or institution sued or accused in a court of law.

Appellant

a person who applies to a higher court for a reversal of the decision of a lower court

Appellee

The party opposing an appeal from a lower court to an appellate court.

Plaintiff

a person who brings a case against another in a court of law.

Original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

Appellate jurisdiction

The authority of a court to review decisions made by lower courts

In personam jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

In rem jurisdiction

Court jurisdiction over a defendant's property.

Long Arm Jurisdiction

a statute that allows for a court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with the state.

minimal contacts

enough contact with a state to justify requiring a nonresident defendant to return to the state for trial

substantial activity

systematic and continuous activity within the forum jurisdiction

forms of ADR

negotiation, mediation, arbitration

judicial review of arbitration decisions

Judicial action may be necessary if either party refuses to submit the dispute to arbitration or refuses to carry out the terms of the award.

Judicial review is usually not an option; the arbitrator's decision on factual and legal issues is deemed conclusive

Regarding mandatory arbitration, where parties are required by statute to arbitrate their dispute, judicial review is far more common.

enforceability of arbitration agreements in contracts

Arbitration clauses in contracts are enforceable, and state contract law is unlikely to undermine them

role of ADR in our justice system

Courts can offer parties an alternative method of dispute resolution that will suit the parties' needs and result in the effective administration of justice.

Burdens of proof in civil cases

The plaintiff has the burden of proving his case by a preponderance of the evidence ("clear and convincing evidence" sometimes required by statute, not CL)

JNOVs

a motion to the judge which in effect says, "given the case provided by the winning party, no reasonable jury could have found in that party's favor as a matter of law.

summary judgment

a judgment decided by a trial court without that case going to trial; an attempt to stop a case from going to trial

service

the formal delivery of litigation documents to give the opposing litigant notice of the suit against them

complaint

a pleading that is filed which must state all of the plaintiff's claims against the defendant, and must also specify what remedy the plaintiff wants. The defendant must respond with an answer.

answer

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

summons

a notice directing someone to appear in court to answer a complaint or a charge

dispositive motions

Motions heard by the court any time before trial that have the effect of deciding and terminating the lawsuit without the necessity of a trial.

Such a motion raises questions of law, not questions of fact.

default judgment

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.

notice pleading

a method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it

counterclaims

Defendant sues plaintiff, and the plaintiff answers by filing a reply

challenges for cause

A challenge that aims to disqualify a potential juror for some stated reason. Typical reasons include bias, prejudice, or prior knowledge that would prevent impartial evaluation of the evidence presented in court.

peremptory challenges

a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.

voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

venire

A panel of prospective jurors. A jury is eventually chosen from the venire.

jury selection procedures

1. summon potential jurors selected at random (venire)

2. appropriate number (6 or 12) will be called into the jury box for the conduct of voir dire examination

3. dismissals are made by the court through either a motion form a party or on its own

discovery process in civil cases

designed to take surprise out of litigation and to ensure that the results of lawsuit are based on the merits of the controversy rather than on the ability, skill, or cunning of counsel; prevent a party or a witness from remaining silent about material facts; ensure that all potential testimony and other evidence are equally available to both parties